IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.38958 of 2011 1. Birendra Sharma @ Birendra Singh late Prasiddha Sharma. 2. Shakuntala Devi wife of Birendra Sharma. 3. Guddu Sharma son of Birendra Sharma. 4. Pammi Devi wife of Guddu Shamra. 5. Soni Kumar d/o Birendra Sharma., all resident of village Nawadiha, P.S. Daudnagar, Distt-Aurangabad (Bihar)…….Petitioners Versus 1. The State Of Bihar 2. Yogendra Sharma son of late Bilash Sharma, r/o village- Nawadiha, P.S.Daudnagar, Distt-Aurangabad (Bihar)…..Opposite Parties. ------------------ For petitioners:- Mr. Anil Kumar Sinha, Adv. For O.P. No.2:- Mr. Vishwanath Pd. Sinha, Sr. Adv Mr. Arun Kr. Singh, No.2 Adv ---------------------------------- 2/ 13/12/2011 Heard learned counsel for the petitioner and learned counsel for O.P. No.2. 2. Learned counsel for the State is absent. 3. Petitioner has prayed for quashing of order dated 6.9.2011 passed by learned Sessions Judge, Aurangabad in connection with Cr. Revision No. 52/2011 as well as order dated 31.5.2011 passed by SDJM, Daudnagar in connection with Complaint Case No. 266/2010 whereby and whereunder successively the prayer of the petitioners for discharge has been rejected. 4. During course of argument petitioner has bifurcated their status in two parts. The first happens to be 2 relating to petitioner, Birendra Sharma @ Birendra Singh and the second happens to be with regard to others. So far case of Birendra Sharma is concerned, fairly submitted that for the present, there happens to be some sort of material and therefore plea of discharge on his behalf is not being placed. 5. So far other petitioners are concerned, it has been submitted that no specific allegation has been alleged against them. Petitioners, more particularly, member of inmates have purposely been made accused with mala fide intention to coerce the petitioners to return back the land without asking for the money which the petitioner no.1 have paid to complainant on the eve of marriage of his daughter. To support the aforesaid theme, placed Annexure-5, photo copy of certified copy of Daudnagar P.S. Case No. 145/2009 drawn by Yogendra Sharma, Complainant against one of his sons. 6. Also submitted that during course of examination of witnesses before charge, they also stood in vagueness so far petitioner no.2 to 5 are concerned. As such, the case of petitioners no. 2 to 5 stood on much better footing and is fit for consideration. 7. On the other hand, learned counsel for O.P. 3 No.2 submitted that presence of petitioners no.2 to 5 was not at initial stage when the document in question was created rather at subsequent stage when they along with petitioners no.1 assaulted the complainant on account of query made by him when the petitioner no.1 failed to abide by to act upon in terms agreed amongst them. Therefore, there happens to be no vagueness. 8. For the present purpose, meticulous examination of witnesses is not at all permissible. Therefore, scrutiny of evidence whatever been laid on behalf of O.P. No.2 in accordance with 244 of the Cr.P.C. is not being scrutinized but I would like to refer particular provision having visualizing which could redress the remedy of the ailment from which petitioners are suffering and for that Section 245(2) is incorporated here:- “245(1) xxxxxxxxxxxxx . 245(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.” 9. That means to say the Magistrate is given extraordinary power to be exercised by him during course of conduction of trial to see that the evidence whatever been 4 produced, adduced by the complainant is not to the extent of, if unrebutted, would warrant conviction of the accused on record is certainly got empowered to exercise the same as provided under Sub-Section-2 and will discharge the accused. 10. The order impugned does not speak that the learned lower court had appreciated the evidence in terms of Sub-Section-2 of Section 245 of the Cr.P.C. 11. As such, the petitioners will be at liberty to pray before the learned lower court in terms of Section 245(2) of the Cr.P.C. and the learned lower court will see whether the prayer of the petitioners happens to be within the coverage thereof and then by a reasoned order will dispose of the matter. 12. With the aforesaid observation, the instant petitioner is disposed of. perwez (Aditya Kumar Trivedi,J.)