IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32727 of 2010 RAM UDAR SINGH Versus STATE OF BIHAR & ANR ----------- 2. 22.9.2010 Heard Shri Shakeel Ahmad Khan, learned Senior counsel appearing for the petitioner and Shri Dashrath Mehta, learned A.P.P. for the State. It is true that the informant has also been impleaded as a party but considering the limited point of law which has been raised before this Court, I gave up the idea of sending a notice to opposite party no. 2 Ishwarchand Sahu because even if he is not heard it could not be heaping justice upon a person without being heard.. I need not go into the factual details of the case save and except to note that the written report was the basis of First Information Report of Nawanagar P.S.Case No. 85 of 2009 in which on submission of charge sheet against the petitioner, cognizance was taken by the Chief Judicial Magistrate, Buxar, and the case was transferred to Shri U.K.Sharma, Judicial Magistrate, Ist Class, Buxar. When the trial was take up, the petitioner filed a petition for getting an order of discharge from the learned Magistrate and that petition appears disposed of by order dated 17.8.2010. While passing the impugned order, the learned Magistrate, observed that because the C.J.M. had taken cognizance of offences under Sections 409 and 420/34 of the 2 Indian Penal Code after perusing the police report on facts constituting the offence and there being no change in the circumstances, in his opinion, it was not justifiable for him to discharge the petitioner as there was no basis for that. If one considers Chapter XIXA of the Cr. P.C., specially, the provisions of Sections 239 and 240 of the same, one could come to only one conclusion that the jurisdiction of a Magistrate who was to act under those provisions was quite cut out. For passing the order under either of the two Sections, the materials to be considered by the Magistrate are also indicated by the two provisions, specially, by Section 239 Cr. P.C.. It is categorically pointed out by the provision contained in Section 239 Cr. P.C. that the police report and the document sent with it under Section 173 Cr.P.C. were only to be considered, besides other things as indicated by the same provision for finding out as to whether the charge was groundless. It does not indicate that the Magistrate was to be influenced by any judicial record or finding of any court superior to him. Likewise, when the Magistrate was to proceed to frame a charge against an accused as per the provision of Section 240 Cr. P.C., the same consideration has to be made and three findings have to be recorded on perusal of the police report and the connected documents. The Magistrate has to record that there was sufficient ground to presume that (1) the accused who was facing the trial had committed an offence and further that (2) that 3 the offence could be adequately punished under that particular chapter by the Magistrate. Not only the Magistrate has to consider his competence of trying such offence but has also further to consider his competence of adequately punishing him. If these findings have been positively recorded by the Magistrate on perusal of the police report and the documents submitted under Section 173 Cr. P.C. then the Magistrate may be said to have any jurisdiction to proceed under the twin provisions of Sections 239 and 240 Cr. P.C. This Court is often finding that the Magistrates of the State are dismissing the prayer for discharge merely by referring to the orders of cognizance passed earlier by the Chief Judicial Magistrates or the Additional Chief Judicial Magistrates and rarely are found going through the police report so as to finding out the three reasons for framing of charges as are required to be noted down by him while proceeding under Sections 239 and 240 Cr. P,C. It may not be out of context to point out that even if the Magistrate finds that there is ground to presume that the accused has committed an offence but finds that he is not competent to try even some of the offences out of many or the only offence, and further if the Magistrate finds that he does not have the jurisdiction to adequately punish the accused who was sent to him for trial, then he must part with the record and make a reference under other sections, like, 323 and 325 Cr. P.C. to 4 the C.J.M. for passing appropriate judicial order. In that situation also, the Magistrate may not proceed to frame the charge. In the light of above discussions, the matter is remitted back to Shri U.K.Sharma, Judicial Magistrate, Ist Class, Buxar or his successor in office for rehearing the parties and passing a fresh order in the light of the provisions indicated above by setting aside the order passed by him on 17.8.2010 in Nawanagar P.S.Case No. 85 of 2009, G.R. No. 1172 of 2009. The petition succeeds and is allowed in the above terms. Kanth/A.F.R. ( Dharnidhar Jha, J.)