IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39596 of 2010 PARIMAL KUMAR SAHA Versus STATE OF BIHAR & ANR ----------- 02. 24.11.2010 After having heard the learned counsel for the petitioner and also Mr. D.Mehta, learned Additional Public Prosecutor for the State, the Court finds that both the Courts below i.e. the Chief Judicial Magistrate, Araria who passed an order on 15.11.2006 in G.R. Case No. 144 of 2000, Araria P.S. Case No. 39 of 2000 as also the learned Additional Sessions Judge I, Araria who allowed Criminal Revision Petition No. 53 of 2007 by order dated 22.03.2010 were falling in error of law. The learned C.J.M. was holding that the act of tearing a page of attendance register by accused, Parimal Kumar Saha may not be an offence under Section 379 of the Penal Code and as such, that particular accused was liable to be discharged and, accordingly, that accused, Parimal Kumar Saha was discharged by his order passed on 15.11.2006. When that particular order passed by the learned C.J.M., Araria was challenged before the learned 2 Additional Sessions Judge, Araria in the afore-noted Criminal Revision No. 53 of 2007, the learned Additional Sessions Judge was taking a completely illegal view of law when he observed: “In the light of these rulings the impugned order dt. 15.11.06 discharging the accused for offence u/s 379 I.P.C. by the C.J.M., Araria amounts to review of the order of cognizance dt. 9.5.2000 passed by his predecessor the then C.J.M., Araria which he is not entitled to do under law. Hence in the light of these rulings impugned order dt. 15.11.06 is bad in law. Hence it is set aside.” As may appear from the above quoted paragraph from the order of the learned Additional Sessions Judge, he was treating the order of discharge passed by Court of learned C.J.M. as a revision of the earlier order passed by the same Court by which it took cognizance of an offence. If the learned Additional Sessions Judge could have consulted the provisions of Section 204 Cr.P.C. as also that of Sections 239 and 240 of the Cr.P.C., this Court believes, he must not have fallen in the error of law as appears apparent from his 3 order. An accused is summoned merely because there is sufficient ground to proceed against him. However, an order of discharge which has to be passed against an accused in the light of the provisions of Sections 239 and 240 of the Cr.P.C. only when an accused appears having committed no offence which could be tried by that particular Magistrate and be adequately punished by him if he is found committing an offence. Committing an offence is quite different from there being the sufficient ground for summoning an accused. An accused could be summoned on mere suspicion but when it comes to framing of the charges under Section 240, then, a presumption has to be raised on the material placed before the Court that the accused had committed an offence which was certainly different, which appears not appreciated by the learned Additional Sessions Judge directing the framing of the charges under Section 379 of the Penal Code. The allegation is that a single page from the attendance register was torn away by the petitioner. It is doubtful whether it could be constituting an offence under Section 379 of the I.P.C. However, the facts 4 constitute an offence of mischief for which the trial has to go on. Accordingly, the order passed by the learned Additional Sessions Judge is hereby modified and it is directed that the learned Magistrate who might have received the records of G.R. Case No. 144 of 2000 arising out of Araria P.S. Case No. 39 of 2000 shall proceed to explain the acquisition to the accused for committing an offence under Section 426 of the Penal Code. This petition is disposed of with the above directions. Saurabh ( Dharnidhar Jha, J.)