IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1022 of 2008 BASANT SHUKLA, Son of Late Nathuni Shukla, R/o Pakariya, P.S. Nautan, District West Champaran ….. Petitioner Versus 1. STATE OF BIHAR 2. Manager, Bettiah Ra, Office of Manger Bettiah Raj (Under the Control of Wards), Bettiah ……. Opp. Parties. ----------- For the petitioner : Mr. Ashutosh Kumar For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None O R D E R The petitioner, one of the FIR named accused of Bettiah (Mufassil) P.S. Case No. 296 of 2004 registered under section 420 IPC has prayed for the quashing of order dated 1.12.2007 passed therein by Sri R.N.S. Pandey, Judicial Magistrate, Bettiah, whereby the application preferred by him under section 239 Cr.P.C. for his discharge has been rejected. It may be stated at the very out set that the informant, the Manager of Bettiah Raj, impleaded herein O.P. No. 2 was duly noticed to show cause but notwithstanding the valid service of notice he has not chosen to appear and context the case. The facts of the case may be noted briefly. The O.P. No. 2 herein filed a written report inter alia stating that co-accused Nathuni Raut was an employee of Bettiah Raj and he had been provided with some land by the Ex-Bettiah Raj. It is alleged that the said Nathuni Raut out of the provided lands sold some 10 decimals 2 of land out of khata no. 2, khesra no. 155 to the petitioner in an illegal manner and that the sale was made on 17.12.1972 on a non judicial stamp paper in an illegal manner and that the petitioner had constructed a complete house thereupon. It has been stated that the land which had been sold to the petitioner was against the law since no land belonging to Bettiah Raj could be sold or purchased by any one as the same was under the management and control of the Court of Wards under the jurisdiction of Patna High Court. It appears that on the basis of a presumptive opinion that there was insufficiency of materials for the court to proceed against him the petitioner filed a petition for his discharge under section 239 Cr.P.C. which was rejected by the impugned order. The submission on behalf of the petitioner is that there being absolutely no legal material available in the case records against him to show the commission of an offence under section 420 IPC by him, the learned Magistrate had mechanically rejected his petition without applying his mind only on the ground that cognizance had been taken and there was sufficient materials in the records against him without making any reference to what those materials there. Admittedly, the provisions of Section 239 Cr.P.C. is very much akin to those incorporated in Section 227 Cr.P.C. .The crucial point to be considered in the section is the expression “and records his reasons for so doing”. The object of this phraseology of recording reasons, in my opinion, is to enable the superior court to examine the 3 correctness of the reasons assigned for holding that there is or is not sufficient grounds for proceeding. It would therefore follow that the Magistrate is entitled and indeed has a duty to consider the entire materials available on record and also give an opportunity of hearing to the accused and consider the same before passing the orders. It is never expected that the Magistrate should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. At least some reasons are required to be assigned for arriving at the conclusion. In the instant case, a perusal of the impugned order reveals that the same is not in consonance with the spirit and requirement of the Section and no cogent reasons have been assigned for rejecting the petitions of the petitioners. Taking of cognizance can never be deemed to be a ground for proceeding with the case. Had it been so, then provisions like Sections 227,239 and 245 I.P.C. could never have found place in the Code of Criminal Procedure. Again, stating that there were sufficient materials without referring to some of them could not justify the order. Accordingly, the impugned order falling short of the legal requirement cannot be sustained in law. The same is accordingly set aside and the application is allowed. The matter is remitted back to the court below for reconsideration and disposal of the same in accordance with law after hearing the parties. Patna High Court, Patna. Dated : The 22nd of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)