IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4428 of 2008 1. ANIL KUMAR NIRALA 2. Manoj Kumar Both sons of Ram Krishna Prasad, R/o village Jandaha, P.S. Jandaha, District – Vaishali ……. Petitioners Versus THE STATE OF BIHAR ……. Opp. Party For the petitioner : Ms. Anuradha Singh, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. ----------- O R D E R The two F.I.R. named accused of Jandaha P.S. Case No. 29 of 2001 registered under section 47(A) of the Bihar Excise Act have prayed for the quashing of the order dated 18.8.2006 passed therein by Sri A.K.Pandey, Judicial Magistrate, 1st Class, Hajipur, whereby he has rejected the petition filed by the petitioners for their discharge. The prosecution case in brief is that the Officer Incharge, Jandaha P.S. on receipt of confidential information along with a posse of policemen raided the wine shop premises of the petitioners running in the name and style of “Chhalakta Jaam” at about 3.30 P.M. on 7.3.2001 and in course thereof from a back room of the premises recovered 115 cartoons of various brands of foreign liquor. Finding the same to be at variance with the stock register produced by the petitioners, who at the relevant were present in the premises, all the cartoons with their contents of foreign liquor were seized under a seizure list and the petitioners were arrested. 2 Assailing the impugned order the submissions advanced on behalf of the petitioners is that they are unnecessarily sought to be prosecuted and that the learned Magistrate in utter disregard to the factual matrix of the case had taken cognizance. In this connection it was submitted that petitioner no. 2 is a valid licencee of foreign liquor shop and petitioner no. 1 is his brother and notwithstanding the same both the brothers were arrested. It was further submitted that the falsity of the case would be apparent from the fact that the District Magistrate, Vaishali, vide his letter no. 381 dated 17.3.2001 had directed for release of all the 115 seized cartoons of foreign liquor as petitioner no. 2 was a valid licencee and also directed for reopening of the liquor shop and in pursuance thereof the Superintendent of Police wrote to the Officer Incharge, Jandaha P.S. to release all the foreign liquor seized from the premises of the petitioners and the orders were diligently carried out forthwith. This, according to the learned counsel for the petitioners was because the District Magistrate was of the opinion that no case was made out against the petitioners. The grievance of the petitioners is that notwithstanding all these facts in their favour the learned Magistrate mechanically rejected their prayer for discharge only because cognizance had been taken in the case. Section 239 Cr.P.C. is akin to sections 227 and 245 Cr.P.C. and when read conjointly with section 240 Cr.P.C. it is abundantly clear that before a charge or charges are framed, it is incumbent upon the trial court to consider the materials placed 3 before it to decide whether charges should be framed against the accused and if the accused argues for his discharge the trial court is duty bound to consider the contentions raised by the accused and only thereafter pass a reasoned order. As observed in R.S. Nayak vs. A.R. Antulay (AIR 1986 SC 2045) when the Magistrate considers the charge against the accused to be groundless he is under an obligation to discharge the accused. The word „groundless‟ employed in section 239 Cr.P.C. would obviously mean that the materials placed before the court do not make out or are not sufficient to make out a prima facie case to proceed against the accused. In the instant case, in view of petitioner no. 2 being a valid licencee the District Magistrate had directed for the release of all the 115 cartoons of foreign liquor seized in course of the raid and had also directed for the reopening of their shop. Apparently nothing remained for the Magisterial Court to proceed with the case. Apparently the learned Magistrate appears to be remiss about the order of the District Magistrate and got swayed by the fact that cognizance had been taken. Taking of cognizance cannot be a relevant factor for deciding whether the accused should be discharged. What he is required to see is whether there was any ground for presuming that the accused had committed the offence. That not being the position in the instant case, the non-discharge of the petitioners was an apparent abuse of the process of the Court which could not be sustained in law. 4 Accordingly, the impugned order is quashed and the application is allowed. By quashing of the impugned order it follows that the two accused stand discharged. Patna High Court, Patna. Dated : The 2nd of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)