IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42867 of 2010 OM PRAKASH PRASAD & ORS Versus THE STATE OF BIHAR ----------- 03. 13.04.2011. After having heard Sri Chitranjan Sinha, learned senior counsel appearing for the petitioners and after having gone through the written report and the order of the lower court, this court feels that Sri B.K.Singh, Judicial Magistrate, Ist Class, Arrah, who was passing the order on 5.10.2010 in G.R.No.1780 of 2008, Tr.No.2959 of 2008, was unnecessarily valuing the order of cognizance passed by the Chief Judicial Magistrate, Arrah. While hearing the petition under Sections 239 and 240 of the Cr.P.C., this court has pointed out on earlier occasions, that an order of cognizance by any court could never be germane or relevant to passing an order either under Section 239 or Section 240 of the Cr.P.C. What the court has to consider is the police record which could had presented to it and the materials contained therein and thereafter to have identified three of the elements which has to be pointed out in an order either of framing charges or 2 discharging an accused. The contents of the case diary may be indicated in a summary manner but the three things on that basis has definitely to be noted down that, firstly, the accused appeared committing any offence, secondly, and that offence was within the jurisdiction of the Magistrate to be tried and, lastly, that he was competent to inflict appropriate sentence as well. If the Magistrate could consider the provisions of Sections 322, 323 and 325 Cr.P.C he could understand as to why the competence of a Magistrate on trying an offence or inflicting the appropriate sentence has been put down under Sections 239 Cr.P.C. It may also be pointed out for the guidance of the Magistrate that whether it was a petition under Section 239 or 240, the two provisions have to be read together and considered together and thereafter an order has to be passed. When the Magistrate was referring to the order of cognizance passed by the Chief Judicial Magistrate, Arrah he was completely falling in error. That part of the impugned order could not be approved by this court. As regards the other part, in spite of the 3 fallacy it does not require interference by this court. Whatever defence the petitioners could have in his possession that could be produced before the trial court at the appropriate stage of trial. The petition is dismissed with the above observations. B.Kr. ( Dharnidhar Jha,J.)