IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42233 of 2006 1. Dharmendra Kumar Dheraj @ Tuntuu 2. Saroj Kumar @ Jhunjhun Both sons of Surendra Prasad Yadav, r/o village- Badi Lagar, P.S. Parbatta, Distt.- Khagaria. … Petitioners. Versus 1. State Of Bihar 2. D. K. Sinha, Officer-In-Charge, Parbatta Police Station, P. S. Parbatta, Distt- Khagaria. … Opp. Parties. ----------- For the petitioners : Mr. N. K. Agrawal, Sr. Adv. : Mr. Ranjan Kumar Jha, Adv For the State : Mr. Rajendra Nath Jha, APP --------- 7. 19.02.2010 Heard Mr. N. K. Agrawal, learned senior counsel for the petitioner and Mr. Rajendra Nath Jha, learned counsel for the State. In this case, the impugned order dated 24.8.2006 refusing the prayer of the petitioner for their discharge has been assailed by Mr. Agrawal on the ground that there is absolutely no material in the case-diary to sustain any part of requirement of ingredients under Sections 25/26/35 of the Arms Act. Mr. Agrawal, in this context, has referred to first information report lodged by the police officer and the connected version of the police personnel recorded in the case-diary which go to show to the extent that when the raiding party had raided the 2 premises of one Umesh Prasad Yadav and found a country made rifle and few cartridges kept below the chauki, the Police thereafter is said to have also arrested these two petitioners who are said to have been escaping away from the place of occurrence even though on their search no arms/ammunition or even cartridges was found from their conscious possession. Mr. Agarwal, thereafter, has also referred to the statements of Bhramdeo Yadav and Shashikant Yadav also recorded in paragraph 60 of the case-diary who too have only said that they had heard that one rifle and 12 cartridges were recovered from the house of Umesh Prasad Yadav which actually had belonged to these two petitioners. On these materials, Mr. Agrawal has submitted that there was actually nothing to connect the petitioners in connection with offence under Arms Act where either conscious possession or being aware of existence of arms recovered even from others' possession alone is punishable. Mr. Rajendra Nath Jha, on the other hand, would submit that this court in exercise of power under Section 482 of the Code of Criminal Procedure is not 3 expected to scan the materials on record inasmuch as the scope of discharge under Section 239 Cr.P.C. is very limited. Having given anxious consideration to the aforesaid submissions, this court would find the present case would definitely be one in the category of being “groundless” in terms of Section 239 of the Code of Criminal Procedure. For coming to the said conclusion, this Court has not only perused the case-diary but also looked into the statements of all the witnesses who had all along stated that the recovery of arms and ammunition was made from a Chauki in the house of Umesh Prasad Yadav and these two petitioners were being suspected only on account of their being seen fleeing away from the place of occurrence though on such search of their person were found to be not in possession of any arms/ammunition. There is also nothing in the statement of the police officer or two witnesses recorded in paragraph 60 of the case-diary which would go to show that the petitioners were aware of existence of arms/ammunition in the 4 premises of Umesh Prasad Yadav. In that view of the matter, this Court would find that the court below did not go into the material while considering the prayer for discharge of the petitioners in an appropriate manner. Court below in exercise of power under Section 239 Cr.P.C. was not expected to hold a mini trial but then it had to take into account the police report and the documents enclosed therewith and had to find out whether the ingredients of the offence are made out from the police report and/or the connected documents. There being however no such materials in the police report or the documents, against the petitioners their prosecution has to be held to be based on groundless materials and that is how under Section 239 Cr.P.C. an accused can be discharged in absence of any material in the police report/documents. As noted above, this court has found from perusal of the case-diary that there is no material to connect the petitioners and therefore this court must hold that the prosecution of the petitioners for offence under Section 25/26/35 of the Arms Act would amount to abuse 5 of the process of the court. That being so, the impugned order dated 24.8.2006 is set aside and the prosecution of these two petitioners is quashed. This application is, accordingly, allowed. kanchan (Mihir Kumar Jha, J.)