IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34749 of 2010 RAJA BABU & ORS Versus STATE OF BIHAR ----------- For the Petitioners : Shri S.N.P. Sinha, Sr. Advocate For the O.P.: Shri Dashrath Mehta, APP --------- 2/ 27.10.2010 Heard learned counsel for the parties. The present petition questions the propriety of order passed on 21.7.2010 on an application filed by the petitioners before the S.D.J.M., Vaishali at Hajipur in G.R. No. 3177 of 2003 for stopping the proceeding and discharging the petitioners under section 258 of the Cr. P.C. It appears that the petition was wrongly mentioned to be one under section 239 of the Cr.P.C. The learned S.D.J.M., after hearing the parties, went on to hold that said provision of section 239 of the Cr.P.C. was not applicable to the trial of summons cases by a magistrate under Chapter XX of the Cr.P.C. The plea which has been set up by the petitioners before this Court and, which appears submitted before the court below also, was that the quantity of food grains taken together, was not such which could attract the provisions of Essential Commodities Act so as to legitimize the prosecutions of the petitioner in G.R. 3177 of 2003. It is true that section 239 of the Cr. P.C. does not form part of Chapter XX of the Code, it is in Chapter IXX, which relates to trial of warrant cases initiated on police report. But, 2 the court below must have been aware of the provision of section 251 of the Cr.P.C. which indicates that when an accused appears or is brought before the magistrate, the particulars of the offence of which he is accused, shall be stated to him and he shall be asked whether he is guilty or has any defence to make. In any event, it was not necessary that the charges should be framed. As soon as the law requires that the particular of accusation have to be explained to the accused, then it pre- supposes that the same could be done only when there is viable relevant material before the court to assume that there could be some accusation legally to be brought against the accused so that he could be asked to explain by pleading guilty or by pleading not guilty to offer a defence. When law requires giving ‘particulars’ of any particular offence, it means that the court has to find out those details constituting an offence so that the same could be clearly brought into the notice of an accused who could prepare his defence. If the facts of a case or the materials connected with the allegations do not make out any offence, then there could not be any exercise to be undertaken under section 251 of the Cr.P.C. This may also be pointed out that branding a petition wrongly by inserting a wrong provision may not be making it otiose or meaningless. The substance of pleas has to be considered and the same has to be adjudicated upon. It is too well known to be pointed out that after 3 formulation of Bihar Trade Articles (Licenses Unification) Order, 1984 and after GSR No. 49 dated 17th October, 1985, the State Government has not promulgated any notification in the light of the provisions of that particular notification classifying the cities of Bihar in different categories. The storage limits which have been fixed by the above noted notification are meant to be applicable to a particular class of city or cities. If there is no notification classifying the cities or different places in Bihar in different classes of cities, then the storage limit fixed by G.S.R. No. 49 dated 17th October, 1985 could not be applicable to any fact or under any allegation. The total recovery which was alleged by the informant in his written report was of 26.5 quintals of rice and wheat taken together, wheat was found kept in 23 bags, each bag weighing 50 Kgs and rice was kept in 15 bags, each weighing 50 Kgs. As just pointed out, there being a complete absence of any notification of classification of cities, the storage limit, which was fixed by G.S.R. No. 49 dated 17th October, 1985 could not be said to be attracted under the facts of the present case. More over, even if one could assume that the notification could be attracted to the facts of the present case also, the storage limit fixed by the above noted G.S.R. indicates that the storage limit of wheat was removed by the Central Government. The rice which was seized from the possession of the petitioners was weighing only 15 quintals, which was much 4 below the storage limit fixed by G.S.R. No. 49 dated 17.10.1985. In the light of the above discussions, the court feels that there was no material constituting any offence and as such, the accused could not be pointed out or explained the accusation against him under section 251 of the Cr.P.C. It was a fit case in which the proceedings must have been stopped under section 258 of the Cr.P.C. and the accused discharged. Accordingly, the petition succeeds. The proceedings in the court below are hereby quashed on account of being devoid of any substance. Anil/ ( Dharnidhar Jha, J.)