IN THE HIGH COUR T OF JUDICATURE AT PATNA Cr.Misc. No.30552 of 2011 Surendra Singh @ Surendra Kumar Singh & Ors. Versus The State Of Bihar ----------- 2 15.11.2011 Heard learned counsel for the petitioners as well as learned Additional P.P. Petitioners are aggrieved by an order dated 04.08.2010 passed by learned Magistrate in G.R. No.2919 of 2008 by which his prayer for discharge purported to be under Section 239 of the Cr.P.C. has been rejected as well as order dated 08-06-2011 passed by learned Sessions Judge in Cr. Revision No.795 of 2010 whereby petitioner’s prayer has been rejected. Simple submission made on behalf of the petitioners happens to be that not only the date and time of occurrence is lacking in the written report, rather none of the witnesses during course of examination supported the occurrence. Also submitted that petitioners along with prosecution party being a Gotia are residing in same dwelling house and so no offence where under charge sheet has been submitted is made out. Also submitted that from perusal of the written report as well as statement of the witnesses, no ingredient of any of the penal offence is made out on account of the fact that both the parties are claiming and counter claiming over the land under 2 dispute and for that submitted that it happens to be a fit case wherein grievance should have been redressed through Civil Court instead of adopting criminal prosecution. At the other hand learned Additional P.P. fairly concedes so far absence of date of occurrence and time of occurrence in the written report is concerned, but at the other hand submitted that from the written report it is evident that an occurrence had taken place at the hands of accused and for that they are liable to be prosecuted. Section 239 of the Cr.P.C. states as “if, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” Another Section at this juncture appears to be relevant which happens to be Section 240 of the Cr.P.C. it reads as “if, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such 3 Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a chart against the accused”. After having chronological reading of both the sections, it is evident that the Magistrate has to form opinion on the basis of the materials, which, the police had submitted in accordance with Section 173 of the Cr.P.C. for drawing an inference whether accused should be proceeded with or not. The order impugned, as is evident, does not speak with regard to scrutiny of those materials by the M agistrate. Apart from this, non-presence of date of occurrence and time of occurrence has been dealt with by the magistrate in pernicious manner contrary to the spirit of Section 239 as well as 240 of the Cr.P.C. The revisional court also failed to appreciate the germ while rejecting the revision petition at the admission stage itself. Consequent thereupon, the successive orders are set aside. Petition is allowed. The matter is remitted back to the learned lower court to decide the matter afresh, in accordance with law. PN (Aditya Kumar Trivedi, J.)