IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2536 of 2009 BABLU MANJHI Versus STATE OF BIHAR ----------- 2. 16.4.2010 After having heard Shri Y.V.Giri Senior Counsel for the petitioner and Shri Dashrath Mehta, learned A.P.P. for the State and having perused the impugned order dated 21.8.2008 passed in Tr. No. 355 of 2008 by Shri U.S. Jaiswal, Judicial Magistrate, Gopalganj, I do not feel inclined to disturb the order. However, I want to point out to the Magistrate who could be seized with the trial to have a look of the provisions of Sections 239 ad 240 of the Cr. P.C.. The provisions of Chapter XIX Cr. P.C were earlier Section 251(A) of the Cr. P.C. 1898 which appears redrafted with some modification or virtually no modification. If one could consider the provisions of Chapter XIX of the Cr. P.C. in the light of the Supreme Court judgment rendered in Centuary Spinning and Manufacturing Co. Ltld. and Ors. Vs State of Maharashtra reported in A.I.R. 1972 S.C. 542 one could find that the provisions of Sections 239 and 240 have always to be read together and be given effect to. While proceeding under the above provisions the Magistrate could find that he has to record three findings that (1) there is ground for presuming that the accused has committed an offence triable under this Chapter, (ii) which offence the Magistrate is competent to try and (iii) in his opinion the same 2 could be adequately punished by him. It is only when the Magistrate has recorded the above findings after perusing the police report and the documents sent therewith under Section 173(2) of the Cr. P.C. that the Magistrate could order framing of charges. The provisions of Sections 239 and 240 which I have pointed out just above, was Section 251(A) in the Cr. P.C. 1898 which was considered by the Supreme Court in the above decision of the Century Spinning and Manufacturing Co. Ltd. Case and an elaborate finding about the ambit and scope of the provision was recorded. It may not be easy for the Magistrate to get the report but I believe the counsel for the petitioner could make it available to him during the course of argument on a petition which the petitioner may be filing before the Magistrate in due course of time. The Magistrate has always to keep in his mind that the decision of the Supreme Court in State of Bihar Vs. Prof. Ramesh Singh reported in A.I.R. 1977 S.C. 2018 is not universally applicable. Further, the jurisdiction of courts in framing charge or passing an order of discharge which are envisaged under the various provisions of the Cr. P.C. are quite distinct and separate from each other and different findings are required to be recorded by the courts which could be making a hearing on such an issue. As such, the court has first to free its mind from the shackles of State of Bihar Vs. Prof. Ramesh Singh and then to proceed to dispose of the case. 3 What I want further to point out is that the court should not be bogged down by the present order or the order taking cognizance which could have been passed by the superior court like the Chief Judicial Magistrate. The other point is that the Magistrate hearing the case under Sections 239 and 240 of the Cr. P.C. has always to believe that he is the only arbiter of the issue and he has not to be influenced by any observation, or any orders passed by any other court and further that the order has to be passed exclusively on the factual matrix of the case in the light of the settled position of law. With the above direction and under the belief that the Magistrate shall be passing a proper order at the proper state of the trial, the petition stands disposed of. Kanth ( Dharnidhar Jha, J.)