IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45116 of 2006 1. Rakesh Kumar Singh @ Rakesh Kumar @ Rakesh Singh,Son of Mahesh Prasad Singh 2. Rambha Devi W/O Rakesh Singh, Both residents of Mohalla- Pankha Toli ( Back of Ambaddador Hotel), Kazi Mohammedpur, Muzaffarpur --------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Smt. Rubi Kumari W/o Sri Rajesh Kumar Raja. R/O Dhanaur, Lodge, Pankha Toli , Muzaffarpur. ---- Opp.Parties ----------- WITH Cr.Misc. No.39191 of 2006 1. Mahesh Prasad Singh ,son of Late Harishchandra Prasad 2. Prabha Devi ,W/O Shri Mahesh Prasad Singh Both residents of Mohalla-Pankha Toli ( Back of Ambassador Hotel), Kazi Mohammedpur, Muzaffarpur -------------------- Petitioners Versus THE STATE OF BIHAR ------ Opp.Party ----------- In both cases For the petitioners: M/S Ajay Kumar and Upendra Prasad Sinha, Advocates For the State : Dr. Maya Nand Jha, A.P.P. For Opp.Party no.2: None. ----------- O R D E R Both these cases have been taken up together as both the cases filed by two sets of accused is for the quashing of the order dated 10.8.2006 passed by the learned Sub Divisional Judicial Magistrate, Muzaffarpur (West) in Kathaiya P.S. Case No.70 of 2004, G.R. No.1066 of 2004, whereby he has rejected the two petitions filed by the petitioners of the two cases for their discharge under Section 239 Cr.P.C. by this common order. At the very outset it may be noticed that the informant had - 2 - been noticed to show cause in Cr.Misc.No.45116 of 2006 and although she appeared by filing a Vakalatnama, yet curiously neither has any show cause been filed nor did anyone appear on her behalf at the time of hearing of these cases. It appears that on the basis of the presumptive opinion that there was insufficiency of materials for the court to proceed against them the petitioners of Cr.Misc.No.45116 of 2006 filed a petition for their discharge on 1.5.2006 and the petitioners of Cr.Misc.No.39191 of 2006 followed suit by filing a similar petition on 1.6.2006 both of which were rejected by the common order dated 10.8.2006. The common submission in both cases is that there being absolutely no legal material available in the case records against them to show their complicity in the alleged offences, the learned Magistrate had mechanically rejected their petitions without applying his mind only on the grounds that cognizance had been taken and that there was sufficient materials in the records against them without making any reference to what those materials were. Admittedly, the provisions of Section 239 Cr.P.C. is very much akin to those incorporated in Section 227 Cr.P.C. .The crucial point to be considered in the section is the expression “and records his reasons for so doing”. The object of this phraseology of recording reasons, in my opinion, is to enable the superior court to examine the correctness of the reasons assigned for holding that there is or is not sufficient grounds for proceeding. It would therefore follow that the Magistrate is entitled and indeed has a duty to consider the entire materials available on record and - 3 - also give an opportunity of hearing to the accused and consider the same before passing the orders. It is never expected that the Magistrate should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. At least some reasons are required to be assigned for arriving at the conclusion. In the instant case, a perusal of the impugned order reveals that the same is not in consonance with the spirit and requirement of the Section and no cogent reasons have been assigned for rejecting the petitions of the petitioners. The reasons assigned herein are two fold: one that cognizance has been taken and the second that there are sufficient materials. Taking of cognizance can never be deemed to be a ground for proceeding with the case. Had it been so, then provisions like Sections 227,239 and 245 I.P.C. could never have found place in the Code of Criminal Procedure. Again, stating that there were sufficient materials without referring to some of them could not justify the order. Accordingly, the impugned order falling short of the legal requirement cannot be sustained in law. The same is accordingly set aside and both the applications are allowed. The matter is remitted back to the court below for reconsideration and disposal of the same in accordance with law after hearing the parties. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 22nd May,2009 Nawal Kishore Singh/A/.F.R.