IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.12670 of 2011 Kedar Prasad Singh & Ors. Versus The State Of Bihar & Anr. ------------ For Petitioners:- Mr. Rajesh Kumar, Adv For the State:- Dr. Mayanand Jha, APP For Opposite Party No.2:- Mr. Shiv Shankar Sharma, Adv --------- 4/ 19thOctober 2011 Supplementary affidavit filed and has been kept on record. 2. Petitioner has challenged order dated 25.02.2011 passed by Sri Mukesh Kumar, Judicial Magistrate, First Class, Hajipur in Complaint Case No.3109 of 2007, Trial No. 1468 of 2011 whereby and whereunder prayer of the petitioner purported to be under Section 245 Cr.P.C. has been rejected. 3. Heard learned counsel for the petitioners, learned counsel for the State as well as learned counsel for the O.P. No.2. 4. A complaint was filed by the O.P. No.2 before learned C.J.M. disclosing therein that to procure an ex parte order from the court of DCLR bearing Ceiling Case No. 10/90-91 under Section 16(3) (i) of Bihar Land Reforms Fixation of Ceiling Area and Acquisition 2 Contd 19.10.2011 Surplus Land ) Act, the opposite party (petitioner before this Court) in connivance with process server got a forged and fake execution report duly endorsed by one of the witnesses, Rajesh Kumar and on the basis thereof succeeded in getting ex parte order. 5. Contention on behalf of the petitioner is that the matter in hand should not have proceeded in light of barrier prescribed under Section 195 of the Cr.P.C. because of the fact that whatever offence so alleged, that relates to a proceeding pending before the competent court of justice. Also submitted that the aforesaid order has got finality on account of lapse of time though an appeal is pending before the Commissioner. Also submitted that neither any enquiry under Section 340 of the Cr.P.C. was conducted by the court concerned nor such prayer was made on behalf of the complainant before the court concerned so much so that no prosecution was launched by the court concerned on its own. For that also put reliance upon a decision reported in 2001(2) PLJR 101. 6. On the other hand, learned counsel for O.P. No.2 submitted that after all O.P. No.2 happens to be the 3 contd 19.10.2011 aggrieved person as by the illegal act of accused persons he has suffered a loss by way of having ex parte order against him and so as per decision reported in AIR 2005 SC 2119, the complaint in its present form happens to be maintainable. Also submitted that the discharge is permissible only in case when the evidence, if unrebutted, would not attract punishment. So submitted that the order passed by learned lower court is fit to be rejected. That happens to be the submission of learned APP. 7. Section 245 Cr.P.C. says:- “ (1) if, upon taking all the evidence referred to under in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless” 8. After going through the order impugned it is evident that Magistrate had failed to comply with sub- section-1 of Section 245 of the Cr.P.C. The Magistrate failed to consider and scrutinized the evidence whatever been produced during course of Section 244 of the Cr.P.C. on behalf of complainant rather confined himself 4 contd 19.10.2011 to the legal aspect roaming in between Section 340, 195 of the Cr.P.C.. The law, as is evident, requires scrutiny of the facts and the formation of opinion by the Magistrate over the evidence whatever been adduced and produced by the complainant during the stage before charge so guided by under Section 244 of the Cr.P.C. As such, the order impugned is set aside. Consequent thereupon petition is allowed. 9. The matter is remitted back to the learned lower court with a direction to proceed afresh in accordance with sub-section 1 of Section 245 of the Cr. P.C. perwez ( Aditya Kumar Trivedi, J.)