- (1.) HEARD learned counsel for the petitioner and learned AGA.
(2.) FROM the record, it transpires that chargesheet was submitted against applicant under Sections 419, 420, 467, 468, 471 IPC. Petitioner had filed Criminal Misc. Case No. 2742 of 2007 (u/s 482 Cr.P.C) which was disposed of finally on 23.04.2009 by Hon'ble Mr. Justice D.V. Sharma (Retd.) directing the petitioner to move application under Section 239 Cr.P.C. which was to be disposed of within 30 days. Another petition was filed by the petitioner being Criminal Misc. Case No. 3294 of 2009 (u/s 482 Cr.P.C.) which too was disposed of on 11.09.2009 with the direction to consider the bail application, if possible on the same day. In pursuance of this judgment, petitioner concerned had got himself bailed out on 23.09.2009, thereafter, she moved application to discharge under Section 239 Cr.P.C. before the Chief Judicial Magistrate, Gonda, raising that defendants of suit are wrongly claiming the ownership of the property on the basis of sale deed. Civil Suit no 49 of 1991 was pending for cancellation of the sale deed. FIR has been lodged after 15 years. Suit having been dismissed, has been restored on 16.07.2005 and nothing incriminating has been collected or found by the Investigating Officer against the applicant. This application has been rejected by Judicial Magistrate-II, Gonda, which order has been impugned in the instant petition. With the consent of parties, I propose to decide this case finally. Section 239 Cr.P.C. is being reproduced below: "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. "
(3.) FROM the above section, it is manifest that Magistrate has to consider the police report and documents sent therewith under Section 173 Cr.P.C., examine the accused and give opportunity of hearing to both the parties. He can discharge the accused if he finds that charge against the accused groundless and he will have to record reasoning therefor. On the other hand, if he finds the grounds for presuming that the accused has committed an offence then charge will be framed under Section 240 Cr.P.C. Application moved under Section 239 Cr.P.C., raises many grounds, however, learned Magistrate has not considered any ground and has rejected the application by one sentence : "..[VERNACULAR TEXT OMMITED]..." From the above, it appears that learned Magistrate proceeded on the assumption that he has no power to evaluate the materials forwarded by police under Section 173 Cr.P.C. and at that stage, prayer for discharge cannot be entertained. This is in violation of clear mandate of Sections 239 & 240 Cr.P.C. which require a finding by the Magistrate with regard to the charge against the accused being groundless or that there is ground for presuming that the accused has committed offence. This finding was to be recorded upon considering the police report, the documents sent therewith and after hearing both the parties, Magistrate has not considered any document or material forwarded by the police nor has even referred to the contentions raised by the applicant. Magistrate has not applied his mind to the contentions raised by the applicant and provisions of section, thus the order cannot be upheld. Section 239 Cr.P.C. contemplates discharge even before the commencement of the trial which factor has been overlooked by the Magistrate. Thus, order suffers from vice of non- application of mind.;