S.K.AGARWAL, J. - (1.) HEARD learned counsel for the parties and the learned A.G.A. and have gone through the record of the case as well.
(2.) A perusal of the judgment of the learned Magistrate shows that he had recorded reasons in not accepting the charge-sheet and not proceeding against the applicants. A careful examination of his order shows that the learned Magistrate had closely scrutinised the evidence. It appears that the accused per­sons had executed a sale-deed in favour of the informant of their share in the an­cestral property lying in Punjab. Their share in the entire property lying in Punjab as well as in Uttar Pradesh was l/3rd. The accused persons are father and sons. The informant is brother of accused Preetam Singh. The prosecution or the com­plainant has not filed any reply to the affidavit of Preetam Singh. This affidavit discloses that accused Preetam Singh has executed a sale-deed in favour of the in­formant, Dharam Singh, of a part of his share in the entire property, the land lying in Punjab. It can safely be inferred from this averments and it's non-rebuttal that vice versa Dharam Singh will also be re­quired to execute another sale-deed in favour of Preetam Singh and his sons from his share of the property lying in U.P. equivalent to the one Preetam transferred. This is in the nutshell the intention of the learned Magistrate in discussing this part of evidence. He has examined the rest of the evidence in the light of the above ob­servations. He had come to a conclusion that there exists prima facie no evidence for framing any charge under Sections 419/420/467/468/114, I.P.C. According to his order, even the prosecuting officer has also agreed with him. He had conceded that there exists no evidence for framing of charges under the above sections against any one of the accused. The Magistrate had discussed in detail the circumstances on the basis of which he had passed the above said order dated 25-5-1985. The order does not suffer from any serious infirmity.
(3.) THE learned II Additional Sessions Judge, Nainital, has directed the learned Magistrate in revision filed by the inform­ant against the aforesaid order to frame charge. He was of the opinion that this order appears to have been passed by the learned Magistrate under Section 239, Cr. P.C. It will be pertinent to quote Section 239, Cr. P.C. for ready reference: "239. When accused shall be discharged. -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"." This section requires a Judicial Magistrate to consider the police report and the documents sent with it under Sec­tion 173, Cr. P.C. and if after examinations of such material, examination of the ac­cused if the Magistrate thinks it necessary and after affording the prosecution and the accused an opportunity of hearing, he finds the charge against the accused to be groundless, he shall discharge the accused after recording his reasons for the same. ;