SHARMA, J. - (1.) PETITIONER C. B. I. , in the instant revision petition seeks to quash the order dated October 23, 2002 of learned Additional Chief Judicial Magistrate SPE Cases, Rajasthan Jaipur (for short the `acjm') whereby order of taking cognizance dated September 25, 2001 was recalled and the accused respondents were discharged of the offences under sections 120b read with 379, 420, 467, 468 & 471 IPC.
(2.) CONTEXUAL facts depict that learned ACJM took cognizance of the offences under sections 120b read with 379, 420, 467, 468 & 471 IPC against accused respondent Amul Kumar Mehta in his presence on September 25, 2001, by a speaking order. On October 5, 2001 accused respondent Sumant Mehta was sent to judicial custody and the ACJM took cognizance of the aforesaid offences against Sumant Mehta. Therefore the accused respondents moved an application on September 6, 2002 under Sections 3, 5 and 6 of Delhi Special Police Establishment Act, 1946 (for short `delhi Act') praying therein that charge sheet filed by the CBI against accused respondents was without jurisdiction and the order taking cognizance deserves to be recalled and the accused respondents be discharged. Learned ACJM vide order dated October 23, 2000 observed that charge sheet filed by CBI was not maintainable as State of Rajasthan did not accused the consent. Consequently order dated September 25, 2001 was recalled and the accused respondents were discharged. Mr. S. P. Tyagi, learned counsel for the petitioner canvassed that Additional Public Prosecutor placed before the court below a notification bearing No. 25/7/6-AVD dated january 21,1961 showing that Union of India authorised State of Rajasthan under section 5 to investigate the offence incorporated in the Schedule. In part A and B of the said schedule Offences under section 379, 420, 467, 468, 471 and 120 B IPC have been respectively incorporated. The Addl. PP also placed on record a letter dated June 19, 1961, whereby the Home Secretary of State of Rajasthan communicated his consent to the Home Department of Union of India vide letter No. 25/3/60-AVD dated January 12, 1961 and the letter dated July 19, 1988 along with the schedule to show that with the approval of State of Rajasthan the powers and jurisdiction of CBI got extension in this State. But the court below conveniently ignored the relevant material and passed the impugned order. Per contra, Mr. R. S. Rathore and Mr. Ashok Mehta, learned counsel for the accused respondents, supported the impugned order and contended that the court below did not commit any illegality in discharging the respondents in view of provisions contained in Section 239 Cr. P. C. Even otherwise the court below had jurisdiction to recall the order of taking cognizance in view of ratio indicated in K. M. Mathew vs. State of Kerala and Another (1 ). I have pondered over the rival submission and carefully scanned the material on record. Before dealing with the meaningful question involved in the matter, I deem it appropriate to examine the relevant statutory provision and the case law.
(3.) SECTION 239 of the Code of Criminal Procedure provides that 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. In Arun Vyas vs. Anita Vyas (2),their Lordships of Supreme Court indicated that Section 239 has to be read along with Sec. 240 Cr. P. C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Sec. 240 Cr. P. C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. K. M. Mathew vs. State of Kerala and Another (supra) was the case where two Hon'ble Judges of Hon'ble Supreme Court indicated that even after issue of process in summons case accused can plead absence of any triable case against him and Magistrate, on being satisfied on reconsideration of the complaint, has discretionary power to order dropping of the proceedings against the accused instead of proceeding under Chapter XX. ;