Amitav K. Gupta, J. - (1.) The instant application has been filed against the order dated 29.10.2010 passed by learned Judicial Magistrate, Ist Class, Ranchi in G.R. No. 4999/2008 (Doranda P.S. Case No. 423/2008) whereby the application filed by the petitioner under Section 239 read with Section 258 Cr.P.C. has been rejected.
(2.) Learned counsel for the petitioner has submitted that the petitioner has been charge-sheeted for the offence under Section 160 I.P.C. for committing affray and affray has been defined under Section 159 I.P.C.; it is contended that the ingredients for constituting the offence of affray is not made out ; that the perusal of the FIR and evidence collected in the police papers would reveal that two students had come to purchase stationery articles from the shop of one Yadubir Jha and the students insisted to give them the books and copies on credit but the shop-keeper refused and asked them to clear the previous dues upon which the two students started shouting and the petitioner as a neighbour came and tried to pacify the matter and reason out with the students but they became aggressive and created public nuisance and the petitioner to intimidate them had flashed out his pistol. That the occurrence did not take place in a public place rather it was within the premises of the shop. Thus, in the given facts the ingredients for attracting the offence under Section 160 I.P.C is not made out against the petitioner as for disturbance of peace there has to be a fight between two or more persons but there is no material to show that the petitioner had indulged in fighting with any person causing disturbance of public peace. That the petitioner had a valid licence for the pistol and the trial court without appreciating the material facts has illegally rejected the application for discharge.
(3.) On the other hand learned A.P.P. Has contended that the order requires no interference and the trial court has rightly rejected the application on the ground that there is no provision for discharge under Section 239 Cr.P.C. in a summons case triable under Section 258 Cr.P.C.;