Birendra Prasad Gupta vs State of Bihar and Another

Chy. S.N. Mishra, J.—In this case, the petitioner has prayed for quashing the order dated 5-l2-1995 passed by the learned Magistrate whereby prayer of the petitioner for discharge in terms of Section 239 of the Code of Criminal Procedure has been rejected. It appears that on the basis of the first information report, a case was instituted being Danapur P.S. Case No. 237 of 1993 and after usual investigation, the Police submitted a final form stating the case to be untrue. The complainant-opposite party filed a petition by way of protest and on the basis thereof, cognizance was taken of an offence punishable under Sections 420, 463, 464 and 468 and other Sections of the Indian Penal Code against the petitioner. The petitioner, thereafter, filed a petition in terms of Section 239 of the Code of Criminal Procedure for discharge which has been rejected by the impugned order, hence, this application.

Mr. Dwivedi appearing on behalf of the petitioner has challenged the order solely on the ground that the learned Magistrate without applying his mind to the materials available on record, has rejected the prayer of the petitioner. Further, it is submitted that on the facts alleged, no offence is made out against the petitioner. From the bare perusal of the order, it appears that except stating the there is sufficient material to frame a charge against the petitioner, no prima fade evidence has been discussed and/or even referred in the order while rejecting the prayer of discharge. In that view of the matter, without going into the merits of the case at this stage, the order dated 5-12-1995 is quashed and the matter is remitted back to the learned Magistrate who will pass a fresh order with reference to the materials available on record and in accordance with law after hearing the parties. This application is, accordingly, allowed to the extent indicated above.