The main legal point established in the judgment is that the order framing the charges should not be a mechanical order, and the magistrate must consider the materials on record before making a finding, as per the spirit of Section 239 of the Code of Criminal Procedure.

1. Heard both the parties.

2. The petitioner has approached this Court seeking quashing of order dated 17.1.2007 passed by the learned Sub-Di-visional Judicial Magistrate (West), Muzaffarpur in Saraiya P.S. Case No. 275/ 2005 (Tr. No. 1563/2006) whereby and whereunder the learned Magistrate rejected the petition filed by the petitioner under Section 239 of Code of Criminal Procedure (hereinafter referred to as the Code) for discharge.

3. Background facts in so far as they are relevant for the disposal of the case. An F.I.R. was lodged on 5.10.2005 under Sections 379 and 411 of the I.P.C. against unknown by the Project Manager of Shyama Power. On the basis of the said first information report, the police took up investigation and in course whereof, certain seizures were made and statements of co-accused were recorded. Upon conclusion of the investigation, the police submitted charge-sheet against the petitioner also and on that basis cognizance was earlier taken against him.

4. The submission of the petitioner is that there is absolutely no legal material available against him to connect him with the offence as his name surfaced only on the basis of the statement of one of the co-accuseds.

5. Accordingly, an application was filed by him for discharge which was rejected under the impugned order.

6. I have perused the order which has been passed by the learned Magistrate which says that since cognizance has already been taken in the matter, therefore, the application for discharge stands rejected.

7. Learned counsel submits that the order is not in consonance with the letter and spirit of the provisions as contemplated under Sec. 239 of the Code. In this connection, he refers to and relies upon a decision rendered by Hon ble Supreme Court in the case of: Century Spinning and Manufacturing Company Ltd. vs. State of Maharashtra 1972 S.C. 545. The said case dealt with Section 251/A(ii) of the Criminal Procedure Code as it existed prior to amendment. He submits that the provisions as contained in 239 is pari materia with that section. Learned counsel by referring to the conclusion/finding arrived at by Hon ble Supreme Court in para 16 submits that the order framing the charges does substantially affect the persons liberty and as such it should not be a mechanical order. The learned Magistrate has to consider the materials on record and thereafter, record a finding whether the materials available on record are groundless or not. This view of the Hon ble Supreme Court has been taken note of in State of Karnataka vs. L. Muniswamy 1977 Cr.L.J. 1125.

8. Considering that parameters in view, I examined the order impugned dated 17.1.2007 and I am satisfied that the order is not in consonance with the spirit of the Section and thus requires interference.

9. Regard being had to these facts, this application is allowed and the order impugned dated 17.1.2007 passed by learned Sub-Divisional Judicial Magistrate (West), Muzaffarpur, is quashed and the matter is remitted back to the learned Magistrate to pass a fresh order in accordance with law after hearing both the parties.

10. With this observation, this application is allowed.