Anjana Prakash, J.

1. The petitioners seek quashing of the order dated 16.8.2004 passed by Judicial Magistrate, 1st Class, Darbhanga in T.R. No. 620/200/C.R. No. 967/2000 by which he refused to discharge the petitioners from the liability of criminal prosecution in a complaint instituted by the opposite party no. 2, in which cognizance had been taken for offences punishable under Sections 147, 148, 323, 342, 379 of Indian Penal Code.

2. On 6.1.2006 notices were issued to the opposite party no. 2 and further proceeding in court below was stayed. Thereafter on 14.4.2006 matter was admitted for hearing. The opposite party no. 2 has appeared and the matter is being disposed off in the presence of the parties concerned.

3. The case of the opposite party no. 2 is that he was a rightful owner of Khata Nos. 379 and 380, plot nos. 2147, 2148 and 2149 measuring 10 Kathas of land and he had grown the paddy crops on the same but the accused persons had committed theft of the same and also assaulted him in the transaction when prevented from doing so. After the examination of the complainant on solemn affirmation and three witnesses on his behalf, the court took cognizance in the matter by an order dated 5.1.2001. The petitioners then filed a Criminal Revision before the Sessions Judge, Darbhanga which was heard by Vth Additional Sessions Judge, Darbhanga but he was pleased to dismiss the same by an order dated 23.4.2002 vide Cr. Revision No. 317 of 2001. The petitioners then moved this court vide Cr. Misc. No. 21574/2002 which was heard on 10.9.02 but dismissed with liberty to raise all the points before the court below at the time of framing of charge. The petitioners thereafter- moved the court below for discharging them under Section 245(1) Cr.P.C. which the court below dismissed on grounds stated therein.

4. The learned counsel for the petitioner submits that before the present case was instituted by the opposite party no. 2 a Title Suit had been filed with regard to the same piece of land numbered as Title Suit No. 78 of 97 in which by a final adjudication, the Sub-Judge, Darbhanga on 15.9.2000/23.9.2000 had declared possession of the petitioners on the suit land. In view of such, since, it is not in dispute that the suit land was common as mentioned in the complaint petition filed by the opposite party no. 2. none of the ingredients essential under Section 342/ 379 I.P.C. are present to justify putting the petitioners on trial.

5. However, the opposite party no. 2 states that accepting it for argument sake, even if there had been a final adjudication with regard to the title and right of the parties on the suit land, yet a criminal case would be made out since the decree was only with regard to the seven Kathas of land, whereas the allegation of theft by the petitioners is with regard to 10 Kathas of land. His further submission is that at the stage of framing of charge the documents produced by the accused persons could not be looked into by the court below and therefore the order is completely valid. To advance this proposition he has relied upon a decision reported in (2008)10 Supreme Court Cases 9, where it has been held that at the stage of framing of charge only documents filed on behalf of the prosecution could be gone into. The same view has been reiterated in a case reported in (2010)2 SCC 398.

6. The objection of the counsel for the opposite party no. 2 that, at stage of charge, the Court cannot look into defence documents is no doubt correct, but with a caveat, for the reasons stated hereinafter.

7. Since the courts had been perpetually vexed with the issue as to whether the Trial Court can consider the material filed by the accused, at the stage of framing of charge, the matter was referred to a larger Bench in the case of State of Orissa vs. Debendra Nath Padhi (AIR 2005 SC 359). Examining the scheme of the old Code and the newly introduced Section 227 Cr.P.C. in the 1973 Act, the issue was decided therein in p