P. K. Sarin, J.

This Criminal Revision Application is directed against the order dated 2-2-1991 passed by Judicial Magistrate, 1st Class Darbhanga in T. R. No 84 of 1991/G. R. No. 867 of 1984 by which the learned Magistrate has rejected the application of the petitioners under Section 239 of the Code of Criminal Procedure (hereinafter referred to as the Code) for discharge.

2. It appears that Opposite Party No.2, the informant, lodged a written report on 3rd April, 1989 at Sakatpur Police Station. Abstract of the First Information Report has been filed as Annexure-1 to the application. It has been stated in the said report that the informant is in possession of Plot No. 425 at village Tardih and he had raised Arhar crops on the same. It has been alleged that the petitioner variously armed came at the said plot where the employee of the informant Baidyanath Mandal was getting the harvested Arhar tied into bundles. It is alleged that the petitioner No. 1 Hare Ram Choudhary asked Baidyanath Mandal not to tie harvested Arhar crop into bundles and when Baidyanath Mandal did not pay heed to it Hare Ram Choudhary fired from pistol but Baidyanath Mandal escaped and ran away up to some distance. It is further alleged that the petitioner took away about 40 bundles of Arhar worth Rs. 500/-.

3. Police, after investigation, submitted charge sheet against the petitioners. The petitioners moved an application under section 239 of the Code for discharge on the ground that Plot No. 445 had been purchased by the petitioners from Uttim Sundari Thakurain in October, 1983 and since then they are continuing in possession thereof. The learned Magistrate, after considering the evidence collected during investigation, found that there was no ground to discharge the petitioners and accordingly he rejected the application of the petitioners.

4. It has been contended by learned Counsel for the petitioners that the informant is claiming possession on the basis of an agreement said to be executed by Uttim Sundari Thakurain while petitioners are claiming possession on the basis of sale-deed executed by Uttim Sundari Thakurairr who had, during investigation, denied the execution of any agreement in favour of the informant and has supported the defence case that she had executed the Sale-deed in favour of the petitioners. It has been contended that utmost the case is of land dispute and the matter is of civil nature for which proper remedy would be civil case and not the criminal case. It is further contended that the informant had filed civil suit also in which he prayed for injunction but the same was refused.

5. Learned Counsel for Opposite Party No.2 has contended that the question is regarding possession and raising of crop which the informant bas asserted to have raised and the defence version may be considered at the appropriate stage at the trial. It is contended that at the stage of framing of charge only prima facie case has to be seen on the basis of material collected during investigation.

6. Section 239 of the Code lays down that if unpin considering the police report and the documents sent with it under Section 137 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.

Section 240 of the code lays down that if upon such consideration, examination if any, and hearing the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence tribal under this Chapter (XIX) which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

7. Thus the provision is clear that at the time of consideration of the case under Sections 239 and 240 of the Code the Magistrate has only