A Magistrate cannot consider extraneous materials, such as the statement of an accused who has not been examined by the Magistrate, when deciding whether to discharge the accused under Section 239 of the Cr.P.C.

B. C. Chakrabarti, J. :- This is an application under Sec.482 of the Criminal P.C. for quashing an order dated 10-7-1980 passed by the learned Additional Sessions Judge, Alipore in Criminal Motion No.122 of 1980 revers-ing an order of discharge of the peti-tioners under Sec.239 of the Criminal P.C.

2. An information was lodged by one Dr. Noreen Minos alleging snatching away of gold neckchain from her per-son at about 9.15 p.m. on 4-10-1978 while she was returning home in the first floor of premises No. F 41, Garden Reach Road, Calcutta. On the basis of the said information, case No.231 dated 6-10-1978 was started. The two peti-tioners surrendered in court on 7-10-1978. The learned Magistrate by his order dated 12-5-1980 held that there was no prima facie case against the two accused persons; and accordingly they were discharged under Sec.239 of the Cr.P.C.

3. Being aggrieved, the complainant filed a revisional application which was disposed of by the order impugned in the present application. The learned Ses-sions Judge observed that the learned Magistrate had exceeded his jurisdiction in discharging the accused in so far as he has considered materials which were extraneous and could not be considered at that stage. The learned Additional Sessions Judge felt in view of the state-ment recorded u/s.161 Cr.P.C. that there was no reason to find that the charge was groundless. Accordingly the learned Additional Sessions Judge set aside the order of the learned Magis-trate and directed the learned Sub-divi-sional Judicial Magistrate to send the case to some other Magistrate for proceeding according to law.

4. The accused-petitioners have pre-ferred the present application against the said order. Mr. Banerji, learned Advocate appearing on behalf of the petitioners in the first place submits that the learned Magistrate did not take into consideration any materials which were extraneous and that in any event the prosecution is so highly improbable in view of the vagueness in the report made to the police and the delay in making it that there can be no point in permitting the prosecution to continue.

5. Heard Mr. Banerji for the peti-tioners as also Mr. Dutta who with the leave of the Court has appeared on be-half of the complainant though the com-plainant was not made a opposite party in this Rule. Heard also the learned Advocate for the State.

6. Section 239 provides that if upon consideration of the police report and the documents sent with it under S.173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an oppor-tunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for do-ing so.

7. The order of the learned Magis-trate indicates that in arriving at the conclusion he had not only referred to the statements under S.161 but also of the statements of Kalka Singh father of petitioner No.1 and the two accused persons as well. From the chalan sub-mitted by the police it appears that the prosecution did not really mention the statement of Kalka Singh if any, and it does not form part of the chalan so as to be considered as a document with-in the meaning of S.173 Cr.P.C. This apart, the order sheet of the learned Magistrate also does not indicate that after the appearance of the accused they were at any stage examined by the learned Magistrate. Therefore, the learned Magistrate was not justified in looking into the statement of the ac-cused if any, in the case diary although he might have considered any state-ment made by the accused upon ex-amination by him. Since he had not examined the accused, any statement made by accused were extraneous mate-rials which could not be considered for the purpose of S.239 Cr.P.C.

8. Mr. Banerji, however, argued that even if the learned Magistrate had ex-ceeded his limit in considering the mate-rials which he probably could