JUDGMENT :

Heard Mr. Shekhar Prasad Sinha, learned counsel for the petitioners, Mrs. Ruby Pandey, learned A.P.P. appearing for the opposite party-State and Mr. Kalyan Banerjee, learned counsel for opposite party no.2.

2. This petition has been filed for quashing the order dated 14.06.2019 passed in Criminal Revision No.47 of 2019, arising out of C.P. Case No.2032 of 2015 passed by the learned Principal District & Sessions Judge, Dhanbad whereby the order dated 05.01.2019 passed by the learned Judicial Magistrate, 1st Class, Dhanbad has been reversed by the revisional court and direction was issued to examine one Arun Kumar Agrawal as witness at charge stage.

3. It is a case between two brothers. The complaint was filed by opposite party no.2, who is elder brother of petitioner no.1 alleging therein that the complainant has purchased 4 Kathas land in Saraidhela Mahato Tola in the year 1977 where he constructed a house but on 13.07.2015 he came to know that petitioner no.1 along with wife is living in his house after taking key of the house from the complainant under the pretext of looking after the house and also to keep the house clean.

4. Mr. Shekhar Prasad Sinha, learned counsel for the petitioners submits that petitioner no.1 is the younger brother of the complainant and there is land dispute between both the parties for which Title Suit No.98 of 2015 is pending in the court of the learned Civil Judge (Senior Division) 1st Dhanbad. He further submits that a petition was filed on 23.04.2018 by the complainant in C.P. Case No. 2032 of 2015 for grant of permission to examine Arun Kumar Agarwal, whose name was not disclosed in the list of witnesses mentioned by the complainant in the complaint petition. He also submits that in the complaint petition, the complainant has cited 4 witnesses, namely, Ajay Kumar Oraon, Tapas Bern, Rakesh Kumar and Abha. He further submits that before charge under Section 244 Cr.P.C., the complainant has examined only 2 witnesses cited by him in the complaint petition namely Abha and Tapas Bern. He also submits that from the evidence of the complainant and Tapas Bern, the name of Arun Kumar Agarwal has not been disclosed. He further submits that earlier the trial court by the reasoned order dated 05.01.2019 has rejected a petition for examining Arun Kumar Agarwal. He further submits that only to fill up the lacuna and to delay the trial, that petition was filed by the complainant. He further submits that the revisional court while reversing the order of the trial court, has not considered the judgment rendered by the Hon'ble Supreme Court in the case of Sayeed Farhana Shamim v. State of Bihar , reported in (2008) 8 SCC 218 in its right perspective. He further submits that there is no doubt that the learned Magistrate is having discretion, but it requires to be applied in the facts and circumstances of each case. Only to fill up the lacuna, that discretion is not permissible. He also submits that the learned trial court has rightly rejected the petition, whereas, the revisional court has reversed the order of the trial court and allowed the criminal revision petition. He relied upon paragraph 11 of the judgment rendered by the Hon'ble Supreme Court in the case of Sayeed Farhana Shamim (supra) . He further relied upon paragraph 7 of the judgment rendered by the Bombay High Court, Nagpur Bench, Nagpur in the case of Dr. Kishor & another v.Appropriate Authority under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) & another, in Criminal Application (APL) No.19 of 2014 , dated 13.01.2015.

5. Paragraph 7 of the said judgment is quoted herein below:

"7. If one peruse application vide Exh.38, one would notice that no reasons whatsoever have been stated in the application as to why, even though a pursis had been filed vide Exh.33 for closure of evidence and even though thereafter arguments had been heard by the Court for either proceeding under Section 245 or Section 246 of the