Magistrate while discharging accused u/s 239 is not required to consider documents not covered by Section 207 for such discharge.

This revision is directed against the order of the learned Sessions Judge, Ramanathapuram Division at Madurai, in Crl.R.P.No.19 of 1983, which was preferred against the order made by the learned Judicial Second Class Magistrate, Sivaganga, in C.C.No.117 of 1981 on his file.

2. The brief facts which led to the filing of this revision are as follows: On a complaint given by the first respondent in this revision alleging that the revision petitioners committed theft of the standing crops raised in the field bearing S.No.175/4 measuring 22 cents, a case was registered in Crime No.43 of 1981 of Kalayarkoil Police Station. The second respondent forwarded the final report to the Magistrate as contemplated under Sec.173(2) of the Code of Criminal Procedure, hereinafter referred to as the ‘Code’, on completion of investigation. The learned Magistrate, upon considering the police report and the documents sent under Sec.173 of the Code and also some documents filed by the accused-revision petitioners during their examination and after affording the prosecution and the accused an opportunity of being heard, discharged the accused-revision petitioners under Sec.239 of the Code, on the ground that the charge levelled against the revision petitioners was groundless. Challenging the said order of discharge, the first respondent preferred a revision (Crl.R.P.No. 19 of 1983) before the learned Sessions Judge, Ramanathapuram, who set aside the order of discharge holding that there was no scope for the Magistrate to consider the documents filed by the accused revision petitioners at the stage of the examination of the accused under Sec.239 of the Code and directed the Magistrate to frame the charge if he is of opinion on a consideration of the documents and examination of the accused that there is ground for presuming that the accused have admitted an offence and decide the case in accordance with law. Aggrieved against the said order of the learned Sessions Judge, this revision has been preferred by the accused.

3. Mr.A.A.Selvam, learned counsel for the revision petitioners, has strenuously contended that the order of the learned Sessions Judge is based on an error of law and that he has failed to note that under Sec.239 of the Code, the Magistrate has to consider, before resorting to Sec.240 of the Code, the police report and the documents sent with it under Sec.173 of the Code and then make such examination, if any, of the accused as he thinks necessary and hear the prosecution and the accused after affording an opportunity of being heard, and that if the Magistrate, after such consideration of the documents and the examination of the accused and the hearing of the parties, is of opinion that the charge is groundless, he shall discharge the accused for reasons to be recorded. According to him, the examination of the accused and the hearing of the accused would be rendered puerile if such a course does not include the examination and consideration of the documents produced by the accused in support of the oral representation made by him, for a discharge; a fortiorari in a case of this nature wherein a bona fide claim of right over the disputed property is made. In support of his submission, he cited certain decision.

4. Countering this argument, Mr. Karpagavinayagam, stated that the documents produced by the accused before the Magistrate resorting to Sec.240 of the Code ought not to be considered at the stage of the proceedings under Sec.239 of the Code. He states that the real test for determining whether the charge could be considered groundless under Sec.239 is whether the materials produced by the prosecution are such that, even if unrebutted, would not make out any case whatsoever against the accused. Several decisions were cited by both the parties in support of their respective submissions.

5. Sec.239 of the Code corresponds to Sub-sea (2) of Sec.251-A of the old Code, which provision read thus:

“If upon consideration of all the documen