ORDER
S.K. Agarwal, J.
1. Heard learned counsel for the parties and the learned A.G.A. and have gone through the record of the case as well.
2. A perusal of the judgment of the learned Magistrate shows that he had recorded reasons in not accepting the charge sheet and not proceeding against the applicants. A careful examination of his order shows that the learned Magistrate had closely scrutinised the evidence. It appears that the accused persons had examined a sale deed in favour of the informant of their share in the ancestral property lying in Punjab. Their share in the entire property lying in Punjab as well as in Uttar Pradesh was 1/3rd. The accused persons are father and sons. The informant is brother of accused Preetam Singh. The prosecution or the complainant has not filed any reply to the affidavit of Preetam Singh. This affidavit discloses that accused Preetam Singh has executed a sale deed in favour of the informant, Dharam Singh, of a part of his share in the entire property, the land lying in Punjab. It can safely be inferred from this averment and it’s non-rebuttal that vice versa Dharam Singh will also be required to execute another sale deed in favour of Preetam Singh and his sons from his share of the property lying in U. P. equivalent to the one Preetam transferred. This is in the nutshell the intention of the learned Magistrate in discussing this part of evidence. He has examined the rest of the evidence in the light of the above observations.
3. He had come to a conclusion that there exists prima facie no evidence for framing any charge under Sections 419/420/467/ 468/114, I.P.C. According to his order, even the prosecuting officer has also agreed with him. He had conceded that there exists no evidence for framing of charges under the above sections against any one of the accused. The Magistrate had discussed in detail the circumstances on the basis of which he had passed the above said order dated 25-5-1985. The order does not suffer from any serious infirmity.
4. The learned II Additional Sessions Judge, Nainital, has directed the learned Magistrate in revision filed by the informant against the aforesaid order to frame charge. He was of the opinion that this order appears to have been passed by the learned Magistrate under Section 239, Cr.P.C. It will be pertinent to quote Section 239. Cr. P. C. for ready reference :
239. When accused shall be discharged.– If, upon considering the police report and the documents sent with it under Section 173 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.
This Section requires a Judicial Magistrate to consider the police report and the documents sent with it under Section 173, Cr. P. C. and if after examination of such material, examination of the accused if the Magistrate thinks it necessary and after affording the prosecution and the accused an opportunity of hearing, he finds the charge against the accused to be groundless, he shall discharge the accused after recording his reasons for the same.
5. Three things are required for the Magistrate if he is acting under Section 239, Cr. P. C, Firstly, he has to consider the police report and the documents sent with it under Section 173, Cr. P. C. Secondly, examination of the accused, that too if he thinks necessary. Thirdly, he has to afford an opportunity to the prosecution and the accused of hearing before passing any order of discharge in favour of the accused. In my opinion, the learned Magistrate has complied with the provisions of the section fully.
6. The affidavit of Preetam Singh states that he had executed a sale deed in favour of Dharam Singh for his share in the ancestral property. The property that was transferred by him lies in Punjab in lieu thereof. The natural consequence that flows from it is that Dharam Singh was under an obligation in return to execute similar sale deed in favour of Paramjeet Singh with regard to his share in the property i.e. by transferring his portion in the immovable properties lying in the State of U. P. Thus, the formality of examination of the accused appears to have been complied with. The judgment of the Judicial Magistrate further shows clearly that opportunity of hearing has been afforded to both the parties and from his judgment it appears clearly that even the Prosecuting Officer, during the course of arguments, had conceded that no charge can be framed on the basis of the evidence collected during investigation under Sections 419/420/467/468/114.I.P.C. The learned Magistrate thereafter has dealt in detail the lacunae appearing in the materials collected during the course of investigation. The learned Sessions Judge has misconstrued the scope of Section 239, Cr. P. C.
7. Section 239, Cr. P. C. is very clear so far as the exercise of power of discharge by a Judicial Magistrate is concerned. The language is “the Magistrate considers the charge against the accused to be groundless.” The findings returned by the learned Magistrate clearly show that it was not possible for him to frame the charges against the accused persons. There does not exist, in my opinion, much fetters in the exercise of powers under Section 239, Cr. P. C. The learned Sessions Judge observes in his order that “In order to hold a charge groundless I think either there should have been no iota of evidence produced or should have contra-indicated the offence or any other fundamental error to assume cognisance in the case should have been established.” Section 239, Cr. P. C. does not indicate any such conditions. The only condition the section indicates is that “if he considers the charge against the accused to be groundless.” The term “groundless” refers to absence of sufficient material necessary for framing charge. It does not refer to complete or total lack of evidence. In that event no charge-sheet will be filed in Court by police.
8. This is what the learned Magistrate in his order has very clearly indicated. A serious dent in the veracity of the allegation made in F.I.R. caused by the undisputed fact that Paramjeet Singh had executed a sale deed in favour of Dharam Singh, the informant, of the ancestral property lying in Punjab. It has also come in the evidence that Dharam Singh never lived in Uttar Pradesh. He had all along living in Punjab. The witnesses Nathu Singh and Jumma gave out that Dharam Singh lived in Punjab. They do not know him from before. They had identified Dharam Singh at the instance of brother of the informant. They do not say that Dharam Singh, whom they had identified, was a different person than one, who was present in Court. Apart from it the Prosecuting Officer also made a clear concession to the effect that from the material collected in the investigation no charges under Sections 419/420/467/468/114, I.P.C. can be framed against the accused persons. Thus the Magistrate had not been left with any option but to discharge the accused persons.
There is no allegation in the grounds of revision against the Prosecuting Officer that he had colluded with the accused persons in making this concession. Moreover the prosecution has not been able to decipher the person, in this case, who stood as Dharam Singh in the execution of those sale deeds. Even Handwriting Expert’s opinion is also vague and does not categorically say that the thumb impressions found on the sale deeds are not of Dharam Singh. He has only opined that the disputed thumb marks Nos. 32, 57, 32, 60, 32-61 are dissimilar with admitted thumb marks No. 32-76. The opinion of the Handwriting Expert was that the formation is different, but he had not given any definite opinion with regard to the thumb impressions on the sale deed, whether they are of Dharam Singh or not. Different formations can occur on various grounds. The learned Magistrate has discussed them quite efficiently. Thus, the opinion of the learned Addl. Sessions Judge that without aifording an opportunity of evidence to the parties these findings cannot be returned does not appear to me to be sound. Section 239, Cr. P. C, as already been stated by me earlier, does not lay any fetter in exercise of this power by the Magistrate, if he finds the charge to be groundless from the material produced before the Court by the Investigating Agency. He has discussed the evidence in detail and has given cogent reasons for not accepting the charge-sheet.
9. In my opinion, after nearly 13 years, specially when the dispute is between the real brothers and the claim of one brother, viz. Paramjeet Singh that he had transferred his property in Punjab by way of sale deed in favour of his brother Dharam Singh, the informant remain unrebutted, it will not be fair and proper to remand the case back to the learned Magistrate for framing the charges and to proceed in the matter any further.
10. In view of discussions, the revision is allowed and the order of the learned II Additional Sessions Judge, Nainital, dated 19-2-1986 is hereby quashed.