B.C. Chakrabarti, J.
1. This is an application under Section 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 reversing an order of discharge of the petitioners under Section 239- of the Criminal P.C.
2. An information was lodged by one Dr. Noreen Minos alleging snatching away of gold neckchain from her person 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 ?-10-1978 was started. The two petitioners 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 Section 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 Sessions 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 statement recorded Under Section 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 Magistrate and directed the learned Sub-divisional Judicial Magistrate to send the case to some other Magistrate for proceeding according to law.
4. The accused-petitioners have preferred 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 petitioners as also Mr. Dutta who with the leave of the Court has appeared on behalf of the complainant though the complainant 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 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 doing so.
7. The order of the learned Magistrate indicates that in arriving at the conclusion he had not only referred to the statements under Section 161 but also of the statements of Kalka Singh father of petitioner No. 1 and the two accused persons as well. From the chalan submitted 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 within the meaning of Section 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 accused if any, in the case diary although he might have considered any statement made by the accused upon examination by him. Since he had not examined the accused, any statement made by accused were extraneous materials which could not be considered for the purpose of Section 239 Cr. P.C.
8. Mr. Banerji however, argued that even if the learned Magistrate had exceeded his limit in considering the materials which he probably could not at that stage yet the materials in the case are such that no prosecution should be permitted to continue. He contended that the incident occurred according to the prosecution on the night of 4-10-1978 at about 915 p. m but the F.I.R. was lodged on 6-10-1978 at about 8 hours. In the F.I.R. the petitioner No. 1 who is described as son of Kalka 'Singh is said to have snatched away a neck chain from the person of the complainant and the petitioner No. 2 Tri-sbhuwan Singh is said to have aided and abetted the petitioner No. 1 in the commission of the offence. According to the prosecution the incident occurred at a time when there was power failure and while the complainant was returning to her flat in the first floor of the premises, petitioner No. 1 is the son of one Kalka Singh who is a co-tenant -of the same premises. Petitioner No. 2 also is a resident of the same address. It is true that in the letter written by the complainant the name of petitioner No. 1 is not there but it is nevertheless stated that it was the son of Kalka Singh who pulled the golden chain from her neck and fled away being followed by his associate Tribhuwan Singh. In the statement of several witnesses examined by the police under Section 161 Cr. P.C. it appears that the complainant ran after the two miscreants with a torchlight in her hand, shouted after them and that on their enquiry she gave out that Kalka's son Sadhu being accompanied by Tribhuwan snatched away the golden chain. The witnesses of course stated that they could not identify the miscreants themselves but their evidence and statement clearly show that the complainant made disclosure of the name of the petitioners to them at about the time of the occurrence. It is true that in the letter written by her the name of the son of Kalka is not there but other particulars relevant for identification are there namely, that he was the son of Kalka 'Singh. Such being the position, we are unable to agree with the contention of Mr. Banerji that the case is so improbable that the charge against the two petitioners cannot be sustained. In support of the contention Mr. Banerji relied on certain observations in the case of State of Karnataka v- Munni Swamy reported in : 1977CriLJ1125 There it has been observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. In this decision reliance was also placed in the case of C. S. Manufacturing Co. v. State of Maharashtra reported in : 1972CriLJ329 . In this case it was held that it cannot be said that the court at the stage of framing charges is not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused
9. Upon a consideration of the decisions referred to and relied on by Mr. Banerji it seems that the real test for determining whether the charge should be considered groundless under Section 239 Cr. P.C. is that where the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 Cr. P.C. In the instant case it is difficult to say at this stage that the materials if unrebutted did not make out any case at all whether eventually they would succeed or not is, however, a different consideration.
10. Such being our view of the matter we do not propose to interfere with the order impugned in the present application. Accordingly the application fails and is dismissed The Rule is discharged.
11. Let the records be sent down to the court below forthwith.
Jitendra Nath Chaudhuri, J.
12. I agree.