RAJA BABU Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties. The present petition questions the propriety of order passed on 21.7.2010 on an application filed by the petitioners before the S.D.J.M., Vaishali at Hajipur in G.R. No. 3177 of 2003 for stopping the proceeding and discharging the petitioners under section 258 of the Cr. P.C.

(2.) It appears that the petition was wrongly mentioned to be one under section 239 of the Cr.P.C. The learned S.D.J.M., after hearing the parties, went on to hold that said provision of section 239 of the Cr.P.C. was not applicable to the trial of summons cases by a magistrate under Chapter XX of the Cr.P.C. The plea which has been set up by the petitioners before this Court and, which appears submitted before the court below also, was that the quantity of food grains taken together, was not such which could attract the provisions of Essential Commodities Act so as to legitimize the prosecutions of the petitioner in G.R. 3177 of 2003.

(3.) It is true that section 239 of the Cr.P.C. does not form part of Chapter XX of the Code, it is in Chapter IXX, which relates to trial of warrant cases initiated on police report. But, the court below must have been aware of the provision of section 251 of the Cr.P.C. which indicates that when an accused appears or is brought before the magistrate, the particulars of the offence of which he is accused, shall be stated to him and he shall be asked whether he is guilty or has any defence to make. In any event, it was not necessary that the charges should be framed. As soon as the law requires that the particular of accusation have to be explained to the accused, then it pre-supposes that the same could be done only when there is viable relevant material before the court to assume that there could be some accusation legally to be brought against the accused so that he could be asked to explain by pleading guilty or by pleading not guilty to offer a defence. When law requires giving 'particulars' of any particular offence, it means that the court has to find out those details constituting an offence so that the same could be clearly brought into the notice of an accused who could prepare his defence. If the facts of a case or the materials connected with the allegations do not make out any offence, then there could not be any exercise to be undertaken under section 251 of the Cr.P.C. This may also be pointed out that branding a petition wrongly by inserting a wrong provision may not be making it otiose or meaningless. The substance of pleas has to be considered and the same has to be adjudicated upon.