JUDGMENT (1) PETITIONER herein, who has been arrayed as first accused in CC No.627 of 2008, on the file of Addl. Civil Judge (Sr. Dn.) and CJM, Tumkur, for the offences punishable under Sections 417 and 420 read with Section 34, IPC, was ordered to be discharged from the accusation by order dated 8-2-2010 passed by the learned Magistrate, inter alia, on the ground that the materials produced by the investigating officer along with the final report under Section 173, Cr.P.C, prima facie, do not make out any case against the accused persons and therefore charges against the accused are groundless, as such the accused persons are entitled to be discharged. However, even before passing of the said order, the second accused died and therefore the case against the said accused abated. By the impugned order, the learned Magistrate discharged the first accused-petitioner. (2) AGGRIEVED by the said order of discharge passed by the learned Magistrate, the State filed revision petition under Section 397, Cr.P.C. in Criminal Revision Petition No. 51 of 2010, on the file of Fast Track (Sessions) Judge, Tumkur. The learned Sessions Judge by order dated 23-9-2010, allowed the revision petition, set aside the order passed by the learned Magistrate and directed the learned Magistrate to hold trial by examining prosecution witnesses and to dispose of the case on merits. Aggrieved by the said order passed by the learned Sessions Judge, the petitioner has presented this petition seeking to set aside the said order. (3) I have heard the learned counsel for the petitioner as well as the learned Addl. SPP, appearing for the State and perused the orders passed by the Courts below. (4) ON the basis of the report submitted by one Sridhar, the New Extension Police, Tumkur, registered a case and took up investigation for the offences punishable under Sections 417 and 420 r/w 34, IPC. SPP, appearing for the State and perused the orders passed by the Courts below. (4) ON the basis of the report submitted by one Sridhar, the New Extension Police, Tumkur, registered a case and took up investigation for the offences punishable under Sections 417 and 420 r/w 34, IPC. The allegation made in the complaint was that the two accused persons being president and the secretary of State Government Houseless Harijan Employees Association, sought acquisition of certain lands for formation of sites for the purpose of distributing the same to its members, but the said acquisition proceedings were entangled in legal battle and the association lost the legal battle before the High Court and since there was dearth of fund for the association to take up the matter before the Apex Court, the president and the secretary of the association requested the complainant to render financial help arid accordingly the complainant paid a sum of Rs.60,000/- to the accused persons on the assurance that he would be allotted a site in the layout so formed by the association. It is further alleged in the complaint that though the association succeeded before the Supreme Court, the accused persons did' not allot site to the complainant and thereby the accused have cheated the complainant. The police, after completing the investigation, filed charge-sheet for the offences punishable under Sections 417 and 420 read with Section 34, IPC. (5) UPON service of summons, the petitioner herein appeared before the learned Magistrate and sought for discharge under Section 239, Cr.P.C. The learned Magistrate, after hearing the prosecution as well as the accused as contemplated under Section 239, Cr.P.C., and on consideration of the police report as well as documents sent with it under Section 173 Cr.P.C, was of the opinion that the charge against the accused is groundless and therefore the accused persons are entitled for an order of discharge. In that view of the matter, the learned Magistrate by a considered order, directed discharge of the petitioner-first accused of the charges levelled against him. (6) IN the revision petition, the learned Sessions Judge was of the opinion that when the police have filed a charge-sheet under Section 173, Cr.P.C., the learned Magistrate is under obligation to record evidence of the prosecution witnesses and dispose of the case on merits and that the learned Magistrate could not discharge the accused before recording evidence. (6) IN the revision petition, the learned Sessions Judge was of the opinion that when the police have filed a charge-sheet under Section 173, Cr.P.C., the learned Magistrate is under obligation to record evidence of the prosecution witnesses and dispose of the case on merits and that the learned Magistrate could not discharge the accused before recording evidence. From a reading of the order passed by the learned Sessions Judge, it is seen that the learned Sessions Judge was of the view that the learned Magistrate has no jurisdiction to discharge the accused even if the learned Magistrate found no substance in the police report and the documents produced along with the charge-sheet. (7) SECTION 239, Cr.P.C. reads as under: 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. (8) FROM the above, it is amply clear that before proceeding to frame charge, the Magistrate is under an obligation to hear the prosecution and also the accused and to find out as to whether the charge against the accused is groundless and if he finds the charge as groundless, he is empowered to discharge the accused. Of course, for doing so, he has to record his reasonings. It is only when the learned Magistrate finds that the charge against the accused as tenable and is of the opinion that there are sufficient materials to proceed with the case against the accused, he is required to proceed to frame charge and record the evidence of the prosecution witnesses. It is only when the learned Magistrate finds that the charge against the accused as tenable and is of the opinion that there are sufficient materials to proceed with the case against the accused, he is required to proceed to frame charge and record the evidence of the prosecution witnesses. In the light of the language of Section 239, Cr.P.C, the observation of the learned Sessions Judge that the learned Magistrate cannot order for discharge of the accused before concluding the trial of the case by recording evidence of prosecution, is contrary to the provisions of Section 239, Cr.P.C. Obviously, the learned Sessions Judge has failed to consider the purport of Section 239, Cr.P.C. (9) IN this view of the matter, I am of the considered opinion that the reasons assigned by the learned Sessions Judge to set aside the order of the learned Magistrate are contrary to law and therefore the order cannot be sustained, as such, it is liable to be set aside. (10) HOWEVER, in my opinion, the matter requires to be remitted to the learned Sessions Judge for consideration of the revision petition afresh and pass appropriate orders in accordance with law. In the result, this petition is allowed. Impugned order dated 23-9-2010 is set aside and the matter is remanded to the Sessions Court with a direction to restore the revision petition on its file in its original number and dispose of the said revision petition afresh after hearing both the State and the accused. Registry is directed to communicate this order to the learned Sessions Judge forthwith. Petition allowed.