JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure assailing the Order dated 07.01.2011 passed by the learned Additional Chief Judicial Magistrate, Bidhan Nagar (N) in G.R. Case No. 352/2008 whereby and whereunder the learned Magistrate discharged the accused persons under Section 239, Cr.P.C. 2. A complaint was lodged by Dr. (Mrs.) Minati Banik on 18.06.2008 alleging that on 10th July, 2007 her husband Dr. J.R. Banik was assaulted by Satyaki Roy, Sanjib Ghosh, Sudip Paul and Dr. Partha Bhattacharya at 6.30 -7.00 p.m. at Medical Centre. Dr. J.R. Banik was confined in his room. When he tried to go out of the room by walking down the corridor, those persons chased Dr. Banik with filthy language and pushed him from behind. As a result he became stunned for a few seconds and sat on the floor. Dr. J.R. Banik then informed the police over phone. In the meantime three more people, namely, Dr. Rupasree Bhattacharjee, Mr. Ramen Guha and Dr. Gour Gopal Chatterjee came to support the accused persons. One A.S.I. and a Constable came there. The informant and all the employees of the hospital and the informants sister were all present there. 3. DR. J.R. Banik was not injured but complained of some pain on the right side of his head. The Brain Scan was done. It was found that there was subdural collection of blood pressing on the brain. DR. J.R. Banik was admitted in the Nursing Home immediately. He was operated on the brain. Upon receipt of this complaint the Bidhan Nagar (N) Police Station Case No. 104 dated 23.06.2008 was started under Section 341/325/34, Indian Penal Code. 4. AFTER completion of investigation, the charge-sheet was submitted under Section 341/325/34, Indian Penal Code against the accused persons. The learned Magistrate by Order dated 07.01.2011 allowed the petition filed by the accused persons praying for discharge under Section 239, Cr.P.C. 5. BEING aggrieved by the said order passed by the learned Magistrate the petitioner herein filed the instant application. 6. THE learned Magistrate upon consideration of the police report and the documents sent with it under Section 173 observed that the incident took place on 10.07.07, but the complaint was lodged on 18.06.08, that is, after a span of one year and there was no satisfactory explanation for such delay. 6. THE learned Magistrate upon consideration of the police report and the documents sent with it under Section 173 observed that the incident took place on 10.07.07, but the complaint was lodged on 18.06.08, that is, after a span of one year and there was no satisfactory explanation for such delay. The learned Magistrate held that about the treatment of the victim it was not clear from the documents collected by the I.O. from Rabindranath Tagore International Institute of Cardiac Sciences that the victim was treated there for the alleged injury sustained by him on 10.07.07. It was also held that the treatment sheets were not seized during the investigation of this case and the relevant column of the Charge Sheet shows that nothing was seized by the I.O. The learned Magistrate held that a cloudy atmosphere was created by the I.O. and it was not at all clear as to relying upon which documents the I.O. reached the conclusion that the injuries sustained by the victim were "grievous" in nature. 7. CONSIDERING the circumstances aforesaid, the learned Magistrate discharged the accused persons under Section 239 Cr.P.C. 8. THE learned Counsel appearing for the petitioner submits that the de facto complainant filed an application under Section 173(8), Cr.P.C. for further investigation which was rejected by the learned Magistrate on 25.06.2010. The learned Counsel submits that from the statements of the witnesses recorded under Section 161, Cr.P.C. it would be clear that Dr. J.R. Banik was lying there and operation had to be done for the removal of the clotted blood. It is contended that the complainant wrote letters to the Additional S.P., S.P. and the case was started after one year. The learned Counsel has referred to the impugned order passed by the learned Magistrate and the statements recorded under Section 161 Cr.P.C. 9. THE learned Counsel submits that the learned Magistrate was not justified in discharging the accused persons under Section 239 Cr.P.C. It is contended that the learned Magistrate totally misinterpreted the materials on record and proceeded against the law in discharging the accused persons under Section 239 Cr.P.C. 10. THE learned Counsel for the petitioner has referred to and cited the decisions reported in (2000)8 Supreme Court Cases 382 [State of W.B. Vs. Mir Mohammad Omar and Ors.], (2004)4 Supreme Court Cases 158 [Zahira Habibulla H. Sheikh and Anr. Vs. THE learned Counsel for the petitioner has referred to and cited the decisions reported in (2000)8 Supreme Court Cases 382 [State of W.B. Vs. Mir Mohammad Omar and Ors.], (2004)4 Supreme Court Cases 158 [Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujarat and Ors.],(2010)9 Supreme Court Cases 368 [Sajjan Kumar Vs. Central Bureau of Investigation], (2008)14 Supreme Court Cases 13 [State Anti-Corruption Bureau, Hyderabad and Anr. Vs. P. Suryaprakasam.], (2008)10 Supreme Court Cases 681 [Sanghi Brothers (Indore)Private Limited. Vs. Sanjay Choudhary and Ors.], (2010)2 Supreme Court Cases 398 [P. Vijayan Vs. State of Kerala and Anr.], The learned Counsel appearing for the Opposite Parties No. 2,3,5,6 and 7 submits that in the instant application the petitioner has challenged the particular order dated 07.01.2011. It is contended that the scope of consideration in the instant application is very limited. It is submitted that the alleged incident took place on 10.07.2007 and the complaint was lodged on 18.06.2008 and the case was registered on 23.06.2008. 11. IT is submitted that the complaint is dated 18.06.2008, but in the relevant column of the F.I.R. it was noted that the information was received by the P.S. on 23.06.2008. 12. IT is submitted that no document was submitted by the informant for the alleged treatment of the victim. IT is contended that in column No.8 of the charge sheet it was noted that no reason was given for the delay in lodging the F.I.R. The learned Counsel contends that the case does not come within the purview of the grievous hurt. The learned Counsel for the OPs submits that the accused person filed a case against Dr. J.R. Banik and it has been admitted in Paragraph 6 of the instant application. It has been stated in paragraph 6 that the case was filed by Dr. Partha Bhattacharya on 23.07.07 against Dr. J.R. Banik who was ultimately released by the order of the Honourable Supreme Court of India on bail. It is contended that to counteract the case filed by the Opposite Party No. 2 herein, the instant case was lodged afterwards. 13. IT is contended by the learned Counsel that on 11th July, 2007 both Dr. J.R. Banik and Dr. (Mrs.) Minati Banik sent a letter to the Officer-in-Charge, Bidhan Nagar Police Station (N) alleging that on 10th July Dr. Partha Bhattacharya and others abused Dr. 13. IT is contended by the learned Counsel that on 11th July, 2007 both Dr. J.R. Banik and Dr. (Mrs.) Minati Banik sent a letter to the Officer-in-Charge, Bidhan Nagar Police Station (N) alleging that on 10th July Dr. Partha Bhattacharya and others abused Dr. J.R. Banik in a very filthy language and pushed him from behind in presence of the employees of the Centre and sought for police protection to prevent any such event at the Medical Centre. IT is contended that in the complaint dated 18.06.2008 there was no whisper about the previous letter dated 11.07.2007. 14. THE learned Counsel submits that the question of further investigation is a different aspect which cannot be considered in the instant application, in as much as, the instant application relates to the order of the discharge of the accused under Section 239 of the Cr.P.C. The learned Counsel submits that the learned Magistrate discharged the accused persons on the ground that there was no prima facie case for the framing of charge. It is submitted that the impugned order passed by the learned Magistrate does not call for any interference. 15. THE learned Counsel appearing on behalf of the Opposite Party No. 4 submits that the documents annexed with the instant application cannot be considered, in as much as, those were not produced before the I.O. at the time of the investigation of the case. 16. THE following decisions have been referred to and cited on behalf of the OPs as reported in (2005) Supreme Court Cases (Cri) 276 [Satyajit Banerjee and Ors. Vs. State of West Bengal and Ors.], 2005 Supreme Court Cases (Cri) 283 [Zandu Pharmaceutical Works Ltd. and Ors. Vs. Mohd. Sharaful Haque and Anr.], (2008) 10 Supreme Court Cases 394 [Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra], 1972 CRI.L.J. 329 (V 78 C 78 [Century Spinning and Manufacturing Co. Ltd. Vs. THE State of Maharashtra], 1998 Supreme Court Cases (Cri) 1400 [Pepsi Foods Ltd. and Anr. Vs. Special Judicial Magistrate and Ors.], 1998 Supreme Court Cases (Cri) 1412 [State of U.P. Vs. Harban Sahai and Ors.],(2007) 3 Supreme Court Cases (Cri) 675 [Laxman Anaji Dhundale and Anr. Vs. State of Maharashtra], AIR 1990 Supreme Court 1962[Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja and Ors.] and JT 2007 (3) SC 229 [Harishchandra Prasad Mani and Ors. Special Judicial Magistrate and Ors.], 1998 Supreme Court Cases (Cri) 1412 [State of U.P. Vs. Harban Sahai and Ors.],(2007) 3 Supreme Court Cases (Cri) 675 [Laxman Anaji Dhundale and Anr. Vs. State of Maharashtra], AIR 1990 Supreme Court 1962[Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja and Ors.] and JT 2007 (3) SC 229 [Harishchandra Prasad Mani and Ors. vs. State of Jharkhand and Anr.] It is further submitted that those documents annexed with the application might have been subsequently created and there is no authenticity of those documents annexed with this application. It is submitted that the delay of one year in lodging the complaint has not been explained. It is submitted that in the statement under Section 161, Cr.P.C. Dr. J.R. Banik did not state about the presence of the Opposite Party No. 4 herein. 17. THE learned Counsel appearing for the Opposite No. 8 herein submits that there is no allegation against the Opposite Party No. 8 in the complaint. 18. THE learned Counsel appearing for the State produces the C.D. and submits that from Page 42 to 47 there are the papers regarding the treatment of the victim. The learned Counsel appearing for the petitioner has referred to the Order dated 25.06.2010 whereby the learned Magistrate rejected the prayer of the de facto complainant for fresh investigation or reinvestigation of the case. 19. I find that the said order dated 25.06.2010 cannot be taken into consideration while disposing of the instant application, in as much as, the petitioner has challenged the Order dated 07.01.2011 passed by the learned Chief Judicial Magistrate whereby the accused persons have been discharged. 20. THE incident allegedly took place on 10.07.2007. The assault was allegedly inflicted on Dr. J.R. Banik. The complaint was lodged with the Police Station by Dr. (Mrs.) Minati Banik on 18.06.2008. There is no whisper in the complaint as to the explanation for this inordinate delay of one year in lodging the complaint. It appears from the papers annexed with the application that on 11th July, 2007 both Dr. J.R. Banik and Dr. (Mrs.) Minati Banik informed the Police Station about the incident which allegedly took place on 10th July, 2007 at Medical Centre, Saltlake. There is also no mention in the complaint about the earlier information dated 11th July, 2007 given by both Dr. J.R. Banik and Dr. (Mrs.) Minati Banik to the Police Station. J.R. Banik and Dr. (Mrs.) Minati Banik informed the Police Station about the incident which allegedly took place on 10th July, 2007 at Medical Centre, Saltlake. There is also no mention in the complaint about the earlier information dated 11th July, 2007 given by both Dr. J.R. Banik and Dr. (Mrs.) Minati Banik to the Police Station. The learned Counsel appearing for the petitioner has drawn my attention to the Medical papers annexed with the application regarding the treatment of Dr. J.R. Banik. It appears that all these papers were issued in the year 2008, that is, long after the alleged incident. 21. THE learned Counsel appearing for the State has referred to the Medical papers appearing at Page 42 to 47. It appears that these papers were issued on 28.05.2008. The Discharge Certificate issued by Rabindranath Tagore International Institute of Cardiac Sciences shows that the patient was admitted complaining of headache for 7 days and weakness of left side of the body for 5 days. The incident allegedly happened on 10.07.2007. All these papers lying in the C.D. do not show that the ailments complained of were the resultant effect of the alleged assault upon Dr. J. R. Banik on 10.07.2007. 22. IN the case of Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra (Supra) it has been held by the Honourable Apex Court in Paragraph 16 as follows: "16. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible." I have gone through the decisions cited by the learned counsel for the parties. It is clear that while considering an application for discharge under Section 239 Cr.P.C. the Court has to see whether there are reasonable grounds for believing that a prima facie case has been made out on the basis of the materials collected by the prosecution during investigation. The documents annexed with the application regarding the treatment of Dr. J.R. Banik were not submitted to the I.O. during investigation. So these documents cannot be taken into consideration to come to an opinion whether a prima facie case has been made out or not. 23. I have gone through the statements of the witnesses recorded under Section 161, Cr.P.C. Considering materials appearing in the C.D., I find that the learned Magistrate did not commit any illegality or material irregularity in allowing the application under Section 239 Cr.P.C discharging thereby the accused persons. 24. IN the result, the application fails and the same stands dismissed. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.