Harish Verma Vs Kush Kumar Suryavanshi

BALRAM PRASAD DEWANGAN 1. This Criminal Miscellaneous Petition U/s. 482 of Cr.P.C. is filed Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.10.10 16:21:56 +0530 challenging the legality and sustainability of the order dated 13.04.2023, passed by learned 9^th Additional Sessions Judge, Raipur in Criminal Revision No.162 of 2023, whereby learned Sessions Court

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allowed the revision filed by respondents, remitted back the case to the trial Court for deciding the case afresh in accordance with law.

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Facts relevant for disposal of this petition are that respondents herein filed a complaint U/s. 200 of Cr.P.C. before the Judicial Magistrate First Class, Raipur pleading therein that petitioner/non-applicant therein has committed an offence U/s. 420, 467, 468, 506 of Indian Penal Code. After recording preliminary evidence, the complaint was registered for alleged offence U/s. 420 of I.P.C. and issued process. After appearance of non-applicant therein, the case was fixed for recording of evidence before charge, however, the evidence before charge could not be recorded even after giving several opportunity, therefore, right was closed and case was fixed for argument before charge. On the next date fixed complainant was not present and after hearing counsel for non-applicants/accused, learned Magistrate has discharged the accused therein recording that no evidence had been adduced by complainant to frame charge U/s. 420 of I.P.C. against accused persons, even after giving several opportunities to examine witness before charge. Order of discharge was put to challenge by the complainant in revision before the learned Additional Sessions Judge, Raipur, which was allowed vide impugned order setting aside the order dated 18.08.2022 and remitted back the case to the learned Magistrate deciding the case in accordance with law.

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Learned counsel for petitioner would submit that under the provision as envisaged in Section 245 of Cr.P.C., there is no bar for the Magistrate in discharging the accused at any previous stage of case. He contended that learned Magistrate in exercise of power as

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provided U/s. 245 (2) of Cr.P.C., discharged the accused persons vide order dated 18.08.2022, however, the learned Sessions Judge has arbitrarily set-aside the well reasoned order. He contended that respondents when once have failed to challenge or to object the order dated 05.08.2022 whereby opportunity of complainant to lead evidence was closed then he cannot challenge the subsequent order. He also submitted that learned Additional Sessions Judge has taken note of covid pandemic period, however it started only from 25^th March, 2020, but the case was fixed for recording of evidence before the charge prior to that i.e. since 06.02.2019. The reasons assigned for not examining the witnesses before the charge is not acceptable.

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Learned counsel for respondent opposes the submission and would submit that order passed by the learned Revisional Court is in accordance with law, hence, it does not call for any interference.

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I have heard learned counsel for parties and perused the documents enclosed along with petition.

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Petitioner has enclosed the copy of order-sheet of the proceedings before the Magistrate on complaint filed by respondents U/s. 200 of Cr.P.C. and copy of the application U/s. 200 of Cr.P.C. against petitioner therein.

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Before proceeding further I find it appropriate to glance the provision U/s. 245 of Cr.P.C. which reads as under :-

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“245. When accused shall be discharged .—(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out

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which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

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(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”

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Chapter -19 of the Code of Criminal Procedure, 1973 deals with trial of warrant cases by Magistrates. Clause A under the said chapter deals with cases instituted on police report and the proceeding there in is prescribed U/s. 242 (2). Clause- B under the above chapter provides for cases instituted otherwise than on police report. Section 244 envisages evidence for prosecution. Section 245 talks of when accused shall be discharged. Section 245 of Cr.P.C. is in two parts. Section 245 (1) talks of powers of Magistrate to discharge the accused after considering the evidence as referred to in Section 244 for the reasons to be recorded that no case against accused has been made out. Sub-section 2 of Section 245, empowers the Magistrate for discharging the accused at any previous stage of the case, however, it provides that for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

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From the above discussed provisions of Section 245 of Cr.P.C., it is apparent that the said provision provides power to the Magistrate to discharge the accused after considering the entire evidence available before it as referred to Section 244 of Cr.P.C..

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In the case at hand, the evidence of complainant has not been recorded by the Magistrate, therefore, there is no material before the

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learned Magistrate to exercise its power as provided under Section 245 (1) of Cr.P.C. to discharge accused therein.

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For passing an order of discharge before the evidence as referred to in Section 244, the Magistrate has to record reasons that he considers the charge to be groundless. In the case at hand, Magistrate while passing an order of discharge has not fulfilled requirement as mandated under Sub-section 2 of Section 245. There is no finding/reasons of the Magistrate to discharge the non-applicant/therein that charge to be groundless. But from perusal of the order passed by the Magistrate it only mentions that no evidence has been brought by the complainant even after giving several opportunities to lead evidence. The reasons assigned for discharging the accused therein in its order dated 18.08.2022 by the Magistrate is not within the purview of Section 245 (1) and 245 (2) of Cr.P.C.

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Hon’ble Supreme Court in case of Vishnu Kumar Shukla v. State of U.P., reported in (2023) 15 SCC 502 has observed thus :-

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15. The extent of scrutiny permissible when an application for discharge is being considered has attracted this Court's attention on a number of occasions. It is appropriate to take note of the leading precedents on the subject. Insofar as Section 245, CrPC is concerned, the decision of this Court in Ajoy Kumar Ghose v. State of Jharkhand [ Ajoy Kumar Ghose v. State of Jharkhand , (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] is instructive : (SCC pp. 12425 & 127-28, paras 19-20, 22-25 & 36-37)

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“ 19 . The essential difference of procedure in the trial of warrant case on the basis of a police report and

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that instituted otherwise than on the police report is particularly marked in Sections 238 and 239CrPC on one side and Sections 244 and 245CrPC on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like the police report, FIR, statements recorded under sub-section (3) of Section 161CrPC of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents which have been forwarded by the prosecuting agency to the court.

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20 . After that, comes the stage of discharge, for which it is provided in Section 239CrPC that the Magistrate has to consider the police report and the documents sent with it under Section 173CrPC and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of the aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240CrPC and the trial proceeds for recording the evidence . Thus, in such trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.

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22 [ Ed. : Para 22 was corrected vide Official Corrigendum F.3/Ed.B.J./124/2009 issued on 22-82009 by the Court.] . In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the framing of the charge. Of course, under Section 245(2)CrPC, a Magistrate can discharge the accused at any previous stage of the case , if he finds the charge to be groundless.

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23 . Essentially, the applicable sections are Sections 244 and 245CrPC since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1)CrPC or to summon its witnesses under Section 244(2)CrPC. This did not happen and instead, the accused proceeded to file an application under Section 245(2)CrPC on the ground that the charge was groundless.

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24 . Now, there is a clear difference in Sections 245(1) and 245(2) of CrPC. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1)CrPC.

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25 . The situation under Section 245(2)CrPC is, however, different. There, under sub-section (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an

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accused under Section 245(2)CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under Section 244CrPC. The words appearing in Section 245(2)CrPC “ at any previous stage of the case ”, clearly bring out this position.

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36 . The Magistrate has the power to discharge the accused under Section 245(2)CrPC at any previous stage i.e. before the evidence is recorded under Section 244(1)CrPC, which seems to be the established law, particularly in view of the decision in Cricket Assn. of Bengal v. State of W.B. [ Cricket Assn. of Bengal v. State of W.B. , (1971) 3 SCC 239 : 1971 SCC (Cri) 446] , as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo v. Mahadev Vishwanath Parulekar [ Luis de Piedade Lobo v. Mahadev Vishwanath Parulekar , 1983 SCC OnLine Bom 323] . The same decision was followed by Kerala High Court in Manmohan Malhotra v. P.M. Abdul Salam [ Manmohan Malhotra v. P.M. Abdul Salam , 1994 SCC OnLine Ker 5] and Hon'ble Justice K.T. Thomas, as the learned Judge then was, accepted the proposition that the Magistrate has the power under Section 245(2)CrPC to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of the Madras High Court in Mohd. Sheriff Sahib v. Abdul Karim Sahib [ Mohd. Sheriff Sahib v. Abdul Karim Sahib , 1927 SCC OnLine Mad 137 : AIR 1928 Mad 129 (1)] , as also the judgment of the Himachal

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Pradesh High Court in Gopal Chauhan v. Satya [ Gopal Chauhan v. Satya , 1978 SCC OnLine HP 33] .

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37 . We are convinced that under Section 245(2)CrPC the Magistrate can discharge the accused at any previous stage i.e. even before any evidence is recorded under Section 244(1)CrPC. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.”

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(emphasis in original and supplied)

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The learned Revisional Court taking note of the provisions U/s. 245 (2) has rightly come to conclusion that order of discharge is not in accordance with the provisions as provided U/s. 245 of Cr.P.C., which in the opinion of this Court does not call for any interference.

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For the foregoing discussion, I do not find any merit in this petition accordingly, it is dismissed.

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Registry is directed to send copy of this order to concerned Court for information and necessary action.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Harish Verma v. Kush Kumar Suryavanshi

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Harish Verma v. Kush Kumar Suryavanshi

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