Manmohan Malhotra Vesus P.m. Abdul Salam And Another v.

The question mooted is whether a magistrate can discharge the accused under section 245(2) of the Code of Criminal Procedure (for short the Code) even without taking any evidence. A magistrate did so as he considered the charge to be groundless, but the Sessions Judge in revision held that the magistrate has no power to do so without taking at least some evidence. Correctness of that view is being questioned by the accused in this revision.

2. A complaint was filed before a Chief Judicial Magistrate alleging that the accused has committed offences under section s 406 and 420 of the India Penal Code. Learned magistrate took cognizance of the offences and issued process to be accused. But after the accused entered appearance there was no further progress in the trial since the complainant was absent in court on consecutive posting dates. Finally the case was posted to 3-5-1988 for the appearance of the complainant. On that day, an application was filed on behalf of the complainant seeking adjournment as he was absent. But learned magistrate, on that day, discharged the accused under section 245(2) of the Code for which he advanced two reasons. One reason is that the complainant has been trying to delay the proceedings and thereby protract the case. Second reason is that allegations in the complaint do not "constitute the ingredients necessary for offences punishable under sections 406 and 420 of the Indian Penal Code."

3. The relevant allegations in the complaint are these : Accuseds father executed a deed for repayment of Rs. 60,000/- to the complainant for which a charge was created on a bus which belonged to the former. After the death of accuseds father, accused approached the complainant and wangled a "no objection certificate" from him in respect of the vehicle on the promise that he would clear off the liability after disposing of the bus. Accused took the bus from the custody of the complainant, and later sold the bus, but did not repay the debt to the complainant. On the strength of these allegations learned magistrate took cognizance of the offences under section 406 and 420 of the Indian Penal Code.

4. The procedure prescribed for warrant cases instituted otherwise than on police report should have been followed in this case. Under Section 244 of the Code, the Magistrate should proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. When such evidence has been taken or at any previous stage, the magistrate could frame a charge against the accused if he was of opinion that there was ground for presuming that the accused had committed an offence falling under Chapter XIX of the Code. This is indicated in Section 246. Now I shall extract Section 245 of the Code.

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

(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.

It is clear that the stage envisaged in sub-section (1) would reach only after taking all the evidence which prosecution may produce. What is envisaged in sub-section (2) is "at any previous stage of the case". The discharge order under sub-section (1) can be passed when the magistrate finds that "no case has been made out." But the discharge order envisaged in sub-section (2) could be passed only if the magistrate considers the "charge to be groundless." Since the Section empowers a magistrate to pass such an order at any previous stage of the case, it is not necessary that evidence should have been adduced. If the accused, after his appearance in court, convinces the magistrate that the allegations in the complaint, even if proved, would not amount to the offence, the magistrate has the power to discharge the accused. Merely because magistrate was earlier of opinion that there was sufficient ground for proceeding, the magistrate need not refrain from performing his judicial duty to discharge the accused. No doubt a magistrate issues process to the accused as per Section 204 of the Code since he was of opinion that there was sufficient ground for proceeding. But such opinion formed at the stage envisaged in Section 204 of the Code is no bar in forming a different opinion after accused appears and convinces him that the charge would be groundless. The order issuing process has only the effect of an interim order and it is open to the accused to canvass for its alteration or revocation (vide K. M. Mathew v. State, (1992) 1 Ker LT 1 : (1992 Cri LJ 3779).

5. Sri Sunny Mathew, learned counsel who argued for the complainant/respondent invited my attention to the observation of the Supreme Court in R. S. Nayak v. A. R. Antulay, AIR 1986 SC 2045 [LQ/SC/1986/136] : (1986 Cri LJ 1922) that "the stage for discharge under section 245 on the other hand is reached only after the evidence referred to in Section 244 is taken". Learned counsel on the strength of the said observation contended that without taking at least some evidence the court has no power to discharge the accused under Section 245(2). I dont think that the said observation need be given that meaning. Supreme Court in that case was considering the scope of discharge of the accused under section 245(1). In the said decision sub-section (2) was not in consideration at all.

6. Smt. K. P. Santhi, learned counsel for the accused, on the other hands, has relied on a few decisions in support of her contention that the power envisaged in Section 245(2) of the Code can be exercised at any stage irrespective of whether any evidence was collected or not. The corresponding provision in the old Code of Criminal Procedure was Section 253(2). A single Judge of Andhra Pradesh High Court in Solomon v. Ch. Luke, 1963 (1) Crl. LJ 347 has had that the words "previous stage" in sub-section (2) cannot be read as meaning any initial stage in the case, but it is only the stage previous to the situation the complainant, to say the least, before recording the order of discharge." With great respect, I find it difficult to accept the reasoning advanced by the learned Judge. For the thing, the expression is not merely "previous stage" but it is "at any previous stage". That little monosyllable "any" has the potency to stretch the ambit of the succeeding expression "previous stage" even up to the extreme other end. Secondly, the reasoning of Sharfuddin, J. (that the magistrate having found that there is sufficient ground to proceed against the accused cannot switch back so radically and alter his stand as soon as the accused appears) is no more sustainable in the light of the decision of the Supreme Court in K. M. Mathew v. State, (1992) 1 Ker LT 1 : (1992 Cri LJ 3779). The nub of the ratio in K. M. Mathews decision is that the order passed under section 204 of the Code to proceed further is only an interim decision and it can justifiably be altered after hearing the other side if the magistrate is convinced about it.

7. In Mansoor Shah v. Maya Shanker, AIR 1952 Madh Bha 125 : (1952 Cri LJ 1029) it has been held that to say that no case is made out, is not the same thing as saying that the charge is groundless. "The first sub-section obviously contemplates the taking of all the evidence referred to in the preceding Section. Sub-section (2) deals with cases in which the complaint appears to be so groundless "ab initio" or after some witnesses of the complainant have been examined that the examination of all or any of the remaining witnesses for the prosecution cannot materially help the case of the complainant." Learned Judge made a reference to the decision in Mohammed Sheriff v. Abdul Karim, AIR 1928 Madras 129 : (1929 (28) Cri LJ 995). Similarly, in Luis de piedade lobo v. Mahadev, 1984 Crl LJ 513 (Bombay) the same line of approach has been adopted. G. F. Couto, J. has observed thus : "The expression at any previous stage of the case occurring in sub-section (2) of Section 245, unmistakenly and undoubtedly shows that even before recording of the evidence referred to in Section 244, the Magistrate can discharge the accused if he considers, for reasons to be recorded, the charge to be groundless". In support of it learned Judge had referred to the decision of Himachal Pradesh High Court in Gopal Chauhan v. Smt. Satya, 1979 Cri LJ 446.

8. Learned Chief Judicial Magistrate has, therefore, rightly exercised his powers by switching back to the averments in the complaint to consider whether the charge was groundless, though such consideration happened to be made when the complaint was absent. On merits, learned Chief Judicial Magistrate was correct in holding that the averments did not make out any offence either under section 406 or Section 420 of the Indian Penal Code.

9. This revision is accordingly allowed and the impugned order passed by the learned Sessions Judge is set aside. Its corollary is that the order passed by the Chief Judicial Magistrate under Section 245(2) of the Code stands restored. Crl.R.P. is disposed of in the above terms.

Revision allowed.