MANMOHAN MALHOTRA Vs. P M ABDUL SALAM

JUDGEMENT

(1.) 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 Sections 406 and 420 of the Indian Penal Code. Learned magistrate took cognizance of the offences and issued process to the 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 in 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 : Accused's 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 accused's 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.