MANMOHAN MALHOTRA Vs. ABDUL SALAM

JUDGEMENT

(1.) THE question mooted is whether a magistrate can discharge the accused under Sec. 245(2) of the Code of Criminal Procedure (for short 'the Code') even without taking any evicence. A magistrate did so 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 Secs. 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 Sec. 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 there by protract the case. Second reason is that allegations in the complaint do not "constitute the ingredients necessary for offences punishable under Secs. 406 and 420 of the Indian Penal Code.

(3.) IN Mansoor Shah v. Maya Shankar, A.I.R. 1952 M.B. 125, it has been held thai 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-sec.(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, A.I.R. 1928 Mad. 129. Similarly, in Luis de piedade Lobo v. Mahadev, 1984 Crl.L.J. 513, 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-sec.(2) of Sec. 245, unmistakenly and undoubtedly shows that even before recording of the evidence referred to in Sec. 224, 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 Crl.L.J. 446.