ALOK MITRA Vs. NARENDRA KUMAR @ NANDA RAI

JUDGEMENT

(1.) THIS revision, filed under section 397/401 read with section 482 of the Code of Criminal Procedure, is directed against the order dated 3-4-1984, passed by the Judicial Magistrate, Class J, Mandla in Criminal case No. 148 of 1981 (Narendra Kumar v. Alok Mitra and others

(2.) ON complaint dated 20-12-1979 filed by the non-applicant No.1, the applicant have been put on trial for offence under section 500, Indian Penal Code. After filing of the complaint, the learned Magistrate examined the complainant and found a prima facie case existing against the applicants and therefore issued process for their appearance, on the same date. Later on, when the applicants appeared before the learned Magistrate, particulars of offence were explained to them on 3-5-1980. The matter had been brought to this Court twice before Cri. Revision No. 550 of 80 and Criminal Revision No. 85 of 81 for decision whether the Judicial Magistrate had territorial jurisdiction to try the offence and whether the procedure followed by him was proper. As a result of the aforesaid, the evidence of complainant in the case has not yet started. On 27-4-1983 the applicants, through their Advocate moved an application. under section 245 (2 of the Code of Criminal Procedure praying for their discharge, as charges against them, were groundless. This application has been dismissed by the impugned order dated 30-4-1984 which is the subject matter of this application. By the impugned order the learned Judicial Magistrate has held that since particulars of offence were explained to the applicants only because the Court found the prima facie case existing against them and nothing new has been brought on record since then, the application did not lie.

(3.) SECTION 245 of the Code is the modified version of section 253 of 1898 Code. Sub-section (2) of this section is, however, the same as old section 253 (2), and permits discharge of an accused person even before any evidence against him is taken provided the learned Magistrate, for reasons to be recorded, considers the charge to be groundless. In Abbey Dass v. Gurdial Singh, AIR 1971 SC 834, it was held that where the accused was liable to be found guilty if the allegations against him are found to be true, it cannot be said that the charge is groundless. In S.K. Kashyap v. State of Rajasthan, AIR 1970 SC 1120, the Supreme Court held that word charge in this provision has no reference to the framing of the charge and is only used in the sense of an accusation or allegation to an offence. The distinction between sub-section (1) and sub-section (2) of the provision was brought out by the Supreme Court in Cricket Association v. State of West Bengal, AIR 1971 SC 1925, and it was held that although sub-section requires the Magistrate to take all the evidence referred in section 244 discharging the accused, sub-section (2) empowers the Magistrate to discharge the accused at any previous stage of the case if he finds that the charge against the accused is a groundless one. This decision would, therefore indicate that the Magistrate taking cognizance of the matter is entitled to discharge the accused even before any evidence has been taken in support of the charge provided he finds that the charge is groundless. Since this power can be exercised only after the cognizance of the offence has been taken either by registering the complaint or by issuing process against accused persons neither the order taking cognizance nor the order issuing process is sufficient to decline exercise of this power. Indeed it would appear that at the stage of taking cognizance or issuing process the learned Magistrate has before him only the version of the complainant but at the stage of section 245, he has the accused present before him and therefore aware of his defence as well. The accused may raise specific plea while denying the charge or by filing application in this behalf. Exercise of powers under sub-section (2) cannot be declined only because no new material had been brought on record after the particulars of the allegations are explained. If an accused person denies the charge and submits that no prima facie case has been made out against him, it will not be proper answer to his plea that no new material has been placed for consideration of the Court after framing of the charge. In spite of it, no hard and fast rule can be laid down as to when a Magistrate will be justified in holding a charge to be groundless. The conclusion will always depend on facts and circumstances of each case. It is. however, clear that in every case the Magistrate has to arrive at his conclusion judicially, it appears settled that the Magistrate has the power to discharge an accused under this story related by the complainant himself is of such a nature that it does not disclose a criminal offence. In Gopesh Chandra v. Nirmal Kumar, AIR 1950 Cal. 57, the Court upheld discharge of an accused claiming protection of Exception 4 of section 499, Indian Penal Code. Clearly, therefore, if the complaint does not disclose a prima facie case against the accused, the Magistrate would be justified in proceedings under this provision and pass an order of discharge. Under the circumstance, the learned Judicial Magistrate was not right in refusing to examine the submission of applicants only because he had earlier explained particulars of the offence to them. Explaining particulars to the applicants did not act as estoppel against them nor did it take away the jurisdiction of the Court under this provision. In this view of the matter, this Court is not in a position to sustain the impugned order.