Bundu Khan and Another vs State of U.P. and Another

Rajesh Chandra, J.—The applicants have moved this application u/s 482, Code of Criminal Procedure with a prayer that the order dated 26.6.2009, passed by the Judicial Magistrate, Hapur district Ghaziabad in Case No 80/08 as also the further proceedings of the said case may be quashed.

In brief the facts of the case are that one Yusuf moved an application u/s 156(3), Code of Criminal Procedure in the Court of Judicial Magistrate, Hapur. The application was registered as a complaint and thereafter statement of the complainant was recorded u/s 200, Code of Criminal Procedure. The Court further recorded the statements of Imamuddin and Fakir u/s 202, Code of Criminal Procedure. The lower court after going through the oral and documentary evidence came to the conclusion that prima facie the offences under Sections 406, 504 and 506, I.P.C. are made out against the accused-applicants and thereafter summoned them for those offences vide order dated 4.12.2008.

The accused-applicants then moved an application u/s 245(2), Code of Criminal Procedure which application was rejected by the lower court vide order dated 26.6.2009.It is this order which has been challenged in this application u/s 482, Code of Criminal Procedure.

3A. I have heard the learned Counsel for the applicants as well as the learned A.G.A.

I have also gone through the record. A perusal of the impugned order makes it clear that the application u/s 245(2), Code of Criminal Procedure was moved by the accused-applicants through their Counsel without putting in their appearance in the Court. Since there is no averment in the application u/s 482, Code of Criminal Procedure that the personal attendance of the accused persons was dispensed with by the Magistrate u/s 205, Code of Criminal Procedure hence it was necessary for the accused-applicants to put in their appearance in the lower court, seek their bail and then move an application u/s 245(2), Code of Criminal Procedure As the accused-applicants did not appear in the lower court hence their application u/s 245(2), Code of Criminal Procedure was rightly rejected by the lower court and to that extent I do not find any illegality in the order passed by the lower court.

In the impugned order an observation has been made by the lower court that it does not possess powers to review its own order by which the accused-applicants have been summoned. I feel this observation was not correct. If the accused-applicants appear in the lower court and move an application u/s 245(2), Code of Criminal Procedure, it will not amount to seeking a review of the summoning order. u/s 245(2), Code of Criminal Procedure a right has been given to the accused persons to seek their discharge at any previous stage of the case and the Magistrate has been empowered to discharge the accused for reasons to be recorded by such Magistrate, if the Magistrate considers the charge to be groundless. Thus, an application for discharge may be moved by the accused persons before reaching upto the stage of Section 244, Code of Criminal Procedure. Similar view has been taken by Hon. K.N.Sinha, J., inGirish Chandra Gupta v. State of U.P. (L)2004 ACC 735 : 2005 (1) ACR 427

In this connection an observation of the Apex Court in State of Bihar Vs. Baidnath Prasad @ Baidyanath Shah and Another, may be referred which is as under:

An order of discharge of the accused after collecting the evidence envisaged u/s 244 of the Code can be passed only when 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." This is the legislative edict of Section 245 of the Code. The only other exception to the said precept is that it is open to the Magistrate to discharge 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.

Thus, an application may be moved for discharge of accused even before the case reaches the stage of Section 244, Code of Criminal Procedure.

In any case so far the impugned order is concerned there is no illegality or impropriety in it.

The application u/s 482, Code of Criminal Procedure is dismissed.