Madhu Shankar and Others vs State of U.P. and Another

S.C. Agarwal, J.—This application u/s 482 Code of Criminal Procedure has been filed with a prayer to quash the order dated 23.12.2010 passed by Add. Civil Judge-Ill (Jr. Div.)/Judicial Magistrate, Mirzapur in complaint case No. 270 of 2009 under Sections 147, 148, 149, 452, 323, 504, 506 IPC, P.S. Jamalpur, District Mirzapur.

Heard learned Counsel for the applicants and learned A.G.A. for the State.

There is no need to issue notice to opposite party No. 2.

The applicant was summoned to face trial under Sections 147, 148, 149, 452, 323, 504, 506 IPC. The proceedings of the complaint case were challenged by the applicants by means of an Application u/s 482 Code of Criminal Procedure No. 26426 of 2010, which was disposed of on 25.8.2010 with a direction that if the applicants moved an application u/s 245(2) Code of Criminal Procedure through counsel within 30 days, the same shall be heard and disposed of expeditiously in accordance with the provisions of law. Accordingly, an application u/s 245(2) Code of Criminal Procedure was moved on 16.9.2010 praying for discharge and the same has been dismissed by order dated 23.12.2010 on the ground that it is not proper to proceed u/s 245(2) Code of Criminal Procedure and the applicants have not yet surrendered and their prayer will be considered after proceedings u/s 244 Code of Criminal Procedure

Learned Counsel for the applicants submitted that in accordance with the directions of this Court dated 25.8.2010, the Magistrate was bound to dispose of the application u/s 245(2) Code of Criminal Procedure on merits without insisting the surrender by the applicants.

I find sufficient force in the submission advanced by learned Counsel for the applicants. It appears that the Magistrate has no idea regarding distinction between Section 245(1) Code of Criminal Procedure And 245(2) Code of Criminal Procedure The stage of discharge or framing of the charge u/s 245(1) Code of Criminal Procedure comes after the evidence of the complainant is recorded u/s 244 Code of Criminal Procedure The learned Magistrate failed to notice that application was moved u/s 245(2), which provides as under:

When accused shall be discharged.--(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless.

It is obvious from the aforesaid provisions that powers u/s 245(2) Code of Criminal Procedure can be exercised by the Magistrate at any stage of the proceedings. When this Court earlier directed that the application u/s 245(2) Code of Criminal Procedure shall be moved by the applicants within 30 days and the same shall be disposed of by the Magistrate expeditiously and in the meantime no coercive steps shall be taken against the applicants, the application for discharge could not have been dismissed by the Magistrate on the ground that the applicants have not yet surrendered. It appears that the Magistrate has deliberately flouted the orders of this Court. Thus, the impugned order is absolutely illegal and is liable to be set-aside.

Application u/s 482 Code of Criminal Procedure is allowed. Impugned order dated 23.12.2010 is set-aside. Learned Magistrate (the word ''Learned'' is being used very reluctantly) is directed to dispose of application u/s 245(2) Code of Criminal Procedure on merits without insisting the personal appearance of the accused.

Till the disposal of application u/s 245(2) Code of Criminal Procedure on merits, no coercive steps shall be taken against the applicants.