Natarajan and Sambasiva Reddiar vs U. Shakila

M. Karpagavinayagam, J.—Five private complaints filed against five accused containing common allegations and the same were taken on file in C.C. Nos. 65 of 1998 to 69 of 1998 by the Judicial First Class Magistrate, Pondicherry for the offences under Sections 405, 420-B, 436 and 465 read with 34 I.P.C. On receipt of summons, Natarajan (A4) and Sambasiva Reddiar (A5) filed applications for discharge u/s 245(2) Code of Criminal Procedure. The trial Court, after considering the submissions made by the counsel for the parties, dismissed the same through separate orders. Assailing the same, the Petitioners (A4 and A5) have filed these revisions.

I heard the learned Counsel for the parties.

According to the counsel for the Petitioners (A4 and A5), there is no allegation against the Petitioners in each of the complaint and therefore, they ought to have been discharged u/s 245(2) Code of Criminal Procedure.

The said contention was refuted by the learned Counsel for the complainant, since the claim for discharge before recording the evidence is not maintainable.

The trial Court dismissed the said applications mainly on the reason that without recording the evidence, the accused cannot be discharged, particularly, when the trial Court earlier took cognizance and issued summons against all the accused including the Petitioners (A4 and A5) on having satisfied with the allegations in the complaint.

On going through the impugned orders refusing to discharge the accused, I am of the opinion that the ground for dismissal is untenable.

A perusal of the relevant provisions relating to the trial of warrant cases instituted as private complaint, namely, Sections 242 to 247 Code of Criminal Procedure it is clear that the accused can be discharged u/s 245(2) Code of Criminal Procedure for reasons to be recorded by the trial Court at any previous stage of the case, if the trial Court considers the charge to be groundless.

Therefore, the issuance of summons by the trial Court on having satisfied with regard to the averments mentioned in the complaint u/s 204 Code of Criminal Procedure would not disentitle the accused to request the Court to discharge him u/s 245(2) Code of Criminal Procedure even before the commencement of the trial.

In other words, even before recording the evidence, it can be pointed out to the Court concerned that the issuance of the summons by the trial Court was not correct, as the charge leveled against the accused is groundless.

The general rule laid down in Section 245(1) Code of Criminal Procedure regarding discharge is that it would take place only after taking all the prosecution evidence and after the Magistrate coming to the conclusion, for the reasons to be recorded that no case against the accused was made out.

But, to this general rule, there is exception in Sub-section (2) of Section 245 Code of Criminal Procedure which permits the Magistrate to discharge the accused at any previous stage of the case if, for the reasons to be recorded by the Magistrate, he considers the charge to be groundless.

The expression "at any previous stage" of the case occurring in Sub-section (2) of Section 245 Code of Criminal Procedure would clearly show that even before recording of evidence referred to in Section 245(1) Code of Criminal Procedure the Magistrate can discharge the accused if he considers the charge to be groundless. Therefore, the issuance of summons on taking cognizance would not be a bar for the Magistrate to invoke Section 245(2) Code of Criminal Procedure to discharge the accused before recording the evidence.

The order taking cognizance is an exparte order and the action of taking cognizance is taken behind the back of the accused by die Magistrate purely on the complaint and the sworn statement recorded by him.

If we look at Section 245(2) Code of Criminal Procedure it is clear that the Magistrate is not precluded from discharging the accused in private cases, if the accused satisfies the Court after his appearance that the summons have been wrongly issued against him and the charge against him is groundless. If a contrary view is taken, then Section 245(2) Code of Criminal Procedure would became redundant. Intendment behind Section 245(2) is that the complaint should not be allowed to be proceeded with on a charge which is groundless.

It is true that ordinarily, the Magistrate should record evidence and proceed u/s 245(2) Code of Criminal Procedure and thereafter to continue die proceedings u/s 245(1) Code of Criminal Procedure But, it is equally true that in view of the language employed by die legislature in Section 245(2), there is no bar against the Magistrate in discharging the accused even without recording the evidence in appropriate case.

The words "at any previous stage" of the case occurring in Section 245(2) Code of Criminal Procedure give a very wide power to the Magistrate for reasons to be recorded by him that the charge is groundless, even without recording any evidence u/s 245(1) Code of Criminal Procedure. Thus, it is clear that soon after his appearance, the accused would be entitled to claim discharge u/s 245(2) Code of Criminal Procedure on the ground that the complaint ought not to have been taken on file against the accused.

The above view of mine is supported by the following decisions rendered by various High Courts

Sundar Das Loghani Vs. Fardun Rustom Irani,

Fazlar Rahaman and Others Vs. Emperor,

Kasinatha Pillai Vs. Shanmugam Pillai and Another,

Luis De Piedade Dobo v. Mahadev (1984 Cri.L.J. 513);

Watson v. Metcalfe (1925 Pat 154);

Abhey Dass v. Gurdial Singh (AIR SC. 834),

K. Gopala Panicker Vs. Kumaran Kesavan Nediyaplankalavila Veedu and Others,

AIR 1940 40 (Lahore)

Mansoor Shah v. Maya Shankar (AIR 1952 MB 125);

Cricket Association of Bengal and Others Vs. State of West Bengal and Others, and

Shiv Kumar Daga Vs. State of Assam and Another,

Under those circumstances, the decision of the Bombay High Court in Luis De Piedade Lobo v. Mahadev (1984 Cri.L.J. 513) cited by the teamed counsel for the Respondent stating that once summons was issued u/s 204 Code of Criminal Procedure the Magistrate cannot change his prior opinion while issuing process unless some evidence is recorded to change his opinion is not correctly decided.

Let us now come to the next question as to whether the accused has come out the case to show that the charge is groundless so as to invoke Section 245(2) Code of Criminal Procedure.

According to the complaint and the sworn statement of the complainant, on behalf of the company one Sugumar (A3) made a false representation with reference to the sale of the flat and handed over false documents to the complainant by inducing them. The said third accused received a sum of Rs. 7 Lakhs.

Either in the complaint or in the sworn statement, there is no reference about the representation, which was found to be false, alleged to have been made by the Petitioners (A4 and A5) to the complainant. The only reference in the complaint is that the Petitioners (A4 and A5) are connected with the first accused company on whose behalf Sugumar (A3) made a false representation and false documents were handed over to the complainant.

In other words, there is no specific averment with reference to the involvement of the Petitioners (A4 and A5) in regard to the offences for which the complaints were taken on file.

Under those circumstances, the Magistrate ought to have discharged the Petitioners (A4 and A5) and die order of dismissal was passed mainly on the reason that already summons were issued to the accused after having satisfied with the averments made in the complaint and the sworn statement cannot be said to be valid in law.

In view of the above reasoning, the impugned orders are set aside and the Petitioners (A4 and A5) are discharged. The trial Court is directed to commence the trial as against the other accused and dispose of the same as expeditiously as possible.

In the result, all these Criminal Revision Cases are allowed. Consequently, Crl.M.P. Nos. 10059, 10061, 10063, 10065 and 10067 of 1999 are closed.