Ramesh Kumar Jain and others vs Sanmati Vimal Jain Public School, Jagraon

Uma Nath Singh, J.—Heard learned Counsel for the parties and perused the record. This Court vide order dated 16.8.2004 had permitted withdrawal of the petition u/s 482 Code of Criminal Procedure with liberty to the Petitioners to file an application for recalling the summoning order dated 14.6.2004, but it appears that before the Magistrate could decide the case, judgment of Hon''ble the Apex Court reported in 2004 (4) RCR (Criminal) 1 equivalent to Adalat Prasad Vs. Rooplal Jindal and Others, was rendered wherein it was held that since recalling of process would amount to review, the Magistrate was not competent to do so and only the High Court, in exercise of its inherent powers u/s 482 Code of Criminal Procedure, was competent to quash the order. It appears from the rival submissions that summons were issued after recording the statement of the complainant so also on considering the averments in the complaint u/s 202 Code of Criminal Procedure It also appears that the judgment of Hon''ble the Apex Court is only with reference to Section 204 Code of Criminal Procedure that, once a summon is issued, the Magistrate ceased to be competent to recall the order, however, the judgment does not refer to Sections 244, 245 and 246 of Code of Criminal Procedure, which exclusively deal with the question of discharge. It also appears that u/s 245(2) Code of Criminal Procedure, the Magistrate can come to the conclusion at any earlier stage that the charge is baseless or transparently false. Thus recording of complete evidence or hearing on that is not necessary for exercise of powers u/s 245(2) Code of Criminal Procedure This power can be exercised even at the stage where the statement of the complainant is recorded or taken in the form of evidence. Thus, the Petitioners may avail this remedy if there is a dearth of material in the statement of the complainant or the averments of the petition did not warrant their summoning. This power can also be exercised if the charges are found to be groundless, thus, without recording any evidence.

To clarify the position further, it would be appropriate to refer to a judgment of Hon''ble Andhra Pradesh High Court reported in 1990 (Criminal Law Journal) 762. Para Nos. 4 and 5 of the judgment being relevant, on reproduction, read as under:

As seen Section 244, Code of Criminal Procedure contemplates discharge of the accused at two stages, viz. (i) after recording of all the evidence referred to in Section 244 and (ii) at any previous stage of the case. It is Section 246, Code of Criminal Procedure that provides procedure in cases where the accused is not discharged. It runs as under: "246. Procedure where accused is not discharged: (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to any (try ?) and which, in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused.

Thus, we again come across the phrase `at any previous stage of the case'' in Section 246(1). The phrase, as such was the subject-matter of interpretation by this Court in Solomon v. Luke, (1963) 1 AnWR 173 : (1963 (1) Crl LJ 347). Referring to the phrase `at any previous stage of the case'' occurring in Sections 253(2) and 254 of the old Code (corresponding to Sections 245(2) and 246 of the present Code), Justice Sharfuddin Ahmed held (at pp. 348, 349 of Cri LJ):

Now, Section 253(1) provides for taking all the evidence referred to in Section 252 and the order of discharge has to follow in the event the Magistrate finds that no case against the accused has been made out. `Previous stage'' in this context would be any stage before the recording of the entire evidence. To my mind, Sub-section (2) empowers the Magistrate to discharge the accused if he finds the charge to be groundless on recording a few witnesses or even on examination of the complaint. (emphasis supplied). The restriction imposed in Sub-section (1) has been relaxed as the Magistrate has been empowered to act under Sub-section (2) if before completing the evidence he finds the charge to be groundless. It does not do away completely with the necessity of examining some witness or hearing the complaint to say the least before recording an order of discharge. The words `previous stage'' also appear in Section 254, Code of Criminal Procedure Therein the Magistrate has been empowered to frame a charge at any previous stage of the case if there is ground for presuming that the accused has committed an offence. The interpretation I have placed on the words `previous stage'' in Section 253(2), Code of Criminal Procedure seems to be consistent with the use of the words and vesting of the power in the Magistrate to frame charge u/s 254, Code of Criminal Procedure.

Previous stage, thus, is a stage after recording some evidence. It is neither a stage before recording of any evidence at all nor a stage after recording of the entire evidence but is in between. (emphasis supplied). The interpretation, thus, placed on the words `any previous stage'' of the case, occurring in Section 246(1) also appears to be more in consonance with the order of sections numbered in the Code and also with the heading given to Section 246 viz. `procedure where accused is not discharged''. The very heading of the section in fact indicates that it would come into play only after the matter was examined in the light of Section 245 Code of Criminal Procedure and the accused was not discharged thereunder. Therefore, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused would be discharged u/s 245 Code of Criminal Procedure and it is only when he finds it otherwise he can have resort to Section 246, Code of Criminal Procedure In other words, a valuable right for consideration of the case of the accused for purpose of discharge is conferred by Section 245, Code of Criminal Procedure (emphasis supplied). Accordingly, he cannot jump over Section 245, Code of Criminal Procedure and frame charges u/s 246, Code of Criminal Procedure.

Again in Abdul Nabi Vs. Gulam Murthuza Khan and Another, , this Court was to interpret the same phrase `at any previous stage'' occurring in Section 253(2) (corresponding to Section 245 of the present Code). While so interpreting this Court held (para 7):

It can only mean that after the stage of Section 203 is passed, but some evidence is recorded u/s 253 (corresponding to Section 244 of the present Code) and before all the evidence referred to in Section 252 is recorded the Magistrate can discharge the accused. He cannot dismiss the complaint and discharge the accused before recording any evidence whatsoever u/s 252 Code of Criminal Procedure That will not only militate against the natural conclusion which must follow from the reading of Sections 203 and 294 but would be contrary to Sections 252 and 253, Code of Criminal Procedure themselves.

The Magistrate, thus, cannot discharge the accused before recording any evidence whatsoever u/s 244 of the present Code. Exactly same is the observation of the Supreme Court in Cricket Association of Bengal and Others Vs. State of West Bengal and Others, while dealing with the phrase in question occurring in Section 253(2), Code of Criminal Procedure of the old Code. In view of this case law, when even, for purposes of discharging the accused u/s 245, Code of Criminal Procedure, it is incumbent upon the Magistrate to record some evidence, though not the entire evidence, u/s 244 Code of Criminal Procedure the case for framing of charges u/s 246 Code of Criminal Procedure is an afortiori one and accordingly unless and until the matter receives consideration u/s 245, Code of Criminal Procedure the charges contemplated by Section 246, Code of Criminal Procedure cannot be framed.

(emphasis supplied).

Needless to say that vide the order dated 19.10.2004, learned Sub Divisional Judicial Magistrate, Jagraon, dismissed the earlier application u/s 245 Code of Criminal Procedure under the impression that the Petitioners had been granted liberty by this Court vide the order dated 28.9.2004 to file application for recalling the summoning order which, if considered, would amount to reviewing its order dated 16.4.2004 and also on the ground that an application u/s 245(2) Code of Criminal Procedure is not maintainable in a summons case. If that be so the Magistrate can adopt the procedure as per Chapter XX of the Code of Criminal Procedure However, looking to the nature of offences being under Sections 420, 465, 467, 468, 469, 471 and 120-B IPC, if learned Magistrate at any stage decides to exercises powers u/s 259 Code of Criminal Procedure, then Petitioners'' application u/s 244 and 245 Code of Criminal Procedure shall be considered on merits in terms of the aforesaid judgment of the A.P. High Court within 3 months from the date of filing of such application. Further, in both the cases of trial whether as a summons case or a warrant case the Petitioners would be at liberty to raise all the relevant points as agitated herein including the one that in a civil revision, this Court has given a finding in their favour. That apart, in terms of prayer, the Petitioners would be at liberty to appear before Court through counsel till before the stage of accused statement in summons case and till the application under Sections 244-245 Code of Criminal Procedure is decided if treated is a warrant case. Thus, Crl.M. No. 51569-M of 2004 is allowed in part to the extent of aforesaid directions and consequently the order dated 19.10.2004 passed by learned SDJM, Jagraon is set aside.

Petition partly allowed.