Yeduruparthi Kamakshamma vs T. Taranadh and others.

Mr. Punnayya, J.—Sri K.V. Ramana Rao, the learned Counsel for the petitioners contends that the order passed by the lower Court is not in accordance with the provisions of Section 245 Cr.P.C. The circumstances under which the order was passed are as follows:-The complainant was not present on 2-2-1978 to which date the case was posted for continuation of the examination of the complainant. Previously the complainant was examined in part in chief. But on 2-2-1978, the complainant could not attend the Court and sent a petition for the reasons mentioned therein for adjournment. In the petition for adjournment it was stated that her grandmother died on 24-1-1978 and the ceremonies would be performed on that day at another place i.e., at Repalle village and hence she and her relatives had to go that place and she could not therefore attend the Court. The lower court dismissed that petition. But it did not stop there. It passed an order as follows;-

"Complainant is absent. All the accused present. Petition adjourn the case is dismissed. Prosecution is closed. As there is no evidence to proceed further, accused are discharged u/s 245 Cr. P. C"

I do not think that this order is in accordance with the provisions of sect ion 245 Cr. P.C. The court with one hand dismissed the petition for adjournment and with another hand held that the complainant bad no evidence and the prosecution was therefore closed, and as there is no evidence, the accused axe discharged u/s 245 Cr.P.C. Section 245 Cr.P.C., does not contemplate that the Court can take the power to close the prosecution against the will of the complaint who was, prepared wild the prosecution by giving evidence and also examining the witnesses. Merely because the complainant was absent, it does not mean that the complainant was no evidence or the complainant is not prepared to examine his witnesses. It is only after the evidence leti in by the complainant and also the evidence adduced by his witnesses is found to be unsatisfactory or does not make out any prima facie case to proceed further the Court has to discharge the accused. Section 245 Cr. P C. does not say that even if the complainant could not examine himself or his witnesses for valid reasons, the court is empowerd to close the prosecution and discharge the accused.

This is not a case where the complainant does not want to continue her evidence or examine her witnesses. The complainant could not continue her evidence on 2-2-1978 for reasons which are valid, as could be seen from the petition presented on her behalf for adjournment. The Learned Magistrate ought to have granted adjournment on such valid reasons. The notes paper reveals that the case underwent numerous adjournments because of the latches on the part of the accused, though two or three adjournments are due to the complainants unreadiness. But that cannot be a ground to refuse adjournment sought for on 2-2-1971 as the reasons pur forth for adjournment are justifiable The method followed by Magistrate for discharging the accused u/s 245 C. P. C. is not in accordance with the Provisions of Section 245. requires the Magistrates to take all the evidence as referred to in Section 144 and than the Magistrate should consider the evidence on record a finding that from the evidence brought on records no case against the accused has been made out and the finding so recorded should be supported by reasons. The Magistrate is, of course, competent to discharged the accused u/s 245 (2) even at an earlier stage if he records finding that the facts do not consut a criminal offence before the evidence was taken the Magistrate did not find that the facts do not constituteute. The learned Magistrate therefore, felt it necessary to take evidence. Having Chosen to do so, he cannot discharge the accused without taking the evidence as referred to in section 244. It is true that where the complainant persistently keeps away and does not offer himself for examination, a discharge on the material before the Court is justified. Bat the case on hand does not come under this category, as the complainant is ready at almost all the times and she gave evidence and she is prepared to examine all the witnesses whom she proposes to examine. Hence the learned Magistrate is not justified in applying the provisions of Section 245. I, therefore, set aside the impugned order and direct the Lower Court to restore C.C. No. 207/1976 and give notice to the complainant as well as the accused and then proceed with the matter in accordance with law.

In the result, the revision case is allowed.