ORDER

K.T. Thomas, J. - The question mooted is whether a magistrate can discharge the accused under Sec. 245(2) of the Code of Criminal Procedure (for short 'the Code') even without taking any evidence. A magistrate did so as he considered the charge to be groundless, but the Sessions Judge in revision held that the magistrate has no power to do so without taking at least some evidence: Correctness of that view is being questioned by the accused in this revision.

2. A complaint was filed before a Chief Judicial Magistrate alleging that the accused has committed offences under Sec. 406 and 420 of the Indian Penal Code. Learned magistrate took cognizance of the offences and issued process to the accused. But after the accused entered appearance there was no further progress in the trial since the complainant was absent in court on consecutive posting dates. Finally the case was posted to 3.5.1988 for the appearance of the complainant. On that day, an application was filed on behalf of the complainant seeking adjournment, as he was absent. But learned magistrate, on that day, discharged the accused under Section 245 (2) of the Code for which he advanced two reasons. One reason is that