ORDER

I.A. No. 1558 of 2017

The present I.A. has been filed on behalf of the petitioner for discharge under Section 245(2) Cr.P.C. in Original Criminal Miscellaneous No. 2 of 2014 initiated in C.P. No. 17 of 1999 wherein cognizance has been taken for offence alleged under Sections 454(5) and 454(5A) of the Companies Act, 1956 against the petitioner.

2. On an earlier occasion, a preliminary objection was raised on behalf of the Official Liquidator, submitting that the petition for discharge was not maintainable under Section 245(2) of the Cr.P.C. The petitioner then filed I.A. No. 970 of 2018 with a prayer to consider the discharge petition also under Section 251 of the Cr.P.C. Such prayer of the petitioner was allowed by order no. 38 dated 23.08.2018 with the observation that the original application be amended to the extent that it be treated as having been filed under Sections 245(2) and 251 of the Cr.P.C.

3. When the discharge petition was taken up for consideration on merits, a similar preliminary objection has been raised by learned counsel for the Official Liquidator with regard to its non-maintainability under Section 251 of the Cr.P.C. It is submitted that Section 251 occurs in Chapter XX of the Cr.P.C. which deals with summons cases. A bare perusal of Section 251 shows that there is no provision for framing of charge thereunder and as such there can be no occasion for consideration of the discharge petition. Reliance is placed on a decision of the Madras High Court in the case of Kumar vs. Perumal and Others, 1997 Cri.L.J. 907, wherein the validity of the order discharging the accused for the offence under Sections 147, 447, 427 and 506(1) of the Indian Penal Code by invoking the provisions of Section 251 of the Cr.P.C. had been challenged. Taking note of the various provisions such as Sections 251, 254 and 255(1) of the Cr.P.C., the Court expressed the view that the discharge petition under Section 251 of the Cr.P.C. was not maintainable. The following observations from the judgment have been referred –

“10. I have heard both the parties, perused the documents as well as the lower Court records. At the very outset I must say that the order suffers from grave illegality on two important points of law referred below. The offence for which the cognizance taken by the Magistrate are under Sections 147, 447, 427 and 506(1), I.P.C. as per the schedule of criminal procedure code these offences are to be tried as summons cases. The application for discharge was filed under Section 251 read with S. 255(1) of the Code of the Criminal Procedure. Section 251 read with S. 255(1), Cr.P.C. are contained in Chapter 20. This deals with trial of summon cases by the Magistrate. Under Section 251 of Criminal Procedure Code, when the accused appears before the Magistrate, the particulars of the offences for which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence is to make, but it shall not be necessary to frame a formal charge. Under Section 255(1) of the Code of the Criminal Procedure, if the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal. Therefore, these two sections do not refer the discharge. On the contrary, under Section 255(1), the Magistrate can acquit, only after taking evidence under Section 254 of the Code of the Criminal Procedure, Section 254 of Cr.P.C. contemplates the necessity of the Magistrate to proceed to hear the prosecution case and as such the Magistrate while invoking Section 255(1) of Cr.P.C. has to necessarily take of the witnesses of either side. Without resorting to this procedure Section 255(1) of the Code of the Criminal Procedure cannot be invoked. In this case, the respondents 1 to 13 herein, have filed a petition for discharge under Sections 251 and 255(1) of the Code of the Criminal Pr