The magistrate has the power to discharge the accused under section 245(2) of the Code even without taking evidence if the charge is considered groundless.

The question mooted is whether a magistrate can discharge the accused under section 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 section s 406 and 420 of the India Penal Code. Learned magistrate took cognizance of the offences and issued process to be 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 the complainant has been trying to delay the proceedings and thereby protract the case. Second reason is that allegations in the complaint do not "constitute the ingredients necessary for offences punishable under sections 406 and 420 of the Indian Penal Code."

3. The relevant allegations in the complaint are these : Accused's father executed a deed for repayment of Rs. 60,000/- to the complainant for which a charge was created on a bus which belonged to the former. After the death of accused's father, accused approached the complainant and wangled a "no objection certificate" from him in respect of the vehicle on the promise that he would clear off the liability after disposing of the bus. Accused took the bus from the custody of the complainant, and later sold the bus, but did not repay the debt to the complainant. On the strength of these allegations learned magistrate took cognizance of the offences under section 406 and 420 of the Indian Penal Code.

4. The procedure prescribed for warrant cases instituted otherwise than on police report should have been followed in this case. Under Section 244 of the Code, the Magistrate should proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. When such evidence has been taken or at any previous stage, the magistrate could frame a charge against the accused if he was of opinion that there was ground for presuming that the accused had committed an offence falling under Chapter XIX of the Code. This is indicated in Section 246. Now I shall extract Section 245 of the Code.

"When accused shall be discharged -

(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

It is clear that the stage envisaged in sub-section (1) would reach only after taking all the evidence which prosecution may produce. What is envisaged in sub-section (2) is "at any previous stage of the case". The discharge order under sub-section (1) can be passed when the magistrate finds that "no case has been made out." But the discharge order envisaged in sub-section (2) could be passed only if the magistrate considers the "charge to be groundless." Since the Section empowers a magistrate to pass such an order at any previous stage of the case, it is not necessary that evidence should have been adduced. If the accused, after his appearance in court, convinces the magistrate that the