A person cannot claim discharge from criminal liability based on resignation from a position held at the time of the alleged offenses.

JUDGMENT :

Pradip Mohanty, J. - Challenge in this revision is to the order dated 3.7.2007 passed by the S.D.J.M., Bhubaneswar in I.C.C. No. 2855 of 2005 so far as it relates to rejection of an application filed by the Petitioner for deletion of his name from the complaint petition.

2. Fact of the case, in brief, is that the present opposite party filed a complaint case (I.C.C. No. 2855 of 2005) against the Petitioner and others before the S.D.J.M., Bhubaneswar. The charge was framed under Sections 469/471/500/501/502/34 IPC. After completion of the complainant's evidence, the case was posted for recording of accused statement. The present Petitioner, as accused No. 3, before recording of the accused statement, filed a petition before the S.D.J.M., Bhubaneswar to delete his name from the cause title of the complaint petition on the ground that he is no more the Executive Secretary of the Servants of People Society with a further prayer not to record his statement u/s 313 Code of Criminal Procedure as the same is not permissible in the eye of law. The learned S.D.J.M. after hearing the parties rejected the application inter alia on the ground that though charge was framed since long, the Petitioner did not challenge the same and participated in the hearing, and only after the Court directed him to appear for recording accused statement, he came up with such a petition.

3. Learned Counsel for the Petitioner submitted that meanwhile the present Petitioner has resigned from the post of Secretary of the Servants of People Society as well as Executive Secretary of B.O.M., Orissa Branch with effect from 1.10.2006. After closure of the complainant's evidence, the present Petitioner filed an application before the trial Court for deletion of his name as he was no more the Secretary of Executive Secretary. The Petitioner was not made an accused personally but because he was the holder of the above post. Therefore, his statement as an accused was not to be recorded. The S.D.J.M. without considering the provisions of Section 245 Code of Criminal Procedure and without assigning any reason rejected the application. The scope of Section 245 Code of Criminal Procedure is very wide. After taking all the evidence, the Magistrate, if considers, for reasons to be recorded, that no case against the accused has been made out, shall discharge the accused. Accused can file the application for discharge at any stage of the case. He further submits that in the instant case, a reading of the complaint petition as well as the entire evidence adduced from the side of the complainant does not bring out any specific allegation against the present Petitioner in his personal capacity. Therefore, the learned Magistrate has committed an error in not allowing the petition filed by the Petitioner. It is the settled principle of law that This Court may, by exercising its discretion u/s 401 Code of Criminal Procedure, call for the records and pass appropriate orders.

4. Mr. Mohanty, learned Counsel for the opposite party, submitted that the criminal revision is not maintainable in law and amounts to abuse of process of the Court. Moreover, Petitioner has sought enforcement of the provisions of Section 248 Code of Criminal Procedure for his discharge from the complaint case. But, in the civil suit pending before the Court of Civil Judge (Senior Division), Bhubaneswar between the same parties, while filing his written statement the Petitioner has described himself as the Secretary of the Servants of People Society. The belated attempt of the Petitioner to bring his revisional application within the parameters of the alleged breach of Section 245 Code of Criminal Procedure, is nit permissible, as admittedly no such application was moved before the trial Court. Therefore, This Court cannot revise the impugned order.

5. Both the parties in support of their respective contentions relied upon the decisions in K.M. Mathew Vs. K.A. Abraham and Others, State of Bihar v. Rajendra A