The provisions of Sections 244 and 245 of the CrPC are mandatory and impose an obligation on the Magistrate to proceed with the hearing and record all the evidence produced by the prosecution before passing an order of discharge.

( 1 ) BY this revision under Section 397/401 of the Code of Criminal Procedure, 1974, (for short the Code), the order dated 27/8/1984 and the order dated 6/9/1984, purporting to be orders of discharge passed under Section 245 of the Code, are sought to be quashed.

( 2 ) THE case has got a chequered history. One Devi Shankar Sharma, the District Harijan and Social Welfare Officer, Meerut, filed a written report against Rajendra Kumar Tyagi, opposite party No. 1, dated 18/20. 12. 1976 for the offence under Sections 409/420/468, I. P. C. The police of Baghpat, Distt. Meerut, in Crime No. 248/76, investigated the matter and submitted a final report. But one Pratap Singh Shishodia, the present applicant, filed a complaint before the Chief Judicial Magistrate, stating that the final report has incorrectly been submitted. On that complaint the chief Judicial Magistrate rejected the final report by order dated 20-11-1978 and passed an order for issuing process against opposite party No. 2 Rajendra Kumar Tyagi. Against the order dated 20-11-1978 of issuing process, Rajendra Kumar Tyagi filed a revision before the Sessions Judge Meerut which was dismissed by the VII Addi. Sessions Judge, Meerut, by his judgment an order dated 6- 2-1979. It was further directed in that order that if the offence was going unpunished, then after taking the statement of witnesses, if there appears sufficient evidence, the process may be issued. On that the statement of Pratap Singh Shishodia and his witnesses was recorded and on 12-9-1979 the process was issued against opposite party No. 2 for the offence under Sections 409/420/468, I. P. C. Against the order dated 12-9-1979 another revision was filed by Rajendra Kumar Tyagi (Revision No. 313 of 1979 ). This revision was also dismissed by the VI Additional District and Sessions Judge, Meerut, by the order dated 18-12-1979 and the order dated 12-9-1979 issuing process against Rajendra Kumar Tyagi was maintained. There after the statement of witnesses, i. e. P. W. 1 Devi Shankar Sharma, P. W. 2 Pratap Singh Shishodia and P. W. 3 Gopi Chand were recorded under Sections 244 of the Code. It appears that without waiting for such evidence as could have been produced in support of the prosecution, Sri ic. Sharma, Munsif Magistrate I, Baghpat, adopted a very unique procedure totally inconsistent with the provisions of Sections 244 and 245 of the Code and in his detailed impugned order dated 27/8/1984, expressed doubt in a numher of Paragraphs as to whether the offence under Section 409/420/468 was made out and whether the accused, opposite party No. 2 Rajendra Kumar Tyagi was entitled to be discharged under Section 245 of the Code. But in the last but one Paragraph of his order dt. 27/8/1984 he recorded a finding that as the Enquiry Officer (in the departmental proceedings) was also appointed to enquire into the allegations of misappropriation of the public fund by opposite party No. 2 Rajendra Kumar Tyagi, it appears that he (opposite party No. 2) has misused the public fund and hence there was more possibility of some offence being made out against him. In the last Paragraph of his order he stated that a list of 45 witnesses has been given by the complainant, and if he wants that this complaint may proceed in that event within ten days he must furnish a list of these witnesses whom he wants to produce to prove the guilt against opposite party No. 2.

( 3 ) AS in the impugned order dated 27-8-1984 in so many Paragraphs the learned Munsif has expressed doubt as to whether the offence under sections 409/420/468, I. P. C. was made out and whether the opposite party no. 2 was entitled to be discharged under Section 245 of the Code, hence an application dated 6-9-1984 was made by the complainant that he wants to file a revision before the Sessions Judge against the order dated 27-8-1984 and hence three months time may be allowed. That application was, however, rejected and opposite party No. 2 Rajendra Ku