Hon’ble Shri Kant Tripathi, J.—Heard Mr. Nandit Srivastava and Mr. Imran Ullah for the petitioner and learned AGA for the respondent No. 1 and perused the record.

2. This petition under Section 482 of the Code of Criminal Procedure (in short ‘the Code’) has been filed for quashing the Magistrate’s order dated 9.4.2010 (Annexure 10) and revisional Court’s order dated 17.1.2011 (Annexure 11).

3. Mr. Nandit Srivastava submitted that in complaint case No. 3976 of 2006, S.K. Agrawal v. Manoj Dalmia, the petitioner, who is accused, moved application for discharge under Section 245 (2) of the Code on the ground that the charge levelled against the petitioner in the complaint was groundless. The learned Additional Chief Judicial Magistrate, Court No. 6, Jhansi rejected the discharge application vide his order dated 9.4.2010 on the ground that the application for discharge without appearance of the petitioner in the Court was not maintainable specially when he had not been exempted under Section 205 of the Code from appearing in the Court.

4. The petitioner, thereafter, preferred criminal revision No. 183 of 2010 in the Court of Sessions Judge, Jhansi, which was heard and disposed of by Additional Sessions Judge, Court No. 4, Jhansi vide his order dated 17.1.2011. The learned Additional Sessions Judge was also of the same view.

5. The aforesaid orders have been impugned by this petition under Section 482 of the Code.

6. Mr. Nandit Srivastava submitted that the prayer for discharge under Section 245 (2) of the Code was maintainable even before appearance of the accused in the Court. Mr. Srivastava placed reliance on Ajoy Kumar Ghose v. State of Jharkhand and another, (2010) 1 SCC (Crl) 1301, in support of his submission. Mr. Srivastava next submitted that the format of summons prescribed in the Code clearly permits the accused either to appear personally or through counsel, therefore, the learned Courts below were not justified in requiring the petitioner to appear in person and his application for discharge moved through counsel was maintainable.

7. According to Mr. Nandit Srivastava, the Apex Court, in the aforesaid case of Ajoy Kumar Ghose, has interpreted the meaning of the expression “at any previous stage of the case” occurring in Section 245 (2) of the Code and has opined that the discharge prayer on behalf of the accused under Section 245 (2) of the Code is maintainable even before appearance of the accused. Therefore, it seems to be just and expedient to examine as to how the Apex Court interpreted the meaning of the expression “at any previous stage of the case” occurring in Section 245 (2) of the Code. The observations of the Apex Court made in paras 22 to 37 of the judgment are relevant, which are reproduced as follows:

“22. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.

23. Essentially, the applicable Sections are Sections 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr.P.C., on the ground that the charge was groundless.

24. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate pr