Point of law : Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless.

JUDGMENT :

1. Heard Sri Akash Dikshit, learned counsel for the petitioner, Sri Aniruddh Kumar Singh, learned AGA-I for the State and Sri Ajmal Khan, learned counsel for opposite party no.2.

2. By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed for quashing the impugned order dated 24.12.2019 (Annexure No.1) passed by the learned Civil Judge (S.D.)/ A.C.J.M., Ambedkar Nagar rejecting the discharge application moved in Complaint Case No.5661 of 2018, under Section 420 IPC, Police Station Ahirauli, District Ambedkar Nagar and the order dated 25.10.2021 passed by the revisional court i.e. Sessions Judge, Ambedkar Nagar dismissing the revision of the petitioner.

3. On the request of learned counsel for the parties, the present matter is being decided finally at the admission stage.

4. While assailing the impugned order dated 24.12.2019 passed by the Civil Judge (S.D.)/ A.C.J.M., Ambedkar Nagar, learned counsel for the petitioner has submitted that the learned court below has rejected the application for discharge of the petitioner on the point that since the evidence under Section 244 Cr.P.C. is yet to come and the accused/ petitioner has not appeared and obtained bail, therefore, such application for discharge is rejected. Learned counsel for the petitioner has further submitted that in the aforesaid judgment, reference of the judgment of the Apex Court in re; Adalat Prasad vs. Rooplal Jindal & Others, (2004) 7 SCC 338, has been given by the learned Magistrate Court observing that once the Magistrate takes cognizance in any matter/ issue, he cannot recall or review such order. The impugned order further says that the learned Magistrate Court has already taken cognizance on 23.3.2019 summoning the petitioner to try the issue under Section 420 IPC and the revisional court while rejecting the revision of the petitioner has upheld the order of the Magistrate dated 24.12.2019.

5. Learned counsel for the petitioner has submitted that when the aforesaid rejection of discharge was assailed before the revisional court, learned revisional court vide order dated 25.10.2021 has rejected the revision of the petitioner upholding the order dated 24.12.2019 passed by the court of Magistrate.

6. Sri Akash Dikshit, learned counsel for the petitioner has submitted with vehemence that by means of discharge application, the petitioner had not prayed that the summoning order be recalled or reviewed, therefore, the dictum of the Hon'ble Apex Court in re; Adalat Prasad (supra) would not be attracted in the present case.

7. At this stage, learned counsel for the petitioner has drawn attention of this Court towards Section 245 Cr.P.C., which is being reproduced herein below:-

"245. 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."

8. Learned counsel for the petitioner has drawn attention of this Court towards Sub Section (2) of Section 245 Cr.P.C., which categorically provides that 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. So as to strengthen the aforesaid submission, Sri Dikshit has drawn attention of this Court towards the decision of the Apex Court in re; Ajoy Kumar Ghose vs. State of Jharkhand and another, (2009) 14 SCC 115, referring paras 25, 36 & 37 thereof. For the convenience those paragraphs are being reproduced herein below:-

"25. The situation under Section 245(2) CrPC is, however, different. There, under sub-section (2), the Mag