In warrant trials not based on police reports, evidence must be led under Section 244 before considering discharge under Section 245 Cr.P.C.

JUDGMENT :

Raj Beer Singh, J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. This application under Section 482 Cr.P.C. has been preferred against the order dated 14.05.2024, passed by learned A.C.J.M., Court No.10, Azamgarh, in Complaint Case No. 11 of 2022 (Sarita Devi Vs. Asha Devi), under Section 420 I.P.C., Police Station- Deogaon, District- Azamgarh, whereby the application filed by the applicant seeking discharge has been rejected.

3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus liable to be set aside. It is a complaint case and in complaint case application for discharge filed on behalf of accused has to be decided under Section 245 Cr.P.C., whereas the learned trial court has decided the discharge application of the applicant under Section 239 Cr.P.C. It is further submitted that the dispute between the parties is purely civil in nature and no prima-facie case under Section 420 IPC is made out and that applicant was liable to be discharged but learned Magistrate has not considered facts and law in correct perspective and committed error by rejecting that application under Section 239 Cr.P.C. Learned counsel for the applicant has referred case of Ajoy Kumar Ghose Vs. State of Jharkhand & Another, 2009 0 Supreme (SC) 497 and Sunil Mehta & Another Vs. State of Gujarat & Another, 2013 0 Supreme (SC) 177 and submitted that impugned order is liable to be set aside.

4. Learned counsel for the opposite party no.2 submitted that earlier the applicant has filed an application under Section 482 Cr.P.C. before this Court for quashing of proceedings of the aforesaid case, wherein the said prayer was refused and the applicant was given liberty to move discharge application before the trial Court concerned. The applicant has filed discharge application and in that application there was no such averment as to under which provision the said application is being filed. That application has been decided by the learned trial Court by a reasoned order, considering entire facts of the matter. It is further submitted that merely because in the impugned order the trial Court has mentioned section 239 Cr.P.C., it would not affect the merits of the matter as nomenclature of application is not material. It was submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. In case of Ajoy Kumar Ghose (supra), the Hon'ble Apex Court has considered provisions of Sections 239 as well as 244 and 245 Cr.P.C. and held as under:

"13. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-Section (3) of Section 161 Cr.P.C. of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he