A Magistrate cannot discharge an accused under Section 245(2) without recording evidence as mandated by Section 244, making such discharge illegal.

ORDER

Complainant in C.C.No.318/2002 on the file of Judicial First Class Magistrate, Changanassery filed this revision challenging the order of discharge passed under Section 245 (2) of Code of Criminal Procedure . Petitioner filed a complaint alleging that respondents 1 and 2, the two accused, committed offences under Sections 465, 417 and 406 read with Section 34 of Indian Penal Code. Learned Magistrate, after inquiry under Section 202 of , took cognizance of the offences on 23.3.2002. As per order dated 27.12.2003, recording that petitioner/complainant is absent and no representation and first respondent/first accused is present and non bailable warrant on second petitioner/second accused not executed, the accused were discharged under Section 245 (2) of .

CRRP 420/04 2

2. The case of the petitioner is that petitioner and his counsel were absent on that day, as the counsel mistakenly noted the posting date as 29.12.2003 instead of 27.12.2003 and the absence was not wilful and learned Magistrate should not have discharged the accused under Section 245 (2) of Code of Criminal Procedure .

3. Learned counsel appearing for the petitioner and first respondent were heard. Though notice was served on the second respondent, he did not appear.

4. The proceeding paper of the learned Magistrate shows that cognizance was taken on 23.3.2002 and summons was issued to respondents 1 and 2. As they did not appear, non bailable warrant was issued on 13.1.2003 and posted the case to 6.3.2003. On 20.1.2003 first respondent surrendered and filed an application to recall the non bailable warrant. Bail was granted and he was directed to appear on 6.3.2003. As there was no sitting on 6.3.2003, the case was adjourned to 12.5.2003. On 12.5.2003 also there was no sitting and the case CRRP 420/04 3 was adjourned to 13.8.2003. On that day, petitioner and first respondent were present. The non bailable warrant issued to the second accused was returned directing to re-issue non bailable warrant. The case was posted to 25.10.2003. On that day also, petitioner and first respondent were present. The non bailable warrant issued to the second respondent was returned stating that he is bed ridden due to paralysis. The case was posted to 27.12.2003 to issue fresh non bailable warrant to the second accused. On 27.12.2003, learned Magistrate discharged the accused under Section 245 (2) of Code of Criminal procedure.

5. Section 244 of Code of Criminal Procedure provides the procedure to be followed by the Magistrate while trying a warrant trial case instituted otherwise than on a police report. Under sub-section (1), when the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the CRRP 420/04 4 prosecution. Sub-section (2) enables the Magistrate to issue summons to any of its witnesses directing him to attend or to produce any document. Sub- section (1) of Section 245 of provides for discharging an accused after taking all evidence referred to in Section 244 of and the Magistrate finds that no case against the accused has been made out, even if the evidence stands unrebutted. Sub-section (2) provides that sub-section (1) shall not prevent the Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by the Magistrate and he considers the charge to be groundless.

6. Though petitioner was present on 13.8.2003 and 25.1.2003, his evidence was not recorded as provided under Section 244 of Code of Criminal Procedure , evidently, because the non bailable warrant against the second accused was not executed and second accused did not appear. Hence, even if petitioner was present on 27.12.2003, learned CRRP 420/04 5 Magistrate could not have recorded the evidence and proceeded as provided under Section 244 of . In such circumstances, when petitioner failed to appear on one posting day, learned Magistrate was not j