Petitioners who are accused Nos. 1 and 2 have called

in question the validity of the order dated 16.04.2022

passed by the XLII Additional Chief Metropolitan Magistrate,

Bangalore, whereby the application for discharge filed by

petitioners was dismissed.

2.

Without adverting to the facts of the case, the

legal contentions raised by Sri. C.V. Nagesh, learned Senior

counsel appearing for the petitioners is that the present

case is a case on the basis of a complaint wherein after

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notice under Section 204 of Cr.P.C. and evidence is led in, it

is only at the stage of Section 245 of Cr.P.C. the accused

can seek for discharge. It is pointed out that the admitted

procedure is that the evidence for the prosecution could be

led in terms of Chapter-XIX after notice to the accused and

subsequent to which stage of recording of evidence under

Section 244, accused can seek for discharge in terms of

Section 245 of Cr.P.C. It is further submitted that the test

that is required to be answered is in terms of Section

245(1) "if unrebutted, would warrant his conviction". It is

further submitted that in terms of Section 246, when the

accused is not discharged and the Magistrate deems it fit to

proceed, it is required that the Magistrate must be of the

opinion that there is ground for presuming that the accused

has committed an offence triable under this Chapter.

Accordingly, it is submitted that the observations made at

Paragraph 10 of the impugned order are contrary to the test

under Section 245 and on the basis of such terms as

reflected in paragraph 10 of the impugned order, the trial

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Judge has grossly erred in dismissing the application for

discharge.

3.

On the other hand, respondent - Sri. Abraham

T.J., appearing as party-in-person submits that reference to

Section 227 of Cr.P.C. regarding discharge of accused would

not make much difference and even otherwise there is no

failure of justice and accordingly the order, which otherwise

on substantive merits is correct, ought not to be set aside

on the technical defects as pointed out.

4.

Heard both sides.

5.

It must be noted that admittedly it is the case on

the basis of a complaint. It is the settled position that in

case of a complaint case, under Chapter XIX-B, only after

evidence for prosecution has been led in in terms of Section

244, question of accused seeking for discharge would arise

while disposing of an application seeking discharge in terms

of Section 245 of Cr.P.C. A plain statutory test as referred

to under Section 245(1) would be that the evidence referred

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to in Section 244 which if unrebutted would warrant his

conviction, then the Magistrate shall discharge him.

6.

Paragraph 10 of the impugned order which

reflects the manner in which the matter has been dealt with

by the trial Court, is extracted as hereunder:

"I have gone through all the judgments in detail.

In all the decision, the Hon'ble Apex Court has

dealt with the scope and limitations of the Courts

when dealing with section 227 of Cr.P.C., which

says about discharge of the accused. The

Hon'ble

Apex

Court

has

held

that

when

exercising the power under section 227 of

Cr.P.C., marshalling and appreciation of evidence

is not in the domain of the Court. It is also

observed that charge can be framed also on the

basis of strong suspicion. Here, in the case on

hand also, the evidence on record both oral and

documentary

placed

by

the

complainant

demonstrates that the case for trial is made out.

The only question, at this stage, before this

Court is whether there are sufficient grounds to

frame charge and proceed in the case as per

law. Hon'ble Apex Court in the decisions referred

above has said that the Judge should not make a

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roving enquiry into the pros and cons of the

matter and weigh the evidence as if he was

conducting a trial and while considering the

question

of

framing charges,

he

has

the

undoubted power to sift and weigh the evidence

for the limited purpose of finding out whether or

not a prima facie case against the