JUDGMENT S. Ali Ahmad, J. The petitioner filed a complaint against the members of the opposite party. Cognizance was taken and the accused persons were put on trial. Two witnesses were examined before charges were framed. At that stage an application was filed by the accused persons praying to be discharged on the grounds mentioned therein. The learned Magistrate, by the impugned order, discharged the members of the opposite party holding that the petitioner has not been able to satisfy the legal requirements of section 245 (1) of the Code of Criminal Procedure. 2. I do not wish to express any opinion on the merits of the case but, all the same, it has to be laid that the order discharging the accused persons is erroneous. Section 245 providos that upon taking evidence referred to in section 244, if the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant his conviction, then the Magistrate was discharge the accused persons. In this case I find that the learned Magistrate has taken into consideration the possible defence of the accused persons which at the stage of section 245 (1), is an extraneous matter. The learned Magistrate had to examine if the evidence of the two witnesses, who were examined, if unrebutted, made out a case against the accused persons. If it did not, then the accused had to be discharged. But in case the evidence so recorded made out a case against the accused persons, then charges had to be framed. This the learned Magistrate has missed. The impugned order of the learned Magistrate cannot, therefore, be sustained. 3. The application is allowed, the impugned order dated 16 August, 1979, is set aside and the case is remitted back to the learned Magistrate to examine it in its correct perspective and therefore pass appropriate orders in accordance with law. Application allowed.