JUDGMENT S.B. Sanyal, J. The petitioner seek quashing of an order dated 28.6.85 passed by the Judicial Magistrate, Patna, for framing charges under sections 120B, 471 and 467/471 of the Indian Penal Code read with Section 70 of the Indian Partnership Act, and the charge framed (annexure 1). 2. The question that falls for decision is this case is the correct scope of sections 244, 245 and 247 of the Code of Criminal Procedure 1973 which are some what similar to sections 252, 253, 254 and 255 of the old Code. 3. Mr. Rajendra Singh, learned Senior Advocate, made threefold submissions : (a) The reason assigned by the magistrate that stage under section 245 (1) for discharge can never arise till the complainant exhausted examining all the witnesses named in the petition of complaint but all the same the charge could be framed under section 246 of the Code of Criminal Procedure on the evidence so produced under section 244 Cr.P.C. is a wrong legal approach based on complete misconception of law. (b) The formation of the opinion that there is ground for presuming that the accused has committed an offence is vitiated in law as the learned Magistrate has not confined himself only to the evidence referred to in section 244. In short, the opinion is based on irrelevant considerations. (c) Even though Court while framing charge is required to Act, judicially, the impugned order does not manifest as to how the Magistrate has formed the opinion for presuming that all the petitioners have committed the offence. Shortly put, the court has not marshaled materials and considered the evidence against each of the accused persons. 4. Mr. Basudeva Prasad, Senior Advocate, opposed the petition at its very threshold and assailed the submissions of learned counsel for the petitioners. Counsel for the parties agreed that the matter can be disposed of finally at the admission stage itself. Hence I propose to dispose of this petition by hearing both the counsels at length. 5. On 5.4.1980 a petition of complaint was filled by Srimati Renuka Sharma to the effect that the accused persons got signature of her husband in the notice of change in the constitution of the firm ‘Ram Bahadur Thakur and Company’ forged to wrongfully show her husband as having retired from the said partnership on 1st April, 1977, to cause pecuniary less to the complainant. It is further averred that the complainant came to know that the aforesaid forged partnership deed was fraudulently and dishonestly used by the accused persons as a genuine document by filing it before the Registrar of firms. The accused persons conspired to cheat the heirs of the deceased, the husband of the complainant, and thereby committed offences punishable under sections 120B, 467, 468, 471, 426, 420/511, 406/511 and 109 of the Indian Penal Code (Annexure 2). The complainant was examined on solemn affirmation. The case was fixed for enquiry under section 202 of the Code of Criminal Procedure but no oral evidence was adduced by the complainant. On 1.5.80 the learned Chief Judicial Magistrate found a prima facie case for offence under section 471 of the Indian Penal Code only and accordingly he took cognizance against the petitioners and transferred the case to the court of the Sub-divisional Judicial Magistrates. As against the order taking cognizance, the petitioners moved this Court in Criminal miscellaneous No. 4606 of 1980 and this Court by its judgment dated 11.2.1981 refused to quash the order taking cognizance. The judgment of this Court is reported in (Madan v. Renuka). It held that in a complaint case for offence under section 471 of the Indian Penal Code the Magistrate can take cognizance even without the document in original is on record if the Magistrate feels that there is case to be tried. It further held that if the notice under section 63 (1) of the Partnership Act, is alleged to be forged the action of the petitioners exposes them to both civil and criminal liability and the criminal proceeding cannot be stopped because the loss to which the aggrieved party has been put can be recovered or compensated through a civil action. Thereafter on 26.10.83 the transferee court started recording evidence and eight witnesses were produced and examined in support of the complainant. The case of the complainant, however, was closed on 15.4.85. The court thereafter passed the impugned order on 28.6.85 after hearing the complainant and the accused persons on the question of discharge and framing of charge. It may be stated at the outset the complainant did not request the court to examined further witnesses under section 244 Cr.P.C. for the purpose of framing charge. 6. The court thereafter passed the impugned order on 28.6.85 after hearing the complainant and the accused persons on the question of discharge and framing of charge. It may be stated at the outset the complainant did not request the court to examined further witnesses under section 244 Cr.P.C. for the purpose of framing charge. 6. It was submitted before the learned Magistrate on behalf of the complainant that the Court cannot consider the question of discharge under section 245 (1) because the stage for that has not occurred as the complainant has yet to examine other witnesses named in the petition of complainant and produce various other documents filed in company Case No. 6 of 1978 pending in the Patna High Court during trial. Yet the Court is at liberty to frame charge under section 246 of the Code of Criminal Procedure without going into section 245 (1) if the facts and circumstances of the case give rise to a presumption that an offence is committed by the accused persons. It was further submitted before the learned Magistrate that the bar under section 245 (1) that the decision of framing charge should be confined to the evidence recorded under section 244 is inapplicable for consideration under Sec. 246 of the Code of Criminal Procedure viz, the grounds for presuming that the accused have committed an offence. The contention put forward on behalf of the accused, on the other hand, is that the complainant having closed her evidence under section 244 the stage under section 245 (1) automatically arises and only when the ground for presuming that the accused has committed an offence is made out, the charge should be directed to be framed. The Court cannot over-step section 245 for exercise of its jurisdiction under section 246. The stage under section 246 comes only after the stage of section 245. It was also submitted that in forming the opinion under section 246 the Court must exclude the materials which persuaded the Court to take cognizance as also the judgment of the High Court refusing to quash the order taking cognizance since these matters are not within the ambit of express provisions of section 244. 7. It was also submitted that in forming the opinion under section 246 the Court must exclude the materials which persuaded the Court to take cognizance as also the judgment of the High Court refusing to quash the order taking cognizance since these matters are not within the ambit of express provisions of section 244. 7. The learned Magistrate, however, held that since the complainant has not finished all her evidence before charge the stage under section 245 (1) of the Code of Criminal Procedure did not arise, the statement of the complainant on solemn affirmation and the observation of the High Court while considering the quashing of cognizance matter cannot be excluded from consideration since there is no indication about it in section 246. On the contrary, they can be used as corroborative piece of evidence. The learned Magistrate further goes on to say “it would be very surprisable that earlier there was a prima facie case for putting the accused on trial and now charge matter be decided excluding that observation.” Thereafter the learned Magistrate simply names the nine witnesses examined and after referring to the observation of this Court in Criminal Miscellaneous No. 4606 of 1980 directed the charges to be framed. 8. Before I consider the submission of learned counsel, I would like to quote sections 244, 245 and 246 (1) of the Code of Criminal Procedure. “244-(1) When, in any warrant case instituted otherwise than on a police report, 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 prosecution. (8) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” “246-(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.” “246-(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. 9. These sections relate to a procedure in a warrant case instituted on a complaint or on information received from any person other than a police officer. The prefix to sections 244, 245 and 246 is of importance. Section 244 refers to “evidence for prosecution”; section 245 refers to procedure “when accused shall be discharged” and section 246 refers to procedure “where accused is not discharged”. Under section 244 the Court required is to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 244 (2) further is to assist the prosecution by issuing a summons to any of the witnesses directing him to attend or to produce any document or thing. Section 245 (1) expressly states that 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. Under section 245 (2), a Magistrate is even empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. So under the scheme of section 245 the Magistrate has been given the power to discharge even if all the witnesses have not been examined. The words “previous stage refer to before examination of all the prosecution witnesses produced under section 244 by the complainant. Thereafter come the provisions of section 246 which require framing of charge where the accused is not discharged. The words “previous stage refer to before examination of all the prosecution witnesses produced under section 244 by the complainant. Thereafter come the provisions of section 246 which require framing of charge where the accused is not discharged. The opening words of section 246 stage: “If, when such evidence has been taken, or at any previous stage of the case” the Magistrate is of opinion that there is a ground for presuming the commission of the offence by the accused, charge shall be framed. These three sections are integral part of each other laying down the procedure as to when accused should be discharged or charged. Section 246 or for that matter 245 cannot be read in isolation. The words “such evidence” in section 246 to my mind refer to “such evidence as may be produced” under section 244. The Magistrate is, however, empowered under section 246 to frame a charge even at any previous stage as he has the power to discharge at any previous stage of the case. Discharge and charge is the resultant effect of one exercise based on the evidence produced under section 244 of the Code of Criminal Procedure. It is true that during the course of evidence under section 244. If the Magistrate, for reasons to be recorded, seems to think the charge to be groundless, he can discharge. He can also after examining a few of the witnesses produced under section 244 decide to frame the charge. The decision to frame charge would naturally connote the accused cannot be discharged. He has to consider the very same materials both for the accused as well as the complainant since by one common exercise either the accused is discharged or is charged. 10. In the instant case the court below has taken a curious stand by observing; whereas the stage of charge has arisen but the stage for discharge has not occurred since the complainant has not exhausted the list of her witnesses named in the petition of complaint. In my opinion the complainant stops producing evidence i.e. closes the case before framing charge the court is called upon to decide whether the accused could be discharged on the said evidence, if not, it shall frame charge as required under section 246. In my opinion the complainant stops producing evidence i.e. closes the case before framing charge the court is called upon to decide whether the accused could be discharged on the said evidence, if not, it shall frame charge as required under section 246. The view taken by me finds support from the decision reported in (P.Muhamed Abdulla v. State of Kerala where it has been held that under section 244 (1) the Magistrate need take only all evidence as may be produced. What is insisted by section 244 (1) is not all evidence that the complainant wants to produce. In the case of P.N. Gupta Vs. S.P. Agarwal while considering the provisions of section 253 (1) of the old Code the Court held that it is not correct to say that the provisions or discharge can be applied only after all the evidence that the complainant intends to produce in the case has been taken. "What is required for its applicability that all the evidence that may be produced is taken". This Court in the case of Lal Babu Vs. Dualat Ram held that for the exercise of Jurisdiction under section 245 what is relevant is the evidence referred to in section 244 but the court cannot take into consideration the possible defence for the purpose of discharge. Mr. Bajendra Singh is quite justified in his submission that the framing of charge substantially affects a person's liberty and the court must not automatically frame the charge by refusing to consider the question of discharge on a mistaken notion of law that he can not discharge an accused until the complainant completes the examination of the list of witnesses even though not produced under section 244 of the Code of Criminal Procedure. I may here refer to the case of Yashodabai v. B.M. Kamat referred to by Mr. Basudeva Prasad. In this case it was held that the Magistrate is bound to take all the evidence produced on behalf of the complainant and before closing such evidence he must specifically question the complainant if more witnesses are sought to be produced in support of the complaint. Mere failure to produce witnesses on a particular day does not automatically mean that the complainant did not want to examine more witnesses. Mere failure to produce witnesses on a particular day does not automatically mean that the complainant did not want to examine more witnesses. In this context it was observed while considering section 253 (1) of the old Code that the Magistrate cannot pass an order of discharge until he examines all the witnesses produced by the complainant and the complaint cannot be thrown out as groundless unless the evidence of all witnesses is taken and is considered. This case, in my opinion, does not support the view that upon the complainant’s closing her case under section 244 without desiring to examine further witnesses, the court is shorn of its powers to discharge on the basis of the evidence produced if there be more witnesses desired to be examined after charge. If the reason given by the court below is correct, which Mr. Basudeva Prasa strongly hails, the accused can be deprived of his right to be discharged by subterfuge adopted by the complainant. Section 245 (1) in these circumstances would be close. The view taken by the court below in this connection is not only repugnant to the express provisions of law but to justness and fairness. I, therefore, find substance in the argument of Mr. Rajendra Singh that the court below has gone completely haywire in assuming that it has no power to discharge the accused on the basis of the evidence produced under section 244. There has been, therefore, failure of justice in framing charges against the petitioners. 11. I also find force in the argument of learned counsel for the petitioner, that the court below has nowhere marshaled materials and considered evidence against the accused in forming the opinion that there is ground for presuming that they have committed the offence. Beyond referring to the names of the witnesses and the order of High Court refusing to quash the order taking cognizance, nothing has been discussed to show the complicity of the accused. I am left with an impression as the court was harping under wrong notion of law that it has no power of discharge at that stage, it directed to frame the charges. This is an impossible procedure adopted by the court and the order tasks in application of judicial mind in framing the charges each one of the accused. 12. I further find force in Mr. This is an impossible procedure adopted by the court and the order tasks in application of judicial mind in framing the charges each one of the accused. 12. I further find force in Mr. Rajendra Singh’s contention that the opinion formed under section 246 is on consideration of irrelevant materials. The court below was only required to confine itself to the materials collected under section 244 of the Code of Criminal Procedure. It is common knowledge that the allegations in a petition of complaint are not evidence but for moving the court to institute a criminal case. Pleading has to be proved by leading evidence for the purpose of framing charge and of discharge. Relevant materials are those which have been produced in support of the complaint under section 244. 13. I do not find force in the argument of Mr. Basudeva Prasad that since there is no mention of section 244 in section 246, as it is to be found in section 246, the court is not restricted to the evidence produced for exercise of its power under section 246. Section 246 cannot be read in isolation. On the contrary, the result of section 246 is consequential upon "where the accused is not discharged" as shown by its prefix and, therefore, by implication refers to section 245. I have already indicated that all these three section are integral pan of each other and bring forth a scheme of procedure with respect to cases instituted otherwise than on police report. 14. Mr. Basudeva Prasad has referred to many decisions, such as Abhey Dass v. Gurdial Singh, Abdul Karim v. State of Mysore, Chatt Ram v. State of Haryana, King Emperor v. Sagarmal Agarwalla and Hukumchand v. Ratanlal but these cases either relate to constituents of offence under section 471 I.P.C. or on mere doubt the court cannot discharge an accused. There is no quarrel with these principles. In this case I have not at all considered the merit of the complaint. What I have disapproved in my judgment is on-consideration of the question of discharge and non-application of mind to relevant considerations in the formation of the opinion that there is ground for presuming that the accrued have committed an offence. In this case I have not at all considered the merit of the complaint. What I have disapproved in my judgment is on-consideration of the question of discharge and non-application of mind to relevant considerations in the formation of the opinion that there is ground for presuming that the accrued have committed an offence. I am, therefore, of the opinion that the order dated 28.6.85 and the consequential charge dated 6.7.85 should be quashed and the court below is directed to reconsider the matter afresh in the light of the observation made above. 15. I once again reiterate that I have not expressed any opinion as to the cases of the parties in relation to discharge and charge. I have actually not applied my mind to the merit of the respective cases and the evidence of the witnesses examined in the case. It would be open to the court below on reconsideration of the case either to discharge or to frame charge in accordance with law. 16. In the result, the application is allowed and the order dated 28.6.85 is quashed with the directions as indicated above. Application allowed.