M. R. MALLICK, J. ( 1 ) THIS revision petition is directed against the order dt/- 26-8-86 passed by the learned Sub-Divisional Judicial Magistrate, Malda which has been affirmed by the learned Sessions Judge, Malda in Criminal Revision No. 20 of 1985. ( 2 ) THE facts of the case are briefly as follows :- ( 3 ) THE present petitioner filed a petition of complaint before the learned Sub-Divisional Judicial Magistrate, Malda Case No. 194-C of 1983. After the process was issued against the accused opposite party, the case was fixed for evidence on 3-7-84. The complainant did not however produce witnesses on that date as well as on subsequent dates. On 30-4-85, the learned S. D. J. M. allowing the application for adjoumment fixed 26-8-85 for evidence and directed that if the complainant failed to examine the witnesses on that day, the accused persons would be discharged. On 26-8-85, again, a petition was filed on behalf of the complainant alleging that he could not bring witnesses because of incessant rain and adjournment was sought for. Learned Magistrate rejected the application and on holding that the petitioner was not producing the witnesses as he had no witness to prove his case and therefore the charge is groundless, he discharged the accused. ( 4 ) BEING aggrieved, the petitioner moved the learned Sessions Judge, Malda unsuccessful. The petitioner has now moved this Court under S. 482 of the Code of Criminal Procedure. It is submitted that the impugned order is illegal and has occasioned a failure of justice because there can be no discharge under S. 245 (2 ) of Cr. P. C. only on the ground that the petitioner failed to produce the witnesses. It is also submitted that the complainant was present and the learned Magistrate did not take any steps to examine the complainant on oath before passing any order, even. if he did not wish to grant any adjournment to the complainant to produce witnesses. It is, therefore, submitted that in view of the illegality committed, there has been a failure of justice and the impugned order should be interfered with by invoking the inherent power. ( 5 ) THE revision petition is opposed both by the opposite party No. I and the State. ( 6 ) I have carefully perused the order passed by the Ld. ( 5 ) THE revision petition is opposed both by the opposite party No. I and the State. ( 6 ) I have carefully perused the order passed by the Ld. Sub-Divisional Judicial Magistrate and that of the learned Sessions Judge in revision. It is true the petitioner was not very diligent in proceeding with the case and took several adjournments to produce the witnesses. But there is nothing to indicate in sub-sec. (2) of S. 245 of the Code that only on that ground, the Ld. Magistrate was competent to discharge the accused on the ground that the charge was groundless. The fact that the charge is groundless is to be considered in the light of the materials appearing before the learned Magistrate subsequent to the date on which the process was issued. A single Judge of Allahabad High Court in the decision reported in 1977 Cri LJ NOC 61 Harjeet Singh v. M. M. Gupta has observed that having issued the process and having recorded his initial satisfaction before ' issuing process that prima facie case existed, there should be something appearing At the stage of sub-sec. (2) of S. 245 of the Code to enable the Magistrate to discharge' the accused. It is also observed therein that sub-sec. (2) of S. 245 does not clothe the Magistrate with an arbitrary power of the discharge and there must be grounds and materials on record to come to the conclusion that no offence is made out. It has also been observed that where the complaint does in fact disclose a prima facie case, the Ld. Magistrate cannot hold that the charge is groundless unless the complainant has been heard. In this particular case, there is nothing on record to show that the Ld. Magistrate heard the complainant as is provided under S. 244 of the Code. Moreover, when the complainant was present, it was incumbent upon the Ld. Magistrate to examine the complainant, but even though the complainant was present, he did not examine the complainant on oath. If after doing so, the Ld. Magistrate could have held that there was no case to proceed against the accused, he could very well have discharged the accused. But it was not a. case fit to invoke the sub-sec. Magistrate to examine the complainant, but even though the complainant was present, he did not examine the complainant on oath. If after doing so, the Ld. Magistrate could have held that there was no case to proceed against the accused, he could very well have discharged the accused. But it was not a. case fit to invoke the sub-sec. (2) of S. 245 by the learned Magistrate, which according to the Supreme Court is an exception rather than the general rule R. B. Mithani v. State of Maharashtra, 1979 Cri LJ 41 : ( AIR 1979 SC 94 ). ( 7 ) IN view of the above, I am convinced that the learned 'magistrate discharged the accused illegally and because of such illegal discharge, there has been a failure of justice. The impugned order is set aside and the revision petition is allowed and the learned Sub-Divisional Judicial Magistrate, Malda is directed to proceed with the case in accordance with law. ( 8 ) LET a copy of this order be sent to the Ld. Sub-Divisional Judicial Magistrate, Malda as quickly as possible. Petition allowed.