PATEL, J. ( 1 ) CRIMINAL Revision Application is filed by original complainant to set aside the order passed by the Chief Judicial Magistrate, Nadiad in Criminal case No. 3562 of 1987 on 21-12-1988 and to direct him to proceed further according to law. ( 2 ) THE petitioner is the original complainant of Criminal Case No. 3562 of 1987 which was filed in the Court of Chief Judicial Magistrate, Nadiad against the respondents Nos. 1 to 5 (hereinafter referred to as the accused. Said complaint was filed for the offences punishable under Secs. 406, 114 and 34 of I. P. C. ( 3 ) THE complainant was examined by Chief Judicial Magistrate Shri M. R. Thakar before taking cognizance, and as in the opinion of the Magistrate taking cognizance of offence there was sufficient ground for proceeding further, the magistrate issued summons for the offences punishable under Secs. 420 and 114 of I. P. C. and also for the offences punishable under Secs. 406 and 114 of i. P. C. After issuance of summons, the Magistrate was required to follow the procedure laid down in Chapter XIX of Code of Criminal Procedure, i. e. . Trial of Warrant Cases by Magistrate. This case being a case instituted otherwise than on a Police report, Magistrate was required to follow the procedure laid down in Sec. 244 and onwards. Section 244 reads as under :" (1) When, in any warrent 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. (2) 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". In the instant case, it appears that succeeding Magistrate without recording any evidence acquitted the accused persons taking shelter of Sec. 245 (2) of criminal Procedure Code. Section 245 reads as under :" (1) If upon taking all the evidence referred to in Sec. 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. Section 245 reads as under :" (1) If upon taking all the evidence referred to in Sec. 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. "being aggrieved by the aforesaid order passed by the Chief Judicial magistrate, Nadiad on 21-12-1988, present petition is preferred. In a private complaint, Magistrate has to examine the complainant as per Sec. 200 of Cr. P. C. If after considering statement on oath of the complainant, if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he can dismiss the complaint, of course, by giving reasons in brief. Now if the magistrate is of the opinion while taking cognizance of an offence that there is sufficient ground for proceeding, then he has to issue process against the accused. Thereafter ordinarily it is not permissible to the Magistrate to switch over to a previous stage. What law requires is that he has to record evidence as contemplated in Sec. 244 of Criminal Procedure Code. As per section, magistrate shall hear the prosecution and shall take all such evidence as may be produced in support of the prosecution. Therefore, it becomes bounded duty of the Magistrate to record evidence which may be produced by the complainant. Section 245 of the Code contemplates that after taking of the evidence referred to Sec. 244, if the Magistrate considers that no case against accused is made out, which warrants his conviction, the Magistrate shall discharge him for which he shall also record his reasons. Section 245 comes after the evidence is recorded but Sec. 245 (2) provides that at any previous stage of the case, if for reasons to be recorded by such Magistrate, if he considers charge to be groundless, he may discharge accused. In the instant case, the Magistrate who examined the complainant on oath as per Sec. 200, was of the opinion that there is sufficient ground for the Magistrate for taking cognizance and issuing process. In the instant case, the Magistrate who examined the complainant on oath as per Sec. 200, was of the opinion that there is sufficient ground for the Magistrate for taking cognizance and issuing process. The successor in office with the aid of Sec. 245 (2) on the same material came to the conclusion that no offence is made out. He has further observed that even after the evidence is recorded in the case, there is nothing to frame the charge. It is surprising that at that stage, how the Magistrate could have come to that conclusion. The Magistrate has further observed that instead of filing the; suit, the complainant has approached the Criminal Court. The Magistrate has reviewed orders passed by his predecessor without any other evidence. Sections 244 and 245 are to be read together and harmonious construction should be there. If there is nothing on the record, it was not open for the Magistrate to pass such an order. Had there been some relevant material on record, there could be justification. Under Sec. 244 the Magistrate has to take evidence in support of the prosecution case. It is in background of such evidence that he can discharge accused under sub-sec. (1) of Sec. 245, if no offence is found to be made out. It is in this context that sub-sec. (2) of Sec. 245 has been added. Therefore, the Magistrate must have some material before him for discharging accused under sub-sec. (2) of Sec. 245. In the instant case, there was no material before him and, therefore, order requires to be quashed and set aside. However if accused on appearing points out to the Court that the cognizance is taken without valid and proper sanction or some irregularities which may be pointed out to the Court indicating that complaint is without authority etc. , then the Court may be justified in such circumstances to discharge the accused or to drop the proceedings. When the process is issued, it is only issued after satisfaction of the Magistrate that in his opinion, there is sufficient ground for proceeding. It follows that he was satisfied at the stage of issuance of process that the complaint was not groundless. When the process is issued, it is only issued after satisfaction of the Magistrate that in his opinion, there is sufficient ground for proceeding. It follows that he was satisfied at the stage of issuance of process that the complaint was not groundless. Consequently, it follows that some kind of additional evidence would be required to make him change his prior opinion that there were grounds for issuing the process and that the complaint was not groundless. In this background, Mr. Patel, learned Advocate has relied upon the decision of Bombay High Court in the case of Luis De Piedade Lobo v. Mahadev Vishwanath Parulekar and Am. , reported in 1984 0 Crlj 513 . In that case, learned Magistrate did not give any chance to the complainant to lead evidence in support of his case and straighway discharged the accused under Sec. 245 (2) of Criminal Procedure code. Mr. Patel learned Advocate has relied upon and submitted that "if the magistrate himself was of the opinion that there were grounds for proceeding, it follows that he was satisfied at the stage of issuing process that the complain was not groundless. Consequently, it follows also that some kind of additional evidence would be required to make him change his prior opinion that there were grounds for issuing the process and that the complaint was not groundless. " it was submitted that in view of Sec. 245 (2), the Magistrate need to wait to decide the matter till the entire evidence is recorded. In a given case, it is alleged that accused obtained goods on giving assurance or after inducing the complainant accused obtained the goods on credit. The Magistrate after verification issued process against accused for an offence punishable under sec. 420 of I P. Code. In such a case evidence led by prosecution through its first witness discloses that between the accused and the complainant, there were number of transactions in past and as usual goods were supplied only on credit. Considering this type of evidence in a given case, Magistrate may discharge accused and may not wait for any other evidence. It is the nature and quality of evidence which may call upon the Magistrate to exercise powers under Sec. 245 (2) of the Code. ( 4 ) MR. Considering this type of evidence in a given case, Magistrate may discharge accused and may not wait for any other evidence. It is the nature and quality of evidence which may call upon the Magistrate to exercise powers under Sec. 245 (2) of the Code. ( 4 ) MR. Patel drew my attention to the reported judgment of this Court in the case of Pravinkumar v. Jyotindra M. Bhatt and Anr. , reported in 1989 (1) GLR 523 . That was the case where the Court issued the process and pursuant thereto the accused appeared before the Court. Neither on that day, nor on any subsequent thereto, the learned Magistrate took any evidence and straightway framed charge on 6-8-1988. It is this order which was challenged before this Court. Sectoins 244, 245 and 246 of Cr. P. C. were considered by the Court. Considering the object of the legislature, the Court interpreted that the interest of prosecution is also required to be protected as well as the right of the accused was also required to be protected and for balancing interest of the prosecution and the accused, the Court has observed in para 7 of the said judgment as under :"in my opinion, there is much substance in the contention raised on behalf of the petitioner. The words, "at any previous stage of the case" though themselves are capable of wide interpretation, in the context in which they are used, they must be so interpreted as to make the scheme of Sees. 244, 245 and 246 consistent. It stands to reason that these words and similar words used in Sec. 245 should be given the same meaning. If the words, "at any previous stage of the case" occurring in Sees. 245 and 246 of the Code are interpreted to mean the stage where the accused appears before the Court and no evidence as contemplated by Sec. 244 is recorded, then that would induce the prosecution not to produce any evidence in all the cases before the charge is framed. That would also enable the accused to urge that he should be discharged even at that stage and no charge should be framed against him. That could not have been the object of the legislature because following such a procedure would be prejudicial to both the prosecution and the accused. That would also enable the accused to urge that he should be discharged even at that stage and no charge should be framed against him. That could not have been the object of the legislature because following such a procedure would be prejudicial to both the prosecution and the accused. The words, "at any previous stage of the case" occurring in Sec. 246 therefore should be interpreted to mean the stage before the recording of the evidence is complete, but not a stage previous to the position contemplated by sub-sec. (1) of Sec. 245. It would mean she stage when some evidence produced by the prosecution has been recorded. Such an interpretation would be in consonance with the object of these provisions, viz. , balancing the interests of the prosecution and the accused. The interest of the prosecution which is required to be protected, is that the Magistrate should not be permitted to discharge the accused without giving the prosecution an opportunity of producing such evidence as it may think it in support of the case. The interest of the accused which is required to be protected is that he should not be made to undergo a trial when evidence led against him is not found sufficient. In view of this interpretation, which ) have put upon the words, "at any previous stage of the case", it will have to be held that the magistrate cannot frame a charge as long as the evidence led by the prosecution is found sufficient by him for the purpose of framing a charge. "in the aforesaid case, the Magistrate framed the charge straightway without recording any evidence and in the instant case, the Magistrate passed the order of acquittal without recording any evidence. As referred to earlier, for want of sanction, or a complaint not being presented by a competent persons, 01 for such other irregularities, the Court may discharge the accused and that is on some additional material placed before the Court, but if a valid prosecution is launched by the competent person and complaint suffers from no infirmity of any natures whatsoever, it would not be open for the Magistrate to pass an order under Sec. 245 (2) of Cr. P. Code, in absence of any material before the Court and the Court will not be justified in discharging the accused without following proper procedure. P. Code, in absence of any material before the Court and the Court will not be justified in discharging the accused without following proper procedure. ( 5 ) DURING the argument, it was submitted that Magistrate has passed an order relying on judgment of this Court in case of New India Assurance co. Ltd. and Ors. v. State and Anr. , reported in 1985 (2) GLR 691 . The Court held in that case to the effect that Sec. 245 (2) of the Code give sample jurisdiction to the Magistrate to discharge the accused. There cannot be dispute about the same. But the question is if there is no material placed on record, is it open for Magistrate to discharge the accused ? From the text of the judgment, it appears that allegations against the petitioner in that case were made in a private complaint filed before the Magistrate to the effect that accused have committed offence punishable under Sees. 406, 420 and 114 of Indian Penal Code. There is nothing in the judgment to show that any material was placed before the Court or not. It appears from the judgment that Magistrate discharged the accused and that order was challenged by preferring revision application before the Court of Sessions. Additional Sessions Judge arrived at a conclusion that once the process was issued, the Court has no jurisdiction to drop the proceedings. Additional sessions Judge also observed that it would be open for the petitioner to file petition for quashing and setting aside the order of process issued by the Magistrate. That order passed by the Court of Sessions was challenged before this Court, inter alia, requesting that it is clear from the order passed by the Magistrate that he has discharged the accused and he has given good sufficient reasons for discharging them. Thus it is clear that in the circumstances of the case, the Court has taken the view. Relying on this judgment it was argued that the Magistrate is empowered to discharge accused at any stage. It may be noted that some additional material is required to be placed before the Court. The Court considering that material may discharge the accused. Supreme Court had an occasion to consider the provisions similar to provisions involved in this matter in a reported decision of Cricket Association of West Bengal and Ors. It may be noted that some additional material is required to be placed before the Court. The Court considering that material may discharge the accused. Supreme Court had an occasion to consider the provisions similar to provisions involved in this matter in a reported decision of Cricket Association of West Bengal and Ors. v. State of West bengal and Ors; reported in AIR 1971 SC 1925 . In that case the allegations in the complaint were made to the effect that there was accommodation for about 60,000 spectators while as a matter of fact nearly a lakh of spectators were admitted into an enclosure. There was grossly inadequate arrangement and it tended to endanger the personal safety of the spectators. All the stands were jam-packed. People with tickets were being pushed into different enclosures, with the result that the spectators within the enclosure started jumping over the fence and occupied the space between the lines of the field. The Police, was unable to control the rush and confusion caused by the behaviour of the crowd. Police suddenly started a lathicharge followed by bursting of teargas shells which resulted in causing injuries to various persons. This infuriated the crowd which retaliated by the acts of person. In these situation, it was alleged that as a matter of fact, it was nothing also but rash and negligent act of the accused persons. Complaint was filed against 33 persons including the President, vice-President and other office bearers and Members of the Working committee of the Cricket Association of West Bengal. Complaint was filed for offences punishable under Sees. 337 and 338 read with Sec. 114 of the Penal Code. On these facts. Chief Presidency Magistrate being prima facie satisfied, issued summons to the accused. The matter was taken to the High Court by filing a revision application which was ultimately dismissed. It was observed by the High Court that statements made in the petition of the complaint do not constitute the essential elements to make out offence under Sees. 337 and 338 of the Indian Penal Code. However it appears that prosecution was given a chance to establish, if they can, that an offence under Sec. 336 of the Indian Penal Code has been committed by the accused. After disposal of the Criminal Revision Application filed in the High court, Chief Presidency Magistrate proceeded with the complaint. 337 and 338 of the Indian Penal Code. However it appears that prosecution was given a chance to establish, if they can, that an offence under Sec. 336 of the Indian Penal Code has been committed by the accused. After disposal of the Criminal Revision Application filed in the High court, Chief Presidency Magistrate proceeded with the complaint. On 2/03/1967, the complainant himself filed an application before the Court for leave to withdraw the complaint against some of the accused by giving reasons and the Chief Presidency Magistrate discharged them under Sec. 253 (2) of the criminal Procedure Code, 1898. On 31/05/1967, another application was submitted before the Chief Presidency Magistrate seeking permission to withdraw the complaint against the rest of the accused, inter alia, praying that he had filed the complaint to voice grievances of bona fide spectators; it was also further mentioned in the application that an inquiry commission called "sen Commission" was a already inquiring into the events connected with the incident that took place and in order to find out the persons responsible for the same complainant disclosed that he does not intend to continue with the complaint instituted by him. However complaint against rest of the accused came to be dismissed on the ground that process fee for issuance of summons was not paid; the complainant, though called upon was absent application was filed for withdrawal of the complaint; however the same could not be granted as observed by the chief Magistrate, the case being warrant trial; complainant was not serious in proceeding with the complaint and he had committed several defaults. For all these reasons, the trial Court discharged the remaining accused under Sec. 253 (2) of the Criminal Procedure Code, 1898. Thus, by two different orders, the accused persons were discharged. Against this order. High Court, in exercise of its powers, issued notice to the accused persons. The High Court directed that the proceedings be continued only against 14 accused. It was held that discharge of some of the accused on the ground that process for issuance of summons being not paid, is not proper ground as there is no provision under relevant rules for payment of any process for issuance of summons in respect of cognizable offence, whether the case is instituted on complaint or not. It was held that discharge of some of the accused on the ground that process for issuance of summons being not paid, is not proper ground as there is no provision under relevant rules for payment of any process for issuance of summons in respect of cognizable offence, whether the case is instituted on complaint or not. It was further held that the order of discharging accused under Sec. 253 (2) of Criminal procedure Code, 1898 is not justified. The decision rendered by the High Court was challenged before the Supreme Court. The Supreme Court in para 14 has observed as under :"assuming that the Division Bench is right in holding that the discharge under Sec. 204 (3), Criminal Procedure Code is not justified, we will proceed on the basis that the said order is one of discharge under Sec. 2530 ). We have already referred earlier to the reasons given by the complainant in his application seeking permission to withdraw the complaint, as well as to the reasons given by the Magistrate for discharging the accused. "there is no controversy that at the material time, the Sen Commission was inquiring into the identical matter which was the subject of the criminal complaint. Under those circumstances, it cannot be said that the discharge of the accused by the Magistrate is either illegal or not justified. "thus, it is very clear that some additional material is required before the court to exercise the powers to discharge the accused at any stage. Considering the facts and circumstances of the case, the order passed by the learned Magistrate is quashed and set aside. The Court below is directed to proceed further in accordance with law as expeditiously as possible. Rule is made absolute accordingly. .