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2002 DIGILAW 64 (MAD)

Natarajan and another v. U. Shakila and others

2002-02-04

M.KARPAGAVINAYAGAM

body2002
COMMON ORDER: Five private complaints filed against five accused containing common allegations and the same were taken on file in C.C.Nos.65 of 1998 to 69 of 1998 by the Judicial First Class Magistrate, Pondicherry for the offences under Secs.405, 420-B, 436 and 465 read with 34, I.P.C. On receipt of summons, Natarajan (A-4) and Sambasiva Reddiar (A-5) filed applications for discharge under Sec. 245(2), Crl.P.C. The trial Court, after considering the submissions made by the counsel for the parties, dismissed the same through separate orders. Assailing the same, the petitioners (A-4 and A-5) have filed these revisions. 2. I heard the learned counsel for the parties. 3. According to the counsel for the petitioners (A-4 and A-5), there is no allegation against the petitioners in each of the complaint and therefore, they ought to have been discharged under Sec. 245(2), Crl.P.C. 4. The said contention was refuted by the learned counsel for the complainant, since the claim for discharge before recording the evidence is not maintainable. 5. The trial Court dismissed the said applications mainly on the reason that without recording the evidence, the accused cannot be discharged, particularly when the trial Court earlier took cognizance and issued summons against all the accused including the petitioners (A-4 and A-5) on having satisfied with the allegations in the complaint. 6. On going through the impugned orders refusing to discharge the accused, I am of the opinion that the ground for dismissal is untenable. 7. A perusal of the relevant provisions relating to the trial of warrant cases instituted as private complaint, namely Secs.242 to 247, Crl.P.C, it is clear that the accused can be discharged under Sec. 245(2), Crl.P.C. for reasons to be recorded by the trial Court at any previous stage of the case, if the trial Court considers the charge to be groundless. 8. Therefore, the issuance of summons by the trial Court on having satisfied with regard to the averments mentioned in the complaint under Sec. 204, Crl.P.C. would not disentitle the accused to request the Court to discharge him under Sec. 245(2), Crl.P.C. even before the commencement of the trial. 9. In other words, even before recording the evidence, it can be pointed out to the Court concerned that the issuance of the summons by the trial Court was not correct, as the charge levelled against the accused is groundless. 10. 9. In other words, even before recording the evidence, it can be pointed out to the Court concerned that the issuance of the summons by the trial Court was not correct, as the charge levelled against the accused is groundless. 10. The general rule laid down in Sec. 245(1), Crl.P.C. regarding discharge is that it would take place only after taking all the prosecution evidence and after the Magistrate coming to the conclusion, for the reasons to be recorded that no case against the accused was made out. 11. But, to this general rule, there is exception in Sub-sec.(2) of Sec. 245, Crl.P.C. which permits the Magistrate to discharge the accused at any previous stage of the case if, for the reasons to be recorded by the Magistrate, he considers the charge to be groundless. 12. The expression “at any previous stage” of the case occurring in Sub-sec.(2) of Sec. 245, Crl.P.C. would clearly show that even before recording of evidence referred to in Sec. 245(1), Crl.P.C. the Magistrate can discharge the accused if he considers the charge to be groundless. Therefore, the issuance of summons of taking cognizance would not be a bar for the Magistrate to invoke Sec. 245(2), Crl.P.C. to discharge the accused before recording the evidence. 13. The order taking cognizance is an ex parte order and the action of taking cognizance is taken behind the back of the accused by the Magistrate purely on the complaint and the sworn statement recorded by him. 14. If we look at Sec. 245(2), Crl.P.C, it is clear that the Magistrate is not precluded from discharging the accused in private cases, if the accused satisfies the Court after his appearance that the summons have been wrongly issued against him and the charge against him is groundless. If a contrary view is taken, then Sec. 245(2) is that the complaint should not be allowed to be proceeded with on a charge which is groundless. 15. It is true that ordinarily, the Magistrate should record evidence and proceed under Sec. 245(2), Crl.P.C. and thereafter to continue the proceedings under Sec. 245(1), Crl.P.C. But, it is equally true that in view of the language employed by the legislature in Sec. 245(2), there is no bar against the Magistrate in discharging the accused even without recording the evidence in appropriate case. 16. 16. The words “at any previous stage” of the case occurring in Sec. 245(2), Crl.P.C. give a very wide power to the Magistrate for reasons to be recorded by him that the charge is groundless, even without recording any evidence under Sec. 245(1), Crl.P.C. Thus, it is clear that soon after his appearance, the accused would be entitled to claim discharge under Sec. 245(2), Crl.P.C. on the ground that the complaint ought no to have been taken on file against the accused. 17. The above view of mine is supported by the following decisions rendered by various High Courts (1) Sundar Das v. Fardun Rustom, A.I.R. 1939 Cal. 329; (2) Fazlar Rahaman v. Emperor, A.I.R. 1930 Cal. 515; (3) Kasinatha v. Shanmugam, 57 M.L.J. 490: A.I.R. 1929 Mad. 754; (4) Luis De Piedade Dobo v. Mahadev, 1984 Crl.L.J. 513; (5) Watson v. Metcalfe, A.I.R. 1925 Pat. 154; (6) Abhey Dass v. Gurdial Singh, A.I.R. 1997 S.C. 834; (7) Gopala Panicker v. Kesaavan, A.I.R. 1966 Ker. 243; (8) Shiv Datta v. B.K. Sood, A.I.R. 1940 Lah. 40; (9) Mansoor Shah v. Maya Shankar, A.I.R. 1952 M.B. 125; (10) Cricket Association of Bengal v. State of West Bengal, A.I.R. 1971 S.C. 1925 and (11) Shiv Kumar Daga v. State of Assam, 1990 Crl.L.J. 358. 18. Under those circumstances, the decision of the Bombay High Court in Luis De Piedase Lobo v. Mahadev, 1984 Crl.L.J. 513 cited by the learned counsel for the respondent stating that once summons was issued under Sec. 204, Crl.P.C, the Magistrate cannot change his prior opinion while issuing process unless some evidence is recorded to change his opinion is not correctly decided. 19. Let us now come to the next question as to whether the accused has come out with the case to show that the charge is groundless so as to invoke Sec. 245(2), Crl.P.C. 20. According to the complaint and the sworn statement of the complainant, on behalf of the company one Sugumar (A-3) made a false representation with reference to the sale of the flat and handed over false documents to the complainant by inducing them. The said third accused received a sum of Rs.7 lakhs. 21. Either in the complaint or in the sworn statement, there is no reference about the representation, which was found to be false, alleged to have been made by the petitioners (A-4 and A-5) to the complainant. The said third accused received a sum of Rs.7 lakhs. 21. Either in the complaint or in the sworn statement, there is no reference about the representation, which was found to be false, alleged to have been made by the petitioners (A-4 and A-5) to the complainant. The only reference in the complaint is that the petitioners (A-4 and A-5) are connected with the first accused company on whose behalf Sugumar (A-3) made a false representation and false documents were handed over to the complainant. 22. In other words, there is no specific averment with reference to the involvement of the petitioners (A-4 and A-5) in regard to the offences for which the complaints were taken on file. 23. Under those circumstances, the Magistrate ought to have discharged the petitioners (A-4 and A-5) and the order of dismissal was passed mainly on the reason that already summons were issued to the accused after having satisfied with the averments made in the complaint and the sworn statement cannot be said to be valid in law. 24. In view of the above reasonings, the impugned orders are set aside and the petitioners (A-4 and A-5) are discharged. The trial Court is directed to commence the trial as against the other accused and dispose of the same as expeditiously as possible. 25. In the result, all these criminal revision cases are allowed. Consequently, Crl.M.P. Nos. 10059, 10061, 10063, 10065 and 10067 of 1999 are closed.