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Allahabad High Court · body

2009 DIGILAW 2808 (ALL)

BUNDU KHAN v. STATE OF U. P.

2009-08-11

RAJESH CHANDRA

body2009
JUDGMENT Hon’ble Rajesh Chandra, J.—The applicants have moved this application under Section 482, Cr.P.C. with a prayer that the order dated 26.6.2009 passed by the Judicial Magistrate, Hapur District Ghaziabad in Case No. 80/08 as also the further proceedings of the said case may be quashed. 2. In brief facts of the case are that one Yusuf moved an application under Section 156(3), Cr.P.C. in the Court of Judicial Magistrate, Hapur. The application was registered as a complaint and thereafter statement of the complainant was recorded under Section 200, Cr.P.C. The Court further recorded the statements of Imamuddin and Fakir under Sections 202, Cr.P.C. The lower Court after going through the oral and documentary evidence came to the conclusion that prima facie the offences under Sections 406, 504 and 506, IPC are made out against the accused-applicants and thereafter summoned them for those offences vide order dated 4.12.2008. 3. The accused-applicants then moved an application under Section 245(2), Cr.P.C. which application was rejected by the lower Court vide order dated 26.6.2009. It is this order which has been challenged in this application under Section 482, Cr.P.C. 4. I have heard the learned counsel for the applicants as well as the learned AGA. 5. I have also gone through the record. A perusal of the impugned order makes it clear that the application under Section 245(2), Cr.P.C. was moved by the accused-applicants through their Counsel without putting in their appearance in the Court. Since there is no averment in the application under Section 482, Cr.P.C. that the personal attendance of the accused persons was dispensed with the Magistrate under Section 205, Cr.P.C. hence it was necessary for the accused-applicants to put in their appearance in the lower Court, seek their bail and then move an application under Section 245(2), Cr.P.C. As the accused-applicant did not appear in the lower Court hence their application under Section 245(2), Cr.P.C. was rightly rejected by the lower Court and to that extent I do not find any illegality in the order passed by the lower Court. 6. In the impugned order an observation has been made by the lower Court that it does not possess powers to review its own order by which the accused-applicants have been summoned. I feel this observation was not correct. 6. In the impugned order an observation has been made by the lower Court that it does not possess powers to review its own order by which the accused-applicants have been summoned. I feel this observation was not correct. If the accused-applicants appear in the lower Court and move an application under Section 245(2), Cr.P.C., it will not amount to seeking a review of the summoning order. Under Section 245(2), Cr.P.C. a right has been given to the accused persons to seek their discharge at any previous stage of the case and the Magistrate has been empowered to discharge the accused for reasons to be recorded by such Magistrate, if the Magistrate considers the charge to be groundless. Thus an application for discharge may be moved by the accused persons before reaching upto the stage of Section 244, Cr.P.C. Similar view has been taken by Hon’ble K.N. Sinha, J. in Girish Chandra Gupta v. State of U.P., 2004(50) ACC 735. 7. In this connection an observation of the apex Court in State of Bihar v. Baidnath Prasad, AIR 2002 SC 64 , may be referred which is as under : “An order of discharge of the accused after collecting the evidence envisaged under Section 244 of the Code can be passed only when 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. ”This is the legislative edict of Section 245 of the Code. The only other exception to the said precept is that it is open to the Magistrate to discharge 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.” 8. Thus an application may be moved for discharge of accused even before the case reaches the stage of Section 244, Cr.P.C. 9. In any case so far the impugned order is concerned there is no illegality or impropriety in it. 10. The application under Section 482, Cr.P.C. is dismissed. ————