JUDGMENT Heard learned Counsel Mr. R. Chhabra for the applicant and learned Counsel Mr. N.S. Agrawal for non-applicant No. 1. The applicant feels aggrieved by the order passed by the learned Additional Sessions Judge in Criminal Revision No. 807/2009 on 16-6-2011. 2. To narrate the facts in brief, it may be stated here that non-applicant No. 1 Smt. Seema Gedam had filed a police complaint against Arun Indurkar, Nepal Indurkar and Smt. Raiwanti Indurkar for the offences punishable under Sections 294, 504 and 506 read with Section 34 of the Indian penal Code. The applicant Mr. Ajay Dwarkadas Baheti was Advocate representing the above named three accused in the said case. It was tried as Regular Criminal Case No. 235/99 (State of Maharashtra vs. Arun and two others). The said case was finally decided on 22nd June, 2007. All the accused were acquitted of the charges framed against them. 3. Non-applicant No. 1 - Smt. Seema Gedam, who was the original complainant in the said case, felt aggrieved by the said judgment and felt aggrieved by certain questions put to her in the cross-examination by the applicant on behalf of the said three accused. She, therefore, filed a private complaint against the applicant Advocate Mr. Ajay Baheti and the said three accused namely Shri Arun Indurkar, Nepal Indurkar and Smt. Raiwanti Indurkar. The said criminal case was registered as Regular Criminal Complaint Case No. 2230/2007 in the Court of Judicial Magistrate, First Class, Court No. 6, Nagpur. After recording of statement of the applicant on oath and statements of witnesses, a process of summons was issued on 24.8.2007 against the applicant and other three accused to appear before the Court to answer the charge for the offences punishable under Sections 500, 504 and 506 read with Section 34 of the Indian Penal Code. Before I proceed further, it is necessary to be stated here the statements of witnesses so recorded are labelled by the Magistrate as 'evidence before charge'. 4. At this stage, since the copies of record of trial Court did not appear to be true copies in all respects, the Registrar (Judicial) was directed to call original record and proceedings from the trial Court. 5. 4. At this stage, since the copies of record of trial Court did not appear to be true copies in all respects, the Registrar (Judicial) was directed to call original record and proceedings from the trial Court. 5. The record and proceedings were received and they were placed before me by the Registrar (Judicial) of this Court at 2.30 p.m. After having gone through the record and proceedings, it is noticed that the application for discharge filed by the applicant, who was accused No. 4 in Regular Criminal Complaint Case No. 2230/2007, was decided on 15th February, 2008. The applicant was discharged of the charges for the offences punishable under Sections 500, 504 and 506 read with Section 34 of the Indian penal Code. The case was directed to proceed against original accused Nos. 1 to 3. It further appears from the record and proceedings that non-applicant No. 1 Smt. Seema Gedam, who was the complainant in Regular Criminal Complaint Case No. 2230/2007, had moved the learned trial Magistrate on 6th August, 2009 for compounding the offence under Section 320 of the Criminal Procedure Code. The said application was granted by the learned trial Magistrate. Though the learned trial Magistrate has not clearly stated as to whether the original accused Nos. 1 to 3 were acquitted or discharged, the roznama of the case clearly indicates that the proceedings came to an end on 6th August, 2009. The roznama dated 6th August, 2009 runs as under:- "Ex.47 application under Section 320 of Cr.P.C. for compounding the offence. Ex.48 Compromise Pursis. Order passed on Exh. l, 47. Application allowed. Compound the matter. Case is closed." 6. The order dated 15th February, 2008 discharging the applicant/accused no. 4 of all the charges for which summons was issued to him was challenged before the Sessions Court in Revision Application No. 807/2009. The said Revision Application was disposed off on 16th June, 2011. The learned Judicial Magistrate, while discharging the applicant, had passed the following order:- "1) Application Exh. 13 is allowed. 2) Accused No. 4 is discharged u/s 245 (2) of Cr.P.C. of the offence punishable u/s. 500, 504 and 506 IPC. 3) Case to proceed against accused No. 1 to 3." The learned Additional Sessions Judge in his impugned order dated 16th June 2011, had made the following observations:- "As Magistrate had taken a cognizance of offences against accused Nos. 2) Accused No. 4 is discharged u/s 245 (2) of Cr.P.C. of the offence punishable u/s. 500, 504 and 506 IPC. 3) Case to proceed against accused No. 1 to 3." The learned Additional Sessions Judge in his impugned order dated 16th June 2011, had made the following observations:- "As Magistrate had taken a cognizance of offences against accused Nos. 1 to 4 and as only present respondent had moved application for discharge, it was obligatory upon Magistrate to afford opportunity to adduce evidence under section 244 of the Code of Criminal Procedure to the complainant, and then to decide aspect of framing of charge or discharge of accused. However, Magistrate has not afforded opportunity to complainant to adduce evidence under section 244 of Code of Criminal Procedure, and as only on the basis of material available on record had formed opinion that charge appears to be groundless, decision taken vide impugned order is contrary of law. Consequently, impugned order cannot sustain. Point No. 1 is therefore answered in affirmative." After making these observations, the learned Addl. Sessions Judge passed the following order:- "i) Revision petition is hereby allowed. ii) 1mpugned order dated 15.2.2008 passed below Exh. 13 in Regular Criminal Complaint Case No. 2230/2007 Dr. Seema vs. Arun and others by Judicial Magistrate, First Class, Court No. 6, Nagpur is hereby set aside. iii) Learned trial Court is hereby directed to afford opportunity to the complainant to adduce evidence under Section 244 of Code of Criminal Procedure and then consider the aspect of either framing a charge or discharge of accused." 7. The learned Addl. Sessions Judge has also taken note of the fact that the evidence of two witnesses was recorded as 'evidence before charge'. The learned Addl. Sessions Judge, was, however, not sure as to whether the said evidence was recorded before issuing the process or after issuing the process. However, the examination of record and proceedings shows that the statement of the non-applicant no. l/original complainant was recorded on 10th July, 2007. Statements of the witnesses were recorded on 9th August, 2007 and process was issued on 24th August, 2007. However, the mistake committed by the learned Magistrate is that the statements of the witnesses have been labelled as 'evidence before charge'. l/original complainant was recorded on 10th July, 2007. Statements of the witnesses were recorded on 9th August, 2007 and process was issued on 24th August, 2007. However, the mistake committed by the learned Magistrate is that the statements of the witnesses have been labelled as 'evidence before charge'. In fact, since the process was issued on 24th August 2007, there was no occasion for the Magistrate to record evidence before charge on 9th August, 2007. It appears that the learned Magistrate was not conversant with the legal provisions in this regard. In any event, since the order passed by the learned Magistrate discharging the applicant clearly states that the applicant had been discharged under Section 245(2) of the Cr.P.C., it can safely be presumed that the learned Magistrate considered the so called evidence before charge to be the statements of the witnesses. As such, the issue before this Court is whether on the basis of statement of the complainant and the witnesses, a process could have been issued against the applicant. In this regard, the allegations made by the non-applicant no. 1 in the Complaint may be reproduced as under :- "During cross-examination counsel for accused asked defamatory questions without any proof, documents in support of in relation to complainant, which cannot be asked in court resulting in defamation, character blemishing assassination of highly educated lady, social worker for down trodden community, without any reason, cause and justification. Accused No. 4 Counsel for accused pressurized witnesses by contacting them at residence by giving threat in case truth depose in Court. Witnesses Haridas Jambhulkar, Roopchand Madhavrao Gedam, Smt. Satyabhama Shyam Gedam turned hostile but before police all recorded their statements in affirmative. The act of Advocate for accused is highly objectionable, defeating professional morality, ethics and Advocates Act." 8. Reading of Complaint, by itself, shows that no case of any nature was made out against the applicant. In fact, it was not necessary for the learned trial Magistrate to proceed to record statement of the complainant. The Complaint could have been dismissed in limine. Even if the statement of the non-applicant no. l and two witnesses is read to ascertain whether process could have been issued, the result is the same. The alleged obscene words etc. have not been stated in the statement. It was, therefore, difficult for the learned Magistrate to decide whether offence of defamation was committed or not. Even if the statement of the non-applicant no. l and two witnesses is read to ascertain whether process could have been issued, the result is the same. The alleged obscene words etc. have not been stated in the statement. It was, therefore, difficult for the learned Magistrate to decide whether offence of defamation was committed or not. Moreover, what is pertinent to note is that the applicant was appearing as an Advocate on behalf the original accused nos. 1 to 3 in Regular Criminal Case No. 235/1999. The questions, if any, had been asked by him on the basis of instructions given to him. Apart from this, what is necessary to be noted is that there was nothing on record to indicate that any frivolous and scandalous question was asked to the non-applicant no. l. In the circumstances, the order discharging the applicant was right and did not require any interference by the learned Addl. Sessions Judge. It was not necessary for the learned Addl. Sessions Judge to remand the matter for hearing. What is pertinent to note here is that the non-applicant no.1 has compounded the offences with the main accused nos. 1 to 3 in Regular Criminal Case No. 235/1999. It is apparent that the prosecution against the applicant was intended to be continued maliciously without there being any material for the same. For all these reasons, I pass the following order: ORDER The proceedings against the applicant/original accused No. 4 in Regular Criminal Complaint Case No. 2230/2007 pending on the file of Judicial Magistrate First Class, Court No. 6, Nagpur are hereby quashed and set aside. The bonds, if any, of the applicant shall stand cancelled. It follows that the order passed by the learned Additional Sessions Judge in Criminal Revision No. 807/2009 is also set aside. Xerox copy of the roznama of Regular Criminal Complaint Case No. 2230/2007, xerox copies of the complaint, statements of the complainant and witnesses be prepared. A xerox copy of the order dated 15th February, 2008 passed by the learned trial Magistrate shall also be prepared. The copies so prepared be kept along with record of the present criminal application. The original record and proceedings shall be sent back to the trial Court immediately. Ordered accordingly.