After arguing for some time, when it was pointed out to the Counsel for the revision petitioner that his right to claim for discharge after evidence of the complainant under Section 244 of Code of Criminal Procedure is still left open, the Counsel for the revision petitioner submitted that he may be permitted to withdraw this petition with liberty to raise his contentions at the time of hearing under Section 245 of Code of Criminal Procedure and directing the magistrate to consider all his contentions untrammeled by the observations made in this order. It is also seen from the report of the magistrate that no pre charge evidence has been taken in the case. So, even if this application is dismissed by the court below as a prematured one, if the petitioner is entitled to substantiate his case by cross examining the witness examined for the purpose of framing charge, the order if any passed by the court below will not be a bar for considering those materials and pass appropriate orders as to whether charge will have to be framed or not by the magistrate independently. So, this court feels that the revision can be disposed of as follows:
After pre charge evidence, if the revision petitioner raises the contentions and if the court is satisfied that the materials are not available for framing charge, then, the order passed by the court below in this application will not be a bar for re- appreciate the contention and take appropriate decision at that stage. So, the revision petition is disposed of as stated above leaving open the right of the revision petitioner to raise all his contentions before the court below during pre charge hearing to be conducted under Section 245 of Code of Criminal Procedure after recording the evidence of the complainant under Section 244 of the Code of Criminal Procedure and take appropriate decision untrammeled by the observations made in the impugned order.
If the petitioner appears and move for bail and also for personal exemption, then, since the identity of the petitioner is not in dispute and the presence of the accused is not even required during the time of pre charge evidence for considering the hearing on his discharge at that time, court below is directed to pass appropriate orders in that application in accordance with law.
With the above observation and direction, the revision petition is disposed of. The interim order granted is vacated.
Parties are directed to appear before the court below on the next posting date and move for bail and also for personal exemption and if those applications are filed, the court below is directed to pass appropriate orders in view of the observations made above and dispose of the application on the same day in accordance with law.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge