Petitioner is original accused. They seek quashing of an order dated 10.09.2008 passed by the learned Additional Sessions Judge, Junagadh.
Against the petitioner and other co-accused, complaint for offences punishable under Sections 323, 325, 327, 341, 342, 347, 352, 357, 504, 506(2) and 500 of the Indian Penal Code came to be filed. On the said complaint, learned Magistrate ordered inquiry under Section 202 of the Criminal Procedure Code. Subsequently, by an order dated 20.06.2005, considering the evidence collected, the Magistrate issues summons under Section 204 of Criminal Procedure Code.
Petitioner filed an application Exh.61 and sought his discharge on various grounds. His application was filed on 12.02.2008. On the said application, the learned Magistrate passed an order on 20.02.2008 holding that there is no substance in complaint against the petitioner therefore, he is required to be discharged in view of the provisions of Sections 245(1) and 245(2) of the Criminal Procedure Code. Discharge order was, therefore, passed.
The order of discharge was challenged by the complainant before the Sessions Court. Learned Additional Sessions Judge by his impugned order dated 10.09.2008 set aside the order only on the ground that having once recorded statement of witnesses under Section 204 of Criminal Procedure Code, it was not open for the Magistrate to discharge the accused.
Learned counsel for the petitioner relied on the decision of this Court in case of The New India Assurance Co. Ltd. v. The State of Gujarat reported in 1985(1) Crimes Page 408 wherein the learned single Judge of this Court observed that Sub-section (2) of section 245 gives ample jurisdiction to the Magistrate to discharge the accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case.
Counsel for the petitioner also relied on the provisions of Section 245 of Criminal Procedure Code, which reads as follows:
245. When accused shall be discharged.-(1) If, upon taking all the evidence referred to in section 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.
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.
On the other hand, learned counsel Ms. Mandaviya for the complainant submitted that the Magistrate has discharged the petitioner without sufficient reasons and the order of the learned Additional Sessions Judge may, therefore, not be interfered with.
From the perusal of the documents on record, it becomes clear that the learned Additional Sessions Judge was pleased to allow the revision application only on the ground that Magistrate has no powers to discharge under section 245 of Criminal Procedure Code, however, upon perusal of the provisions contained in section 245 and particularly sub-section (2) thereof and in view of the decision of this Court in case of The New India Assurance Co. Ltd. (Supra), Magistrate enjoyed the powers to pass appropriate order this being a warrant triable case. Under the circumstances, though, order passed by the learned Judge is required to be set aside, since revision was allowed only on the ground of lack of power of Magistrate and other issues were not examined, proceedings are required to be remanded to the learned Additional Sessions for fresh consideration.
In the result, order dated 10.09.2008 is quashed. Proceedings are remanded to the learned Additional Sessions Judge for fresh consideration of the revision application on merits in accordance with law, which may be done expeditiously. Disposed of accordingly. Notice is discharged. Ad-interim relief vacated.
(Akil Kureshi, J.) menon Top