1. Heard Mr. Nandit Srivastava and Mr. Imran Ullah for the petitioner and learned AGA for the respondent no.1 and perused the record.
2. This petition under section 482 of the Code of Criminal Procedure (in short 'the Code') has been filed for quashing the Magistrate's order dated 9.4.2010 (Annexure 10) and revisional court's order dated 17.1.2011 (Annexure 11).
3. Mr. Nandit Srivastava submitted that in complaint case no. 3976 of 2006, S.K. Agrawal vs. Manoj Dalmia, the petitioner, who is accused, moved application for discharge under section 245 (2) of the Code on the ground that the charge levelled against the petitioner in the complaint was groundless. The learned Additional Chief Judicial Magistrate, Court No.6, Jhansi rejected the discharge application vide his order dated 9.4.2010 on the ground that the application for discharge without appearance of the petitioner in the court was not maintainable specially when he had not been exempted under section 205 of the Code from appearing in the court.
4. The petitioner, thereafter, preferred criminal revision no. 183 of 2010 in the court of Sessions Judge, Jhansi, which was heard and disposed of by Additional Sessions Judge, Court No.4, Jhansi vide his order dated 17.1.2011. The learned Additional Sessions Judge was also of the same view.
5. The aforesaid orders have been impugned by this petition under section 482 of the Code.
6. Mr. Nandit Srivastava submitted that the prayer for discharge under section 245 (2) of the Code was maintainable even before appearance of the accused in the court. Mr. Srivastava placed reliance on Ajoy Kumar Ghose vs. State of Jharkhand and another, (2010) 1 SCC (Crl) 1301 in support of his submission. Mr. Srivastava next submitted that the format of summons prescribed in the Code clearly permits the accused either to appear personally or through counsel, therefore, the learned courts below were not justified in requiring the petitioner to appear in person and his application for discharge moved through counsel was maintainable.
7. According to Mr. Nandit Srivastava, the Apex Court, in the aforesaid case of Ajoy Kumar Ghose, has interpreted the meaning of the expression "at any previous stage of the case" occurring in section 245 (2) of the Code and has opined that the discharge prayer on behalf of the accused under section 245 (2) of the Code is maintainable even before appearance of the accused. Therefore, it seems to be just and expedient to examine as to how the Apex Court interpreted the meaning of the expression "at any previous stage of the case" occurring in section 245 (2) of the Code. The observations of the Apex Court made in paras 22 to 37 of the judgment are relevant, which are reproduced as follows:
"22. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.
23. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr.P.C., on the ground that the charge was groundless.
24. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.
25. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly bring out this position.
26. It will be better to see what is that "previous stage". The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court.
27. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court.
28. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding.
29. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant case under Section 244 Cr.P.C.
30. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him.
31. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge.
32. In the present case, the Magistrate did not dismiss the complaint under Section 203 Cr.P.C. However, since this was a complaint made by the Court, there was no question of examining complainant or any of his witnesses under Section 200 Cr.P.C. Further, there was no question of even issuing any direction for investigation under Section 202 Cr.P.C., since the complaint was made by the Court. This is clear from the wordings of Section 202(1) Cr.P.C. It is as under:-
"202. Postponement of issue of process.-(1) ...........
Provided that no such direction for investigation shall be made-
(a) x x x x x
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200."
33. We have already pointed out that since this was a complaint made by the Court, therefore, there would be no question of there being any examination of complainant or his witnesses on oath. As has already been stated earlier, the Magistrate simply issued the process under Section 204 Cr.P.C.
34. When the accused appeared in pursuance to the summons sent to him, under Section 244 Cr.P.C., the defence came out with an application. There can be no difficulty that the discharge application was perfectly in order at that stage. Therefore, what was available before the Magistrate besides this discharge application was, a bare complaint. There was absolutely nothing beyond the complaint available, for the Magistrate to consider the framing of charge. The Magistrate could, undoubtedly, have proceeded under Section 245(2) Cr.P.C., on the basis of discharge application and discharge him. However, he would have been required to give reasons for discharging at that stage, when no evidence or no material, whatsoever, was available with him, excepting a bare complaint.
35. The Magistrate, in this case, not only dismissed the application, but also proceeded to frame the charge, which order was also in challenge in the Writ Petition filed before the Division Bench. We have now to see as to whether the Magistrate was justified in dismissing the discharge application and then straightaway to frame a charge under Section 246(1) Cr.P.C. If under Section 245(2) Cr.P.C., there could be a discharge at any previous stage which we have discussed about, there is a necessary sequel, an application could also be made at that stage.
36. The Magistrate has the power to discharge the accused under Section 245(2) Cr.P.C. at any previous stage, i.e., before the evidence is recorded under Section 244(1) Cr.P.C., which seems to be the established law, particularly in view of the decision in Cricket Association of Bengal Vs. State of West Bengal 1971 (3) SCC 239, as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo Vs. Mahadev Vishwanath Parulekar, 1984 Cri LJ 513 (Bom). The same decision was followed by Kerala High Court in Manmohan Malhotra Vs. P.M. Abdul Salam 1994 Cri.LJ 1555 (Ker) and Hon'ble Justice K.T. Thomas, as the Learned Judge then was, accepted the proposition that the Magistrate has the power under Section 245(2) Cr.P.C. to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of Madras High Court in Mohd. Sheriff Sahib V. Abdul Karim Sahib AIR 1928 Madras 129(1), as also the judgment of Himachal Pradesh High Court in Gopal Chauhan Vs. Satya 1979 Cri L.J. 446 (HP).
37. We are convinced that under Section 245(2) Cr.P.C., the Magistrate can discharge the accused at any previous stage, i.e., even before any evidence is recorded under Section 244(1) Cr.P.C. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty."
8. On a perusal of the aforesaid observations of the Apex Court as also the scheme of the Code it is abundantly clear that as and when a Magistrate takes cognizance of an offence upon a complaint under section 190 (1)(a) of the Code, he has to record the statement of the complainant and the witnesses, if any, under section 200 of the Code. However, there can be a departure to this legal requirement in a case where the complaint has been filed by a court or a public servant while acting or purporting to act in discharge of his official duties or the complaint is made over to another Magistrate under section 192. The Magistrate has further power under section 202 of the Code to postpone issue of the process to the accused and to hold an inquiry himself or direct it to be held by some other person. If the case is not exclusively triable by the court of session, the Magistrate has further power even to direct the police for the investigation. After examining the complainant and his witnesses, if any, under section 200 of the Code or after holding the inquiry under section 202 of the Code, as the case may be, the Magistrate passes orders under section 203 or section 204 of the Code. If the Magistrate finds no sufficient ground for proceeding with the complaint, he shall dismiss the complaint under section 203 of the Code. On the other hand, if the Magistrate forms the opinion that there is sufficient ground for proceeding with the complaint, he shall issue summons or a warrant, as the case may be, against the accused, therefore, on and from the date of filing of the complaint and taking of cognizance by the Magistrate under section 190(1)(a) of the Code till the issue of process to the accused under section 204 of the Code, there is no participation of the accused. He comes in picture as and when a process is issued to him under section 204 of the Code. Then comes the provision contained in section 244 (1) of the Code regarding appearance of the accused in pursuance of the process issued by the Magistrate. It may further be mentioned that the Magistrate triable complaint cases can be divided into two categories, the first category of such cases is the complaints triable as warrant cases and the second category is the complaints which are triable as summons cases. The present case is admittedly triable as a warrant case instituted otherwise than on a police report, therefore, the provisions contained in sections 244, 245 and 246 of the Code seem to be relevant for considering the controversy involved in the present matter. According to the scheme of these sections, it is crystal clear that when the accused appears or is brought before a Magistrate in pursuance of the process issued under section 204 of the Code, the first requirement is that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the complaint. This requirement of law has been provided in section 244 of the Code. If a prayer for summoning any witness is made by the complainant, the Magistrate may summon the witness either to give evidence or to produce a document or thing. Section 245 (1) of the Code empowers the Magistrate to discharge the accused and that power is exercisable only after taking all the evidence referred to in section 244 of the Code. If upon considering such evidence the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant of conviction of the accused, he shall discharge the accused. In other words, the accused has to be discharged in a case where the evidence collected under section 244 of the Code, if unrebutted, makes out no case against the accused and his conviction would not be possible on that evidence. Therefore, the discharge of the accused under section 245 (1) of the Code can be passed only after taking all the evidence referred to in section 244 of the Code and not before that. As such before discharging the accused under section 245 (1) of the Code, it is obligatory for the Magistrate to take all such evidence as may be produced by the complainant in support of the prosecution. However, there is an exception to this general principle and that is contained in section 245 (2) of the Code, which provides that the Magistrate may discharge an accused at any previous stage of the case if he considers the charge to be groundless. To put it otherwise, the discharge of the accused under section 245 (2) of the Code can be made only when the Magistrate finds the charge to be groundless at any previous stage of the case, i.e. before conclusion of the evidence under section 244 of the Code. Another important aspect of the matter is that the Magistrate has to record reasons for discharging the accused under section 245 (1) or section 245 (2) of the Code. The question that is involved in the present matter is as to what is the meaning of the expression "at any previous stage of the case" contained in section 245 (2) of the Code. The Apex Court interpreted the meaning of the said expression in the case of Ajoy Kumar Ghose (supra) and held that the previous stage would obviously be before the evidence of the prosecution under section 244 (1) of the Code is completed or any stage prior to that and such stages would be under section 200 to section 204 of the Code. To put it otherwise, if the prosecution evidence under section 244 (1) of the Code has concluded, the question of invoking the provisions of section 245 (2) of the Code does not arise and in that situation the discharge prayer can be considered according to the parameters laid down in section 245 (1) of the Code. But the position would be different when the prosecution evidence under section 244 of the Code is yet to begin or has already begun but not concluded, therefore, the expression "at any previous stage of the case" contained in section 245(1) of the Code means the stage at the beginning of the proceeding under section 244 on appearance of the accused or even before appearance of the accused at the stages under section 200 to 204 of the Code. On and from the commencement of the prosecution evidence under section 244 and before its conclusion, according to the Apex Court, also comes within the category of "previous stage of the case" as provided in section 245 (2) of the Code. In other words, if the prosecution evidence begins under section 244 of the Code even then the power of discharge under section 245(2) can be invoked provided the prosecution evidence under section 244 is not complete till the date of invocation of such power.
9. Mr. Nandit Srivastava tried to submit that the Apex Court, in the aforesaid case of Ajoy Kumar Ghose (supra) has very clearly held that the power under section 245(2) of the Code can be exercised even before appearance of the accused, therefore, the learned Magistrate as well as the revisional court could not be said to be justified in requiring the petitioner to appear in person in the court at the time of considering his prayer for discharge under section 245 (2) of the Code. It is no doubt true that the Apex Court has held in the aforesaid case that the discharge prayer under section 245 (2) can be entertained even before appearance of the accused in the court but that proposition seems to have been laid down in a different context. It appears that the Apex Court bifurcated the expression "previous stage of the case" in two categories. The first category is the stages of the case under sections 202 to 204 of the Code, and the other category is the stage of evidence on appearance of the accused under section 244 of the Code but before conclusion of the prosecution evidence under section 244 of the Code. In the first category of the case, the Apex Court opined that the discharge prayer can be considered before appearance of the accused but in the second category of the case presence of the accused has been held necessary because the proceeding under section 244 begins with the appearance of the accused, therefore, in a case where the stages provided in sections 200 to 202 of the Code have already come to an end and the case reaches the stage of section 244 of the Code on appearance of the accused, the discharge prayer, in such situation, under section 245 (2) of the Code can not be entertained without the appearance of the accused. This conclusion finds support from the observations of the Apex Court made in para 29 of the judgment in Ajoy Kumar Ghose' case. In that paragraph the Apex Court held " if the Magistrate comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under section 204 of the Code....... It is in fact here that previous stage referred to in section 245 normally comes to an end because the next stage is only the appearance of the accused before the Magistrate in a warrant case under section 244 of the Code." To put it otherwise, as and when any process is issued to the accused, the previous stage referred to in section 245 (2) of the Code ordinarily comes to an end but there may be cases where section 245 (2) of the Code can be invoked thereafter, and that may be the cases where discharge prayer is made on appearance of the accused but before start of the prosecution evidence or during the course of prosecution evidence but before its conclusion. In the subsequent situation, the personal presence of the accused, if not already exempted under section 205 of the Code, is necessary. In this view of the matter, the submission of the learned counsel for the petitioner that after issuing the process under section 204 of the Code the Magistrate could consider the discharge prayer of the petitioner under section 245 (2) of the Code without the personal appearance of the petitioner in the court, does not appear to be correct in law.
10. Mr. Nandit Srivastava lastly submitted that the format of the summons provided in Form no. 1 of the Schedule II to the Code prescribes the requirement of the presence of accused in person or through counsel, therefore, it was not obligatory on the part of the petitioner to appear in person and he could appear even through counsel.
11. The aforesaid submission has some substance in a case where the Magistrate invokes the provision of section 205 of the Code at the time of issuing process to the accused and permits the accused to appear through counsel. In other words, the power under section 205 of the Code can be exercised by the Magistrate even at the very initial stage of issuing process to the accused under section 204 of the Code and at that stage the Magistrate may require the accused to appear in person or through counsel. If the personal attendance of the accused in the court has not been exempted by the Magistrate under section 205 of the Code or he has not been permitted to appear through counsel after granting such exemption, the accused can not deny to appear in person in the court in the garb of the format prescribed for summons. In criminal trials, presence of the accused in the court is a must. No proceeding in criminal trials can take place in absence of the accused except in the cases covered by sections 299 of the Code or the cases in which section 205 of the Code has been invoked and accused has been exempted from personally appearing in the court. Whether the personal attendance of the accused is to be exempted or not is the question for the consideration of the Magistrate.
12. Therefore, the legal questions raised by the learned counsel for the petitioner in the present matter have no substance.
13. However, before parting with the judgment I would like to observe that the present case is quite old. The summoning order was passed on 22.10.1992 and since then about nineteen years have elapsed and even then the presence of the accused could not be secured and the trial is lying standstill. The petitioner had preferred a criminal revision in the court of sessions against the summoning order, which was allowed by the revisional court. Thereafter, the complainant filed a petition in this Court which was dismissed on 3.5.2001. The complainant, thereafter, brought the matter before the Apex Court by way of special leave petition, which was disposed of on 15.11.2002. The Apex Court quashed the orders passed by the court of sessions and this Court and affirmed the summoning order and directed the Magistrate to conclude the trial within one year, even thereafter, about nine years have elapsed but no progress took place in the matter on account of non appearance of the petitioner. It may also be mentioned that the petitioner, instead of appearing personally in the court of Magistrate, engaged lawyers in the court of sessions, High Court and the Apex Court, and even after dismissal of the special leave petition by the Apex Court, the discharge application moved in the court of Magistrate was also moved through an advocate. More so, the revision preferred in the court of session against the rejection of the discharge application was also filed by the petitioner through an advocate. The present petition in this Court against the revisional court's order has also been filed by the Advocates engaged by the petitioner. But to the utter surprise, the petitioner, who is living in a foreign country, did not consider it appropriate, despite the direction of the Apex Court, to appear personally in the trial court and to cooperate with the trial. Instead of doing so, he has indulged in lingering on the proceedings of the criminal case on one pretext or the other. The Advocates engaged by the petitioner had no doubt responsibility to plead the cause of the petitioner and to put up his case in the court according to his instructions but at the same time, they, being officers of the court, were also expected to give proper advice to the petitioner to obey the command of law and follow the dictate of the court. No one can be permitted to behave himself above the law in such a manner as to frustrate the judicial proceeding of a case. The summoning order, being based on the relevant materials adduced by the complainant, has already been affirmed by the Apex Court, therefore, the petitioner can not be said to be justified in any way in pressing for his discharge under section 245 (2) of the Code on the same material, without putting his appearance in person in the court and also without permitting the complainant to adduce evidence under section 244 of the Code.
14. In view of the aforesaid, the petition, which is wholly frivolous and luxurious, has no merit and is dismissed with exemplary costs of Rs. Twenty thousand to be paid to the respondent no.1, which is to be recovered by the Chief Judicial Magistrate, Jhansi as arrears of fine if not paid by the petitioner within two months from today.
15. Let a copy of this order be sent to the learned Sessions Judge, Jhansi for compliance.
Order Date :- 27.9.2011 RKSh