This application u/s 482 Cr.P.C. has been filed for quashing the impugned order dated 1.12.2009 passed by the Judicial Magistrate, Firozabad, in Complaint Case No. 2469 of 2009 (Old Complaint Case No. 5691 of 2004) Chaitanya Sharma (since deceased) Vs. Aparna alias Poonam and others, u/s 420, 406 I.P.C. pending in the Court of Judicial Magistrate, Court No. 3, Firozabad, and to allow the discharge application moved by the applicants.
It appears from the record that the husband of Smt. Aparna @ Poonam had filed a complaint against the applicants u/s 420, 406 I.P.C. In that case the applicants were summoned for those offences. The matter went up to the stage of section 244 Cr.P.C. The husband of applicant no. 1 died and thereafter the brief was held by his father. He too later on died. Then a request was made by the mother of the husband of applicant no. 1 to continue with the prosecution. Simultaneously an application was moved by the applicants for their discharge on the ground that the case had abated on the death of the complainant i.e. the husband of applicant no. 1. The concerned court instead of granting permission to the mother of the husband of applicant no. 1 to continue with the prosecution permitted the counsel, O.P. No. 2, to continue with the prosecution for the husband of applicant no. 1. An application was also moved by the applicants for their discharge in the case filed by the husband of applicant no. 1. That application was rejected by the impugned order.
I have heard Mr. Atul Sharma, learned counsel for the applicants, learned AGA for the State and perused the record.
It has been argued by Mr. Sharma that by virtue of section 256(2) Cr.P.C. the case was bound to be closed and the applicants deserved acquittal.
I do feel that this argument of Mr. Sharma is devoid of merits.
Section 256(2) Cr.P.C. applies to the trial of summon cases by the Magistrate while definitely the present case was not a summon case but a warrant case. For warrant case the provisions contained in sections 238 to 249 apply. Section 249 Cr.P.C. says about the procedure to be followed in the absence of the complainant for any reason whatsoever. This provision says that in case of lawfully compounded or in non-cognizable offences the court may exercise discretion to discharge the accused in the absence of the complainant. This provision being discretionary can be applied only on the basis of the evidence available before the court. It has not been shown by Mr. Sharma that up to the stage of 244 Cr.P.C. there was no material at all on the record to frame a charge and therefore, there could be no wrong in the order passed by the Magistrate if he had exercised the discretion not to discharge the applicants at the time when the application for discharge was moved by them and the permission was granted to the Advocate u/s 302 Cr.P.C. to continue with the prosecution.
In view of the above, no merits are found in the application. It is hereby rejected.
Order Date :- 10.5.2010 Pcl