The revision petitioner herein is the first accused in C.C No. 147 of 2013 before the Chief Judicial Magistrate Court, Palakkad. It is a complaint case alleging the offences punishable under Section 420, 464, 465, 467, 468 and 471 of the Indian Penal Code. The allegations made on facts in the complaint are regarding forgery of a Power of Attorney and sale of some property on the basis of the said Power of Attorney. Before recording evidence under Section 244 Cr.P.C the revision petitioner herein made an application before the court below as CMP No. 6870/2013 under Section 245 Cr.P.C, for discharge. The said application for discharge was dismissed by the learned Chief Judicial Magistrate on 13.01.2014. What is under challenge in this revision is the said order disallowing discharge. 2. On a perusal of the impugned order I find that the prayer made by the revision petitioner in the court below was not definite, as to whether it is under Section 241 (1) Cr.P.C or Under Section 245 (2) Cr.P.C. In such a situation the learned Magistrate discussed both the possibilities. The court below found that there cannot be a discharge under Section 245 (1) Cr.P.C before recording evidence under Section 244 Cr.P.C. The possibility of a claim under Section 245 (2) Cr.P.C, for discharge even at a previous stage was also considered by the court below. Anyway on the finding that a discharge cannot be made in the particular facts and circumstances, the court below disallowed discharge.
3. On hearing both sides and on a perusal of the impugned order I find that the plea for discharge made by the revision petitioner requires reconsideration by the court below. Of course there is no question of discharge under Section 245(1) Cr.P.C in this case. When discharge is sought by the accused, the trial court is bound to look in to the petition, and also meticulously go through the complaint, to find out whether there is any definite material or allegation against the accused, for proceeding against him, or for framing a charge against him. The impugned order shows that the allegations in the complaint were not properly and judiciously considered or assessed or examined by the court below. Copy of the complaint was made available to me during the arguments in this revision. On going through the complaint, I find the necessity of a proper and judicious consideration of the request, on the basis of the allegations made in the complaint. The court will have to find out from the complaint, what exactly is the definite allegations against the petitioner herein, or what exactly is the role alleged against him in the alleged forgery or cheating. If his role was only that he simply drafted a Power of Attorney as a lawyer, he cannot be proceeded against, for the forgery or other offences committed by others by making use of such a document. Anyway let all the aspects of the matter be considered by the court below properly and judiciously. Of course the petitioner can make a proper application, if he seeks discharge under Section 245 (2) Cr.P.C. It is submitted that the proceedings in the trail court stand stayed. This means that trial is yet to commence. If so there is no scope to make a further application under Section 245 (1) Cr.P.C. I find that application was not properly made by the revision petitioner. So he can make fresh application, specifically under Section 245 (2) Cr.P.C. When such an application is made, the court below shall consider the application, and also examine the complaint meticulously and judiciously to find whether materials are there against the revision petitioner for prosecution against him, or to show his complicity in any manner, in any of the offences alleged in the complaint.
In the result this revision petition is allowed. The impugned order in Crl. MP 6870 of 2013 is hereby set aside, and the matter is remitted to the trial court for fresh, proper and judicious consideration as indicated above.
sab P.UBAID, JUDGE