By Vijay Pal Dalmia,
Supreme Court of India and High Court
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That on application of the accused under Section 245(2) of the Cr.P.C, the Magistrate has the power to discharge the accused at any stage falling under the scope of sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C.
Reference in this regard may please be made to the judgment of Hon'ble Supreme Court in Ajoy Kumar Ghose vs. State of Jharkhand and Ors., MANU/SC/0406/2009 / AIR2009SC 2282. The relevant extract from the judgment is as under:
".....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. 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."
"....As has already been stated earlier, the Magistrate simply issued the process under Section 204 Cr.P.C. 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....."
Therefore, it is clear that Magistrate can discharge the accused even before the evidence is led under Section 244 Cr.P.C., on the application for discharge of the accused, therefore, an application for discharge filed by the Accused under Section 245(2) of the Cr.P.C shall be considered to be well within the rights provided under the law.
Therefore, an order passed on the discharge application of the accused under section 245(2) of the Cr.P.C. is not an interlocutory order and revision is maintainable under Section 397 of Cr.P.C against the said order.
The Hon'ble Supreme Court in Municipal Corporation of Delhi Vs. Girdharilal Sapuru and others, AIR1981SC 1169/ MANU/SC/0189/1981, has held that revision under Section 397 of the Cr.P.C is maintainable against the discharge order.
The relevant extract from the judgment is as under:
"....The question whether a discharge order is interlocutory or otherwise need not detain us because it is settled by a decision of this Court that the discharge order terminates the proceedings and, therefore it is revisable under Section 397(1), Cr. P.C.".
Further, the Allahabad High Court in Criminal Misc. Writ Petition Nos. - 11721 of 2012 and 20954 of 2013 had held that an order refusing discharge, by rejecting the discharge application, is not an interlocutory order, inasmuch as if the said application is allowed it would terminate the proceedings, therefore, the revision against the said order would be maintainable.
In view of the above, the Application filed under Section 397 of the Cr.P.C. against the dismissal of the discharge application filed under Section 245(2) of the Cr. P.C is maintainable.
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