- (1.) Heard Mr. Rajeev Nayan Singh for the applicants, Mr. Brijesh Yadav for the respondent No. 2 and learned A.G.A. for respondent No. 1 and perused the record.
(2.) Mr. Rajeev Nayan Singh for the applicants submitted that the applicants had moved an application for discharge under Section 245 (2). Cr.P.C. and the learned Additional Chief Judicial Magistrate rejected the application on the ground that the discharge application was not maintainable without taking evidence under Section 244, Cr.P.C. The learned counsel further submitted that a single Judge of this Court in the case of Girish Chandra Gupta and others v. State of U. P. and others, 2005 1 AllCriR 427, has very specifically held that accused may claim discharge under Section 245 (2), Cr.P.C. immediately on his appearance and even before the evidence under Section 244, Cr.P.C. This proposition has been laid down on the basis of the terms 'at any previous stage of the case' used in Section 245 (2), Cr.P.C. The learned counsel for the applicants further submitted that the learned Magistrate instead of following the verdict of this Court laid down in the case of Girish Chandra Gupta placed reliance on Adalat Prasad v. Roop Lal Jindal, 2004 3 Cri 350 (SC), and Subrahmaniam Sethuraman v. State of Maharashtra., 2005 SCC(Cri) 242, in which the Apex Court has held that the Magistrate has no power to recall, review or modify the summoning order and the only course available to the accused is to file a petition under Section 482, Cr.P.C.
(3.) Learned A.G.A., on the other hand, submitted that there was no other material except the materials considered under Section 204, Cr.P.C., therefore, the prayer for discharge was nothing except a prayer for review of the summoning order and the learned Magistrate was justified in refusing to discharge the applicants and the view of the learned Magistrate finds support from the verdict of the Apex Court in the cases of Adalat Prasad and Subrahmaniam Seturaman . Learned A.G.A. further submitted that the discharge application has been rejected not only on the technical ground but also on merit.;