Kant Tripathi - (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). 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. 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.
(3.) THE aforesaid orders have been impugned by this petition under section 482 of the Code. 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.;