Vishnu Chandra Gupta, J. - (1.) THIS petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') has been filed to set aside the order dated 07.01.2011 passed by Additional Chief Judicial Magistrate, Court No. 2, Hardoi in complaint Case No. 4102 of 2011 summoning the petitioners to face the trail under Sections 452, 323, 504, 506, IPC, P.S. Pachdevra, District Hardoi and order dated 25.02.2013 passed by Additional Civil Judge (S.D)/ACJM, Hardoi in complaint Case No. 291 of 2011 (relating to same complaint case) by which the court below has rejected the prayer for discharge made under section 245(2) of Cr.P.C. Brief facts for deciding this petition are that opposite party No. 2 Smt. Mayawati moved an application under Section 156(3), Cr.P.C. This application was treated as complaint and after recording the statement under Sections 200 and 202, Cr.P.C., the court took cognizance and issued the process against the petitioners/accused persons vide order dated 07.01.2011 (Annexure 1 to the petition). For default in appearance in compliance if process issued against the petitioners, non -bailable warrants were issued. Thereafter petitioners without appearing before the court moved an application through counsel alleging it to be under Section 245 (2), Cr.P.C., for their discharge. The court vide its order dated 25.02. 2013 (Annexure -2 to this petition) after observing that accused yet not appeared and also there is no grounds to discharge the accused on the basis of material on record, dismissed the application purported to be given under section 245(2), Cr.P.C. and accused persons were again summoned by issuing non -bailable warrants to appear in the court.
(2.) I have heard the learned counsel for the petitioner and learned AGA. This Court is of the view that this petition can be disposed of at the admission stage without issuing any notice to private opposite party No. 2, the complainant. Moot question for consideration before this Court is, Whether an accused have any right to challenge the order of issuing process against him before the Magistrate without putting his appearance during trial by moving an application under Section 245(2), Cr.P.C. on the basis of material available before the Magistrate at the time of passing the order under Section 204, Cr.P.C.?
(3.) TO understand the controversy, it is necessary to keep in mind that a party cannot be allowed to do indirectly what he can do directly or cannot do at all.;