- (1.) This application under Section 482 Cr.P.C. has been filed for quashing the order dated 16.4.2013 passed by A.C.J.M., Agra in Case No. 220 of 2012 (Har Narayan v. Suleman) under Section 323, 504, 448 and 506 I.P.C., P.S. Sikandara, District Agra, whereby the application seeking discharge under Section 245(2) Cr.P.C. was rejected after holding the same to be not-maintainable. It appears that even on a former occasion the applicants had approached this Court seeking redressal with the prayer not very different in substance. The record reveals that another Bench of this Court vide its order dated 28.8.2012 had disposed of that application with the direction that the applicants may move an application under Section- 245(2) Cr.P.C. before the lower Court and seek their discharge. The Court concerned was thereupon directed to pass appropriate order on the discharge application in accordance with law. It seems that the applicants, armed with the direction of High Court, moved an application seeking discharge before the Court concerned but the submissions placed on behalf of the applicants did not find favour with the Court and the discharge application was rejected. Aggrieved with the aforesaid rejection the applicants have once again approached this Court with manifold grievances.
(2.) Heard the learned counsel for the applicants and learned A.G.A. for the State. I have also perused the record alongwith the impugned order passed by the lower Court on the discharge application moved under Section 245(2) Cr.P.C. The counsel for the applicants has laid maximum stress on the point and on that part of the order where the learned Magistrate has held that the discharge application moved on behalf of the applicants runs afoul of law and is not maintainable. The reasoning which seems to have prompted the lower Court to give such a finding appears to be this, that the application seeking discharge had been moved even before any evidence under Section 244 Cr.P.C. could be produced by the complainant or recorded by the Court after summoning of the accused. As the material produced by the complainant against the accused/applicants is the same on the basis of which they were summoned by the Court, no application claiming discharge can be maintainable on the same set of existing facts or material. Any discharge application may be maintainable only after some new material or evidence has been produced by the complainant under Section 244 Cr.P.C. Such seems to be the concept of law which ostensibly has led the lower Court to hold the discharge application not maintainable. The contention is that such a view is not only in the teeth of settled law laid down by the Apex Court but is also a reflection of Judicial indiscipline displayed by the learned Magistrate, According to the counsel the application under Section 245(2) Cr.P.C. was got moved on behalf of the applicant in compliance with the High Court's direction and the expression given by the lower Court about its non-maintainability smacks of judicial insubordination and impropriety both. The learned Magistrate must have decided the application on merits in the light of the submissions made on behalf of the applicants. But as the same has not been done the impugned order refusing the discharge deserves to be quashed on this ground alone and the matter should be remanded back for reconsideration of discharge application afresh.
(3.) Learned A.G.A. in rebuttal has been fair enough to concede that the view adopted by the lower Court is not in consonance with the view expressed by the Hon'ble Supreme Court and also that once in exercise of its inherent jurisdiction a direction was given by this Court the learned Magistrate was bound to hear the application on merits regardless of the contrary concept of law which he might have conjured up in his mind. But the learned A.G.A. has made a faint attempt to defend the impugned order on the ground that practically speaking there existed scarcely any ground which might have procured any kind of relief in the form of discharge of the applicants and the result would have been no very different even if the lower Court would have entertained the discharge application on merit instead of calling it not maintainable. It is more a matter of mere legal semantics which shall not yield any fruitful result and therefore there is no need to remand the matter back or to set aside the order dated 16.4.2013 whereby the application moved under Section 245(2) Cr.P.C. has been rejected.;