K. N. Sinha, J. - (1.) -Heard the learned counsel for the Revisionists, learned A.G.A. and perused the impugned order.
(2.) LEARNED counsel for the revisionists has submitted that revisionists were summoned for the offence under Sections 452/323/ 504/506, Indian Penal Code on the complaint filed by Km. Kriti Agrawal, the respondent No. 2. After order summoning the accused was passed on 20.7.2002, an application was moved by accused persons for recall of the above order. The revisionist's counsel also cited some decisions before the Magistrate. However, the Magistrate relying upon Ranjeet Singh and others v. State, 2000 (1) ACR 1 (FB) : 2001 (1) JIC 399 (All) dismissed the said application. It is surprising that the Judicial Magistrate did not bother to apply himself to the decisions cited before him nor passed the order according to law. The Magistrate has cited the first judgment M/s. Kunstocom Electronics (I) Pvt. Ltd. v. Gilt Pack Ltd. and another, 2002 (1) ACR 641 (SC) : 2002 SCC (Crl) 336 and came to the conclusion that according to Hon'ble Supreme Court, the Magistrate can hear an objection on the order passed under Section 204, Cr. P.C. and need not wait for the proceedings to reach to the stage under Section 245 or 246, Cr. P.C. Thereafter, he cited the above Full Bench decision and a single Judge decision of this Court and without properly dealing with the applicability of Apex Court decision appreciating both the case laws of this Court, dismissed their application. In the case of M/s. Kunstocom Electronics (I) Pvt. Ltd. (supra) Hon'ble Apex Court directed the High Court to dispose of the application under Section 482, Cr. P.C. on the ground that the party may not be asked to wait till the time of framing of the charge. In the complaint case (warrant case) the stage of framing of the charge reaches after evidence under Section 244, Cr. P.C. is recorded. The stage of discharge of the accused under Section 245 (1), Cr. P.C. arrives only after recording of such evidence which the prosecution desires to rely and provision to this effect has been laid down in Section 245 (1), Cr. P.C. Section 245 (1) Cr. P.C. lays down as under : "Section 245. When accused shall be discharged.- (1) If, upon taking all evidence referred to in Section 244, the Magistrate, considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. An exception can be read from this stage in the provisions of Section 245 (2), Cr. P.C. For ready reference the section is quoted as under. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." Section 190 (a) allows a Judicial Magistrate having jurisdiction to take cognizance of any case on a private complaint. After the cognizance is taken he is to record evidence of the complainant and his witnesses under Sections 200 and 202, Cr. P.C. If he chooses the matter to be enquired into by himself or sent it for investigation to police under Section 202, Cr. P.C. The word used in the section is investigation. It, in my opinion is not equal to an investigation as used in Section 156 (3), Cr. P.C.
(3.) ON a fulfilment of requirement of Section 202, Cr. P.C. the Magistrate has only two courses open to him. He can dismiss the complaint under Section 203, Cr. P.C. if no offence is made out, or summon the accused under Section 204, Cr. P.C. on the evidence on record disclosing an offence or offences against the accused. After the summons are issued and accused has appeared, comes into play the provision under Section 244, Cr. P.C. It requires the Magistrate to hear and to record all the evidence produced by the complainant. Section 245, Cr. P.C. now makes an entry into the scene. Section 245 (1), Cr. P.C. is plain and simple. It does not call for any clarification. The Magistrate has an unfettered power of discharge subject to fulfilment of the conditions laid down in Section 245 (1), Cr. P.C.;