- (1.) MRS. Poonam Srivastava, J. Heard Sri Sunil Kumar, learned Counsel for the petitioners and learned A. G. A. for the State.
(2.) THE respondent No. 2 filed a criminal complaint case No. 2783 of 2004 (Shabana v. Mahfooz Ali and Ors.), under Sections 323, 504, 506, I. P. C. and 3/4 Dowry Prohibition Act against the petitioners. It is submitted that the respondent No. 2 deliberately and intentionally concealed the fact and did not disclose the fact of divorce. However, the Court of Judicial Magistrate I, Bulandshahar vide order dated 4-8-2004 summoned the petitioners-accused to face the trial in respect of the aforesaid offences. An application under Section 245, Cr. P. C. was moved before the Magistrate for discharging the accused, which was dismissed vide order dated 20-2-2006. This order was challenged in Criminal Revision No. 114 of 2006 before the learned Sessions Judge, Bulandshahar, which also stands dismissed vide judgment and order dated 8-2-2007. The submission on behalf of the petitioners is that the application for discharge was moved under Section 245, Cr. P. C. and the Magistrate is empowered to discharge the accused at any previous stage of the case, for reasons to be recorded in writing if he considers the charge to be groundless. Learned Counsel further submits that since the divorce was already operative between the parties, no offence under Section 498-A, I. P. C. could be made out, as relationship between husband and wife ceased to exist. However, it is admitted that no evidence under Section 244, Cr. P. C. has been recorded so far. After hearing the learned Counsel at length and going through the impugned judgment and orders, I do not agree with the submission of the learned Counsel for the petitioners. The accused were summoned after the Magistrate was satisfied that a prima facie case is made out. He had already recorded the statements under Sections 200 and 202, Cr. P. C. after institution of the complaint and, therefore, if the Magistrate did not agree with the submissions on behalf of the petitioners that there exists no reason to discharge the accused before the evidence under Section 244, Cr. P. C. is recorded, the Magistrate was well within his rights to refuse discharge. The assertions on behalf of the petitioners that the petitioner No. 1 had already divorced his wife in a Panchayat, cannot be accepted as a gospel truth. A perusal of the complaint shows that specific allegation has been made that the brothers and brother-in-law of the complainant were threatened to sign certain papers at gun point and, therefore, the assertions regarding a written divorce has yet to be decided on the basis of evidence. The Apex Court in the case of State of Bihar v. Baidnath Prasad alias Baidyanath Shah and Anr. , 2002 (1) JIC 124 (SC) : AIR 2002 SC 64, has held that an order of discharge of the accused after collecting the evidence under Section 244, Cr. P. C. can only be passed if the Magistrate is satisfied for reasons to be recorded in writing, that no case is made out, if unrebutted would warrant his conviction. In the instant case, the Magistrate refused to discharge the petitioners because he did not consider the charges to be groundless. For a ready perusal, paragraph 7 of the said judgment is quoted below : "7. An order of discharge of the accused after collecting the evidence envisaged in Section 244 of the Code can be passed only when "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. "this is the legislative edict of Section 245 of the Code. The only other exception to the said precept is that it is open to the Magistrate to discharge 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. " The Magistrate had no reason to discharge the accused at that stage as he felt that there is evidence to frame the charge he could not but dismiss the plea for a discharge. The High Court did not consider the case from the angle provided in Section 245 of the Code. As extracted above, the High Court was persuaded to discharge the accused only on the ground that "the case was pending for the last seven years. "
(3.) IN view of this, I am of the considered view that neither the Magistrate nor the learned Sessions Judge committed any error which warrants interference in exercise of powers under Article 226 of the Constitution of INdia. The writ petition lacks merit and is accordingly dismissed. Sri Sunil Kumar has lastly contended that two petitioners namely Smt. Akila wife of Rustum, petitioner No. 4 and Smt. Zamila wife of Allauddin, petitioner No. 6 are ladies. The petitioner No. 2 Rustum is father-in-law who is quite old. They will not be able to appear in the Court on each and every date.;