Shri Narayan Shukla, J. - (1.) Heard Mr. Dilip Pandey, learned Counsel for the petitioners as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate. The petitioners have challenged the order dated 13.10.2008 passed by learned Judicial Magistrate-I, Rae Bareli in Case No. 878 of 2008 pending under section 323, 452, 504, 506, I.P.C., on the ground that petitioners' application for discharge from offence has been rejected without considering the evidence in the case as he submits that the contents of the complaint as well as the statement recorded therein are contradictory to each other and further the complainant has not been able to make out the case against the petitioners. Learned Counsel for the petitioner invites the attention of this Court towards section 245, Cr. P.C. which is reproduced as under : "245. When accused shall be discharged.-(1) If, upon taking all the 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 un-rebutted, would warrant his conviction, the Magistrate shall discharge him."
(2.) Learned Counsel for the petitioner further attacks the order on the ground that issuance of process to the petitioners is in violation of section 204 (2), Cr. P.C. as till date the prosecution failed to provide the list of witnesses. On the strength of the aforesaid provision, he submits that since there is no evidence against the petitioners, the petition is liable to be allowed as the order passed by the learned Magistrate is illegal and unsustainable. On the other hand, learned Additional Government Advocate submits that so far as compliance of section 204 (2), Cr. P.C. is concerned, it is not a mandatory provision and the list of witnesses can be provided by the prosecutor before the stage of evidence of the prosecution witness. So far as provision of section 245, Cr. P.C. is concerned, it gives power to the learned Magistrate that if upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, he shall discharge him. Section 244, Cr. P.C., relates to the evidence for prosecution, which provides as under : "244. Evidence for prosecution.-(1) When, in any warrant case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
(3.) He further invited the attention of this Court towards the order impugned, in which it is pointed out that till date, the petitioners have not surrenders before the Court concerned, no stage of proceeding by the Magistrate for recording the statement of prosecution has reached before the Trial Court, therefore, without any evidence before the Court concerned, it is not reasonable for him to arrive at the conclusion that the petitioners are liable to be discharged from offence. After perusal of the aforesaid provisions, I find force in the submission of learned Additional Government Advocate. Therefore, without interfering into the merit of the order impugned, I hereby provide that if the petitioners surrender before the Court concerned alongwith application of bail, the same shall be considered in accordance with law and thereafter, the learned Magistrate shall proceed for evidence and at the stage, the learned Magistrate can call upon the witness of prosecution side and after evidence, may arrive at the conclusion as has been provided under section 245, Cr. P.C., that the petitioners are liable to be discharged from offence. He can pass a fresh order. With a aforesaid observation, the petition is dismissed. Petition dismissed;