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DISTRICT: JORHAT

IN THE COURT OF ADDL. SESSIONS JUDGE, JORHAT

PRESENT: Smt P. Kataki, Additional Sessions Judge, Jorhat

Crl. Revision No. 26 of 2016

(This Criminal Revision has been filed under Section 397 of the Code of Criminal Procedure, 1973 challenging the order dated 23.02.2016 passed by the Learned

CJM , Jorhat, Shri Darak Ullah in CR Case No.117/2010)

Shri Jayanta Dutta S/o Shri Horen Dutta R/o Garmur, Jorhat

PO: JEC, PS: Jorhat District: Jorhat, Assam …Revision Petitioner Versus

1. The State of Assam

Represented by the Public Prosecutor, Jorhat

2. Shri Sanjay Malpani C/O Hanuman Timbers R/o New Balibat , Jorhat

PO & PS: Jorhat Assam

3. Shri Hari Baheti C/O SSB Enterprise President Hotel Complex R/o Dehabora Chuk

PO &PS: Jorhat District: Jorhat Assam

4. Shri Purnananda Gogoi 2nd Officer (SI of Police)

Dibrugarh Police Station, Dibrugarh R/o Shantipur, Titabor ChariAli District-Jorhat, Assam

5. Shri Rupeswar Borgohain LK Path , Na-Ali

Jorhat, Assam ……Opposite Parties

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Appearance:

For the Revision Petitioner: Shri Rintu Goswami, Learned Advocate

For the Opposite Party No.1/State: Shri Anjan Phukan, Learned Addl. PP

For the Opposite Party Nos.2&3: Shri Purushottam Didwania, Learned Advocate

For the Opposite Party Nos.4&5: Shri R. Baruah, Learned Advocate

Date of Argument : 18.01.2020

Date of Judgment : 01.02.2020

JUDGMENT

1. This Criminal Revision has been preferred under Section 397 of the Code of Criminal Procedure, 1973 against the impugned order dated 23.02.2016

passed by the Learned CJM , Jorhat, Shri Darak Ullah in CR Case No.117/2010 whereby the Learned CJM, Jorhat held that the Revision Petitioner/Complainant abused the process of the Court in order to delay the proceeding and to harass

the accused persons and therefore, considered that the charges leveled against the accused persons are groundless and discharged the Opposite Party Nos. 2-5/accused persons from proceedings in CR Case No.117/2010 as per provision of

Section 245(2) CrPC. 2. Before taking the grounds into consideration as taken by the Revision Petitioner in the present Petition, it would be appropriate for me to state in brief

the facts leading to the present Petition: (a) The Revision Petitioner Shri Jayanta Dutta as Complainant filed a written

complaint under Sections 165,166,167,294,342,347,348,386 r/w 34 IPC before the Court of Learned CJM, Jorhat against Shri Hari Baheti, Shri Sanjay Malpani, Police constable Shri Jyoti Gogoi and Shri Atul Saikia, the Officer In-Charge Shri

Rupeswar Borgohain and Sub-inspector Shri Purnananda Gogoi of Jorhat Police Station as accused persons. The brief allegations as revealed from the Complaint is that on 02.04.2010, the police constables Shri Jyoti Gogoi and Shri Atul Saikia

of the Jorhat Police Station forcibly took the Complainant to the police station and in the police station kept the Complainant confined and criminally intimidated him and with the help of the accused officer-in charge Shri Rupeswar

Borgohain and Sub-Inspector Shri Purnanada Gogoi , the accused Shri Hari Baheti and Shri Sanjay Malpani extorted an amount of Rs.50,000/-(Rupees Fifty thousand only) from and also four cheque leaves for Rs.42,500/-(Rupees Forty

Two thousand five hundred only). (b) Vide order dated 13.04.2010, the said complaint was registered as CR

Case No.117/2010 and the matter was fixed for enquiry on 22.04.2010. (c) Vide order dated 22.04.2010, the Learned CJM, Jorhat after examining

the Complainant and his witness, fixed the matter for initial deposition on 27.04.2010.

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(d) After perusal of the Complaint and the initial deposition of the Complainant and his three witnesses, the Learned CJM, Jorhat found that were

sufficient ground for proceeding against the OP Nos.2-5 /accused Shri Hari Baheti, Shri Sanjay Malpani, the Officer In-Charge Shri Rupeswar Borgohain and Sub-inspector Shri Purnananda Gogoi of Jorhat Police under Sections 342,

506,384 r/w 34 IPC. However, Police constables Shri Jyoti Gogoi and Shri Atul Saikia were found not to be guilty of committing any offence. Vide order dated 07.05.2010, learned CJM, Jorhat took cognizance of the offence under Sections

342, 506,384 r/w 34 of the IPC against OP Nos.2-5 /accused Shri Hari Baheti, Shri Sanjay Malpani, Shri Rupeswar Borgohain and Shri Purnananda Gogoi and summoned all the accused persons and fixed the matter for appearance of the

accused persons on 20.05.2010. (e) After appearance of the accused persons, vide order dated 20.07.2010, the Learned CJM, Jorhat fixed the matter for evidence before charge on

19.08.2010. However, before evidence before charge could be recorded, vide order dated 16.08.2010 passed in Criminal Misc. Case No.216/2010, the Hon’ble Sessions Judge, Jorhat stayed further proceedings of the case and called for

records of the case. Finally, vide order dated 25.01.2011, the Hon’ble Sessions Judge, Jorhat directed the Learned CJM, Jorhat to transfer the case to the Court of the Learned Addl. CJM, Jorhat for trial.

(f) On 10.02.2011, the matter was listed before the Learned Addl. CJM, Jorhat and after going through the records of the case, the matter was fixed for

evidence before charge on 11.03.2011. (g) On 11.03.2011, 18.04.2011, 04.06.2011, 04.07.2011, 30.07.2011,

01.09.2011, 10.10.2011, 16.11.2011, 16.12.2011, 19.01.2012, 21.02.2012, 20.02.2012, 18.04.2012, 19.05.2012, 19.05.2012 and 30.05.2012 i.e. for more than 14 months, the matter was at the stage of evidence before charge,

however, the evidence could not be recorded between 11.03.2011 and 30.05.2012 as the matter was lying in the vacant Court of Learned Addl. CJM, Jorhat .

(h) Vide order dated 09.07.2012, the Learned CJM, Jorhat transferred the matter to the Court of Learned SDJM (J), Jorhat for disposal. Thereafter, the

matter was kept for evidence before charge on 20.07.2012, 28.08.2012, 01.10.2012 and 26.10.2012.

(i) On 26.10.2012, the Revision Petitioner/Complainant filed a Petition No. 4784 praying for (i) calling records of four cases under Section 138 of the NI Act (CR 246/10, CR 251/10, CR 254/10 and CR 265/10) (ii) calling records of all GD Entry Book made on 02.04.2010 at Jorhat Police Station and (iii) allowing him to

exhibit the same in CR Case No.117/2010. Vide order dated 27.11.2012, the Learned Trial Court kept the matter for objection on the said Petition, if any, on behalf of the accused persons and fixed 02.01.2013 for objection. After filing of

written objections by the accused persons, vide order dated 28.01.2013, the matter was fixed for objection hearing on 20.02.2013. On 20.02.2013 after hearing arguments of learned counsels for both the parties, the Learned Trial

Court fixed the matter for order on Petition No. 4784 on 11.03.2013.

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(j) Vide order dated 11.03.2013, the Learned Trial Court rejected Petition No. 4784 with observation that it was open to the Revision

Petitioner/Complainant to exhibit the “ compared with original “ copies of those four cheques in CR Case No.117/2010 and obtain the certified copies of those cheques and file them in the instant case. The matter was kept for evidence

before charge on 21.03.2013. (k) On 21.03.2013, the evidence before charge could not be recorded as the

Complainant was absent with steps and the matter was fixed on 30.04.2013. On 30.04.2013, the matter could not be taken up as the Learned Trial Magistrate was transferred and the matter was fixed on 10.06.2013. On 10.06.2013, the

matter was fixed for evidence before charge on 31.07.2013. Thereafter, on 31.07.2013, 01.10.2013, 25.11.2013, 24.12.2013, the evidence before charge could not be recorded as the Revision Petitioner/Complainant was absent with steps and vide order dated 24.12.2013, the matter was once again fixed for

recording evidence before charge on 29.01.2014. (l) On 29.01.2014, the Revision Petitioner /Complainant filed Petition No.

353 praying for calling of (i) case record of CR No.246/10, 251/10, 254/10 and 265/10 alongwith all the relevant documents in the file(ii) the GD Entry dated 02.04.2010 from the OC , Jorhat Police Station and (iii) the letter/document

which is submitted before the Branch Manager, UBI, Tarajan Branch, Jorhat in connection with account No. 0519050011723 standing in the name of the accused. Further, the Complainant also prayed for directing the accused Shri

Purnananda Gogoi to give specimen of his handwriting so as to enable him to send it to FSL to compare it with a letter written by him. After hearing the learned counsel for both the sides, the Learned Trial Court passed order in

Petition No. 353 on 17.02.2014 and fixed the matter for evidence before charge on 15.03.2014.

(m) Thereafter, on 15.03.2014, 05.05.2014, 06.06.2014, 28.07.2014, 28.08.2014, 13.10.2014, 31.10.2014, 16.12.2014 and 29.01.2015, the evidence before charge could not be recorded as the Revision Petitioner/Complainant was

absent with steps and vide order dated 29.01.2015, the matter was once again fixed for recording evidence before charge on 17.03.2015 but on the said day, the evidence before charge could not be recorded as Shri Indrajit Kakoti,

learned counsel for the Complainant was out of station on account of personal work and the matter was fixed on 21.04.2015.

(n) On 21.04.2015, 22.06.2015 and 27.08.2015, the matter could not be taken up as the Learned Trial Magistrate was on leave and the matter was posted for evidence before charge on 17.10.2015.

(o) On 17.10.2015, the Complainant was absent with steps as he had to visit Guwahati for unavoidable reasons as stated in his Petition No. 1930/15 and the matter was posted for evidence before charge on 27.11.2015.

(p) On 27.11.2015, the Learned Trial Magistrate was on leave and the matter was posted on 28.01.2016 for evidence before charge. However, again on

28.01.2016, the matter could not be taken up as the Learned Trial Magistrate was on CC Leave and the matter was posted for evidence before charge on 23.02.2016.

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(q) On 23.02.2016, Petition No. 491 filed on behalf of the Complainant

stating inter-alia that the witnesses had not come forward unless they got summons from the Court and the Complainant may be allowed to take steps on the witnesses of the case. Two more petitions were also filed on behalf of the

Complainant namely Petition No. 492 stating that the Complainant went to Guwahati in connection with his contract work and praying for another date of appearance of the Complainant and Petition No.493 praying for calling of records

of CR 251/2010, CR 265/2010, CR 254/2010 and CR246/2010 from the Court of Addl. CJM, Jorhat at the time of taking evidence in CR 117/2010. Further one more Petition No. 495 was filed on behalf of Shri Rintu Goswami, Learned

Advocate of the Jorhat Bar who also filed his hazira in the case as a witness stating that he is the witness for the Complainant in CR 117/2010 and was informed by the Complainant to adduce evidence on the said day itself over phone and that he is ready to adduce evidence in the case.

(r) Vide order dated 23.02.2016 passed in CR Case No.117/2010, the Learned CJM, Jorhat Shri Darak Ullah held that the Revision

Petitioner/Complainant abused the process of the Court in order to delay the proceeding and to harass the accused persons and therefore, the Learned Trial Court considered that the charges leveled against the accused persons are

groundless and discharged the Opposite Party Nos. 2-5/accused persons from proceedings in CR Case No.117/2010 as per provision of Section 245(2) CrPC. In the later part of the order dated 23.02.2016, though the Learned Trial Court

recorded that hariza was filed by Shri Rintu Goswami, Advocate as witness of the Complainant, however, as the Court already dismissed the proceedings, and thereafter became functus officio, the Petition filed after passing of the order of

dismissal could not be considered. 3. The Learned CJM, Jorhat while passing the impugned order dated

23.02.2016 inter-alia observed as follows:-

“…….Today also the Complainant failed to get ready to adduce evidence of himself and his witnesses to take the help of the CR cases, referred to above. Perusal of record also reveals that cognizance of the offences were taken on 07.05.2010 and the evidence before charge has not been recorded since 19.08.2010 which clearly shows that the Complainant is not interested to substantiate his allegations leveled against the accused persons in the Complaint. Therefore, I have come to the conclusion that he is not interested to adduce the evidence to satisfy this Court to come to the opinion that there is ground for presuming that the accused persons have committed an offence triable by this Court. Rather for the reasons, referred to above, this Court has come to a conclusion that in spite of giving enormous opportunity i.e. for a period of more than five years, the Complainant side has failed to bring witnesses to proceed with this case. The materials on record, as discussed above, clearly reveals that the complainant abused the process of the Court in order to delay the proceeding and to harass the accused persons and therefore, this Court considers that the charges leveled against the accused persons namely, Rupeswar Buragohain, Purnananda Gogoi , Hari Baheti and Sanjay Malpani are groundless and hence , all the above named accused

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persons are discharged as per Section 245(2) of CrPC from the instant proceeding. The case is accordingly disposed of.”

4. The Revision Petitioner has challenged the impugned order on a number of grounds as stated in the memo of appeal.

5. I have perused the materials on record and heard the contentions put

forth by the Learned counsels for both the parties.

6. Shri Rintu Goswami, Learned counsel appearing for the Revision Petitioner/Complainant submitted that the impugned order dated 23.02.2016 passed by the Learned Trial Court is not in accordance with the provisions of Section 245(2) of CrPC as the Learned Trial Court dismissed the Complaint for

non –appearance of the Complainant on the said date when the witness of the Complainant was present and ready to examine himself. In the facts and circumstances of the present case, the Learned counsel prayed that this Court

may set aside the order dated 23.02.2016 passed by the learned CJM, Jorhat in CR Case No.117/2010.

7. Per contra, Shri Shri Purushottam Didwania, Learned counsel appearing for Opposite Party Nos. 2 and 3 and Shri R. Baruah, Learned counsel appearing

for Opposite Party Nos.4 and 5 submitted that the case is pending for more than five years at the stage of evidence before charge and inspite of giving enormous opportunity i.e. for a period of more than five years, the Complainant side failed

to bring witnesses to proceed with the case. It was further argued that the materials on record clearly reveals that the complainant abused the process of the Court in order to delay the proceeding and to harass the accused persons

and in the said circumstances, the Learned Trial Court rightly discharged the Opposite Party Nos. 2-5 by exercising powers under Section 245(2) CrPC. Therefore, the learned counsels for the Opposite Party Nos.2-5 submitted that

the revision Petition may be dismissed and the impugned order dated 23.02.2016 may be upheld.

POINT FOR DETERMINATION

8. After considering the material available on record and also the submissions made by the learned counsels for both the parties, the point for determination which arises in this Revision Petition is “Whether the order dated

dated 23.02.2016 passed by the Learned CJM, Jorhat, Shri Darak Ullah in CR Case No.117/2010 warrants interference by this Court?”

DECISION AND REASON THEREOF:

9. Sections 200 to 203 CrPC in Chapter XV provides for Complaints to Magistrates and Sections 204 to 210 CrPC in Chapter XVI deals with the

procedure after commencement of proceedings before Magistrate. When a Magistrate takes cognizance of an offence upon a complaint under Section 190 (1)(a) of CrPC, he has to record the statement of the complainant and the

witnesses, if any, under Section 200 of CrPC except in cases where the complaint has been filed by a Court or a public servant while acting or purporting to act in

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discharge of his official duties or the complaint is made over to another Magistrate under Section 192 CrPC. The Magistrate has further power

under Section 202 of CrPC to postpone issue of the process to the accused and to hold an inquiry himself or direct it to be held by some other person. If the case is not exclusively triable by the Court of Session, the Magistrate has further

power even to direct the police for the investigation. After examining the complainant and his witnesses, if any, under Section 200 of CrPC or after holding the inquiry under Section 202 of CrPC, as the case may be, the Magistrate passes

orders under Section 203 CrPC or Section 204 of CrPC. If the Magistrate finds no sufficient ground for proceeding with the complaint, he shall dismiss the complaint under Section 203 of CrPC. On the other hand, if the Magistrate forms

the opinion that there is sufficient ground for proceeding with the complaint, he shall issue summons or a warrant, as the case may be, against the accused. Therefore, on and from the date of filing of the complaint and taking of cognizance by the Magistrate under Section 190(1)(a) of CrPC till the issue of

process to the accused under Section 204 of CrPC, there is no participation of the accused. The accused comes into picture as and when a process is issued to him

under Section 204 of CrPC.

10. The Complaint cases triable by Magistrates can be divided into two categories namely the first category of such cases is the complaints triable as

warrant cases (Chapter XIX Sections 238 CrPC to Section 250 CrPC) and the second category is the complaints which are triable as summons cases ( Chapter XX Section 251 CrPC to Section 259 CrPC). Chapter XIX Sections 238 CrPC to

Section 250 CrPC which deals with trial of Warrant cases by Magistrates is further divided into two categories namely Part A Section 238 to Section 243 CrPC deals with cases instituted on a police report and Part B Section 244 CrPC to Section

247 CrPC deals with cases instituted otherwise than on police report.

11. The present case is admittedly triable as a warrant case instituted

otherwise than on a police report, therefore, the provisions contained in Sections 244 and 245 of Part B of Chapter XIX CrPC seem to be relevant for considering

the controversy involved in the present matter.

12. Section 244 CrPC which deals with evidence for prosecution reads as

under:

“(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.”

13. From a perusal of provision of Section 244 CrPC , it is seen that when the accused appears or is brought before a Magistrate in pursuance of the process issued under Section 204 of the Code, the first requirement under Section 244(1)

CrPC is that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the complaint. Under Section 244(2) CrPC if a prayer for summoning any witness is made by the Complainant,

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the Magistrate may summon the witness either to give evidence or to produce a document or thing. At the pre-summoning stage, the Magistrate is only required

to weigh whether or not there was any sufficient ground for proceeding. However, at the stage of framing of charge, the evidence and the material on record is to be weighted differently as at that stage the Court has to scrutinize

the material on record to come to a conclusion if any case was made out against

the accused which if unrebutted would warrant his conviction.

14. Section 245 CrPC which provides two situations when accused shall be

discharged reads as under:

“(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 unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(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. “

15. A bare reading of Section 245(1) of CrPC would reveal that the said provision empowers the Magistrate to discharge the accused and that power is exercisable only after taking all the evidence referred to in Section 244 of CrPC.

If upon considering such evidence the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant of conviction of the accused, he shall discharge the accused. In other words, the

accused has to be discharged in a case where the evidence collected under Section 244 of CrPC, if unrebutted, makes out no case against the accused and his conviction would not be possible on that evidence. Therefore, the

discharge of the accused under Section 245 (1) of CrPC can be passed only after taking all the evidence referred to in Section 244 of CrPC and not before that. As such before discharging the accused under Section 245 (1) of CrPC, it is

obligatory for the Magistrate to take all such evidence as may be produced by

the Complainant in support of the prosecution.

16. However, there is an exception to this general principle and that is contained in Section 245 (2) CrPC , which provides that the Magistrate may discharge an accused “at any previous stage of the case” if he considers the

charge to be groundless. To put it otherwise, the discharge of the accused under Section 245 (2) of CrPC can be made only when the Magistrate finds the charge to be groundless at any previous stage of the case, i.e. before conclusion

of the evidence under Section 244 of CrPC. Another important aspect of the matter is that the Magistrate has to record reasons for discharging the accused

under Section 245 (1) or Section 245 (2) of CrPC.

17. In Ajoy Kumar Ghose Vs. State of Jharkhand and another[ 2009 (14) SCC 115], the Hon’ble Apex Court interpreted the meaning of the expression "at any previous stage of the case" contained in Section 245 (2) and

held that the “previous stage” would obviously be before the evidence of the prosecution under Section 244 (1) of the Code is completed or any stage prior to

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that and such stages would be under Section 200 to Section 204 of CrPC in the

following words:

"The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C.

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Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge."

18. Thus, from the interpretation of the expression “at any previous stage of the case” as laid down by the Hon’ble Apex Court in the case of Ajay Kumar Ghosh ( supra) , it clear that, if the prosecution evidence under Section 244 (1)of

CrPC has concluded, the question of invoking the provisions of Section 245 (2) of CrPC does not arise and in that situation the discharge prayer can be considered according to the parameters laid down in Section 245 (1) of CrPC. But the

position would be different when the prosecution evidence under Section 244 of CrPC is yet to begin or has already begun but not concluded. Therefore, the expression "at any previous stage of the case" contained in Section 245(2) of CrPC means the stage at the beginning of the proceeding under Section 244 of

CrPC on appearance of the accused or even before appearance of the accused at the stages under Sections 200 to 204 of CrPC. On and from the commencement of the prosecution evidence under Section 244 CrPC and before its conclusion,

also comes within the category of "previous stage of the case" as provided in Section 245 (2) of CrPC. In other words, if the prosecution evidence begins under Section 244 of CrPC even then the power of discharge under Section

245(2) of CrPC can be invoked provided the prosecution evidence under Section 244 CrPC is not complete till the date of invocation of such power. Thus, it is clear from the provision of Section 245 of CrPC that even though the case was

listed for recording of pre-charge evidence, the Magistrate has the option to

invoke the provision of Section 245(2) CrPC.

19. However, it is seen that even though Section 245(2) of CrPC empowers the Magistrate to discharge the accused at any previous stage of the case , if he considers the charge to be groundless, the meaning the term” groundless” as

used in Section 245(2) of CrPC has not been defined in the Code.

20. In Umesh @ Banti & Others Vs State Of UP & Anr.[ Application

No. 25300 of 2012], the Hon’ble High Court of Judicature at Allahabad while examining the meaning of the term “ groundless” in the context of Section 245(2) CrPC observed as under:

“The word ''groundless' under the Black's Law Dictionary is synonymous to ''frivolous'. It defines that a pleading which is clearly insufficient on its face and does not controvert the material point of the opposite pleading, and is presumably interposed for mere purpose of delay or to embarrass the opponent. The charges, if found, groundless must satisfy on the basis of which the accused is being charged, is deficient or insufficient on the face of it, as it is presumably with little prospect of success brought to embarrass upon. Once it appears from the complaint and the statement recorded that there is deficiency in the material facts, which constitute ingredients of substantive offence, charges can be held to be frivolous. It also contemplates that if the facts controvert the material ingredients of the offence and is presumably interposed for mere purpose of delay or to embarrass the accused. A groundless charge has a little prospect of success which is often brought to embarrass or annoy the accused. While

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framing charges under section 245(2) Cr.P.C. the Magistrate is to examine the contents of the complaint and the statement so recorded, and if he finds that the intended purpose of filing the prosecution lacks material facts that constitute ingredients of substantive offence and where the intention is to embarrass the other side to seek revenge against him, he can discharge the accused. There is additional burden on the Magistrate to examine this question by not looking only to the complaint and the statements of the witnesses appended thereto but the intended purpose of lodging such a prosecution against the accused. However, there has to be sufficient material on the basis of which such a conclusion can be drawn.

While considering the question of discharge, he is to examine the complainant and evidence, what is required to be seen by the Magistrate is that even if the allegations are uncontroverted, it would not entail conviction of the accused. While recording its findings that the charges are groundless not only the facts enumerated above are required to be seen but the probability and credibility of the story, as revealed, is also to be considered. The facts may constitute offence but if the conduct is improbable, the Magistrate has power to consider this fact. The Legislature has used the word ''groundless' intentionally with a view to ensure that the area of consideration for the Magistrate is not only to look into the facts which may constitute an offence but also probability of the story which is reflected in the complaint. The court should not proceed to frame charges mechanically. It is trite law that the order framing the charges substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 or in the complaint, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.

From the conjoined reading of the aforementioned provisions, the additional responsibility has been given to the Magistrate to examine the private complaint accompanied by the evidence before framing the charges. While framing the charges on a Police report which is confined to the material collected during the course of investigation, if he finds that there is ground for presuming that the accused has committed the offence, he can frame charges. If he finds that no case against the accused has been made out, if unrebutted, that would not warrant his conviction, he can discharge the accused. In the cases based upon private complaint, the Magistrate before framing charges has to hear the prosecution and allow them to lead evidence in support thereto. Merely on the basis of complaint, he cannot proceed to frame charges. The power to discharge under this provision is confined only where he finds that after taking all the evidence recorded under section 244 Cr.P.C. he considers that no case against the accused is made out, which would warrant his conviction, he can discharge him. Section 246(1)Cr.P.C. provides that when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for

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presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. Section 246 Cr.P.C. contemplates that charge can be framed only where evidence under section 244 has been taken by the Magistrate. The expression at any previous stage of the case would not mean that the Magistrate has power to frame charge without taking any evidence under section 244 Cr.P.C. At any stage would reflect that the Magistrate is not required to examine all the witnesses under section 244 Cr.P.C. which the prosecution intends to produce. If on taking some evidence, it is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame charges in writing. Any other interpretation of the rules would run contrary to the scheme of Chapter XIX relating to warrant cases. The expression that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced implies that if the Magistrate is satisfied that it is not necessary to examine all the evidence in order to frame charge and he is satisfied that there is sufficient evidence on record for presuming that the accused has committed an offence, he may frame the charge. The power to frame charge has to follow only after evidence has been recorded under section 244 Cr.P.C.

What is clearly emerges is that it is not necessary for the Magistrate to examine all the evidence produced but the Magistrate may proceed to frame charge if there is some evidence on record. The interpretation of 'at any stage' would not mean stage prior to section 244 Cr.P.C.

While considering the application under section 245(2) Cr.P.C. the Magistrate can discharge a person at any previous stage if he considers the charges to be groundless.”

21. Further, it is seen that the circumstances under which the Magistrate come to the conclusion that the charge is groundless under Section 245(2) of

CrPC may be several and it is not possible to given an exhaustive list of the same. Considering the circumstances in which the charge can be considered as groundless under Section 245(2) of CrPC, in Suleman &Ors. Vs State Of UP &

Anr. [Application No. 25300 of 2012], the Hon’ble High Court of Judicature at Allahabad held as under:

“Section 245(1) of the Code should not act as a trammel on the judicial ankles of the Court, and if, there are circumstances which justify or call forth the discharge of the accused, the Magistrate should not feel any constraint or to be under any procedural compulsion to carry on the proceedings against the accused even though, for reasons to be recorded, he has come to the conclusion that the charge is groundless. The circumstances which may impel the court to have such an opinion may be several and it is not possible to given an exhaustive list of the same but for the purposes of illustration it may be said that there may be a case where a legal sanction is required before a court may proceed to take cognizance of the case. If there is a case like that then simply because the court has already summoned the accused u/s 204 Cr.P.C. in the ignorance of the fact of any such illegal requirement the court should

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not carry on with the illegality and should not feel the compulsion to still continue and perpetuate the proceedings which are non-est in the eyes of law in the absence of the requisite sanction or which may be called a nullity in the judicial estimate. There may also be a case where an accused has already been acquitted under the same charge and because of malice or mischief or may be due to clerical inadvertence he has again been made to face the criminal trial under the same charge or for having committed the same offence for which he has already been tried and adjudicated upon by a court of competent jurisdiction. Shall it not then be very much within the rights of the accused to raise the same objection and bring on record the judicial judgment passed in his favour in an earlier proceedings for having committed the same offence against the same person at the same point of time and place! If the earlier judgment has already attained finality or if the earlier proceedings have also been lawfully conducted by a competent court can an accused be tried and prosecuted for the same offence twice ? And if such a fact is brought forth to the notice of the court who has summoned the same accused u/s 204 Cr.P.C. should the Magistrate be still under compulsion to go on with the proceedings and complete the process of recording all the evidence which the complainant may choose to produce u/s 245 Cr.P.C. and should subject the accused to continue with the ordeal of the trial till the stage of discharge u/s 245(1) of the Code arrives even though the entire proceedings going on against him are in the teeth of statutory prohibition enacted by legislation! There may be many more situations of the same or similar kind. There may be cases where after summoning of the accused it is brought to the notice of the court that some Apex Court's decision or judgment either with regard to a similar matter has been pronounced or some judicial verdict by the High Court or the Hon'ble Apex Court has been given with regard to the issues involved in the proceedings in question which are of conclusive nature. Shall it not be the bounden duty of the trial court to show deference to the higher court's decision and give a relook to the validity of the summoning order passed by itself which has lost the ground of its legitimacy in the wake of the conclusive adjudication done by the higher court. In fact there may be many such situations where the cause of justice will call forth a second look to be given to the summoning order already passed by the court and it is in order to prove equal to such exigencies and situations that Section-245(2) Cr.P.C. has been enacted. If an accused, once summoned, must wait for his discharge till the stage to seek discharge u/s 245(1) Cr.P.C. arrives and the complainant has exhausted his opportunity to produce all the evidence which he may chose to produce u/s 244 of the Code then the very introduction or enactment of 245(2) of the Code will become almost redundant. It is true that the probability or the chances or the situations which may justify the discharge u/s 245(2) Cr.P.C. soon after summoning of the accused u/s 204 Cr.P.C. without any further evidence being recorded are not very great or wide and the chances of the accused to succeed in getting discharged are often not much but the degree of unlikelihood to get discharged under Section-245(2) Cr.P.C. has nothing to do with the legal maintainability of such an application which seeks discharge under the same section. If an application can be moved under law it is maintainable; whether it is to be allowed or not is a different question. If an application is not maintainable

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it means it does not lie and the applicant has no legal right to move the same or the court may not have the legal right to entertain the same. Innumerable applications are disallowed every day not because they are not maintainable but because there are no good grounds to allow them.”

22. The aforesaid view of the Hon’ble Allahabad High Court as enunciated in the case of Suleman (supra) also finds support from Hon’ble the Apex Court's

decision given in Cricket Association Bengal & Ors. Vs. State of West

Bengal & Ors. [1971 (3) SCC 239] wherein it has been held as under:

“Assuming that the Division Bench is right in holding that the discharge under s. 204(3) Cr P.C. is not justified, we will proceed on the basis that the said order is one of discharge under s. 253(2). We have already referred earlier to the reasons given by the complainant in his application seeking permission to withdraw the complaint as well as to the reasons given by the Magistrate for discharging the accused. There is no controversy that at the material time, the Sen Commission was inquiring into the identical matter which was the subject of the criminal complaint. Under those circumstances, it cannot be said that the discharge of the accused by the Magistrate is either illegal or not justified."

23. The view expressed in the aforesaid judicial pronouncements leaves no room of doubt in the Court's mind that the Magistrate does have the power to

discharge the accused even before recording any further evidence after summoning of the accused to face the trial. However, from the judicial pronouncements as stated hereinabove, it appears that the power to discharge

the accused at any previous stage of the case under Section 245(2) of CrPC , if the Magistrate considers the charge to be groundless is provided primarily to deal with a situation where proceeding with the case is unwarranted on technical

grounds even though cases where the Complainant abused the process of the Court in order to delay the proceedings and to embarrass the accused may also

be a consideration for discharging the accused at any previous stage of the case.

24. However, whether the charge is groundless or not will depend upon case to case and the varying facts and circumstances of each case as to when the

Magistrate may discharge an accused by exercising powers under Section 245(2)

of CrPC.

25. Having discussed the legal position relating to discharge of an accused under Section 245(2) CrPC, let me now consider the material on record in the instant case and see whether discharging the accused persons without affording

an opportunity to the Complainant to lead pre- charge evidence was proper in

the light of the facts of the case.

26. In the instant case, though the fixed the matter for evidence before charge on 19.08.2010, however, before evidence before charge could be recorded, vide order dated 16.08.2010 passed in Criminal Misc. Case No.216/2010, the Hon’ble Sessions Judge, Jorhat stayed further proceedings of

the case and called for records of the case and finally, vide order dated 25.01.2011, the Hon’ble Sessions Judge, Jorhat directed the Learned CJM, Jorhat to transfer the case to the Court of the Learned Addl. CJM, Jorhat for trial. On

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11.03.2011, 18.04.2011, 04.06.2011, 04.07.2011, 30.07.2011, 01.09.2011, 10.10.2011, 16.11.2011, 16.12.2011, 19.01.2012, 21.02.2012, 20.02.2012,

18.04.2012, 19.05.2012, 19.05.2012 and 30.05.2012 i.e. for more than 14 months, the matter was at the stage of evidence before charge, however, the evidence could not be recorded between 11.03.2011 and 30.05.2012 as the

matter was lying in the vacant Court of Learned Addl. CJM, Jorhat . On 30.04.2013, the matter could not be taken up as the Learned Trial Magistrate was transferred. Again on 21.04.2015, 22.06.2015, 27.08.2015, 27.11.2015 and

28.01.2016, the matter could not be taken up as the Learned Trial Magistrate was on leave. From 26.10.2012 and 11.03.2013, the evidence before charge could not be recorded due to pendency of Petition No. 4784. From 29.01.2014 to

17.02.2014, the evidence before charge could not be recorded due to pendency of Petition No. 353. Though on 20.07.2012, 28.08.2012, 01.10.2012, 21.03.2013, 10.06.2013, 31.07.2013, 01.10.2013, 25.11.2013, 24.12.2013, 30.04.2013, 29.01.2014, 15.03.2014, 05.05.2014, 06.06.2014, 28.07.2014, 28.08.2014,

13.10.2014, 31.10.2014, 16.12.2014 and 29.01.2015, 17.10.2015, the evidence before charge could not be recorded as the Complainant was absent with steps, however, the delay in recording the pre-evidence charge since 19.08.2010 i.e. for

a period of more than five years cannot be solely attributed to the Revision Petitioner/Complainant. Section 245 (2) CrPC does not mean that in situations where the Complainant could not examine himself or his witnesses for valid

reasons, the Magistrate is empowered to close the prosecution and discharge the accused persons.

27. Moreover, this Court is also of the considered opinion that the impugned order is also not in accordance with the provisions of Section 245 (2) of CrPC in as much as on 23.02.2016, Petition No. 492 was filed on behalf of the

Complainant stating that the Complainant went to Guwahati in connection with his contract work and praying for another date of appearance of the Complainant and further one more Petition No. 495 was filed on behalf of Shri Rintu Goswami,

Learned Advocate of the Jorhat Bar who also filed his hazira in the case as a witness stating that he is the witness for the Complainant in CR 117/2010 and was informed by the Complainant to adduce evidence on the said day itself over

phone and that he is ready to adduce evidence in the case. However, the Learned Trial Court on one hand rejected the Petition for exemption from appearance of the Complainant and on the other recorded that in spite of giving

enormous opportunity for a period of more than 5 years, the Complainant side failed to bring witnesses to proceed with the case which clearly reveals that the Complainant abused the process of the Court in order to delay the proceeding

and to harass the accused persons and therefore, the Learned Trial Court considered that the charges leveled against the accused persons are groundless and discharged the Opposite Party Nos. 2-5/accused persons from proceedings in CR Case No.117/2010 as per provision of Section 245(2) CrPC.

28. Section 245(2) of CrPC does not empower the Magistrate to close the prosecution against the will of the Complainant who is prepared to proceed with

the prosecution by giving evidence and also examining the witnesses. Merely because the Complainant was absent, it does not mean that the Complainant failed to bring witnesses to proceed with the case or the Complainant is not

prepared to examine his witnesses or that the witness present is not willing to examine himself. It is only after the evidence lead by the Complainant and also the evidence adduced by his witnesses is found to be unsatisfactory or does not

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make out any prima facie case to proceed further, the Magistrate has to discharge the accused. This is not a case where the Complainant did not want to

lead his pre-charge evidence by examining his witnesses. In the instant case, Petition No. 495 filed on behalf of Shri Rintu Goswami, Learned Advocate of the Jorhat Bar and his hazira in the case as a witness clearly shows that the

Complainant was ready to adduce the pre- charge evidence of his witness in the case. It appears that the Learned Trial Court got carried away by the fact that the matter was pending at the stage of evidence before charge for more than

five years without appreciating that the Complainant was not solely to blame for the same and was ready to examine his witness.

29. The Revisional Court while dealing with a petition u/s 397 CrPC. is to

confine itself to the examination of the correctness, legality or propriety of the impugned finding, sentence or order. Merely because a different view is possible on a re-appreciation of the evidence, interference by the Revisional Court is not permissible. However, where a finding of fact, affecting the impugned decision, is

not based on evidence or materials of the parties in proper perspective, the Revisional Court is possessed of ample discretion to interfere with the order under challenge.

30. As discussed hereinabove, the learned CJM, Jorhat failed to consider the materials on record in its correct perspective, thereby occasioning a failure of

justice by discharging the Opposite Party Nos. 2-5/accused persons from proceedings in CR Case No.117/2010 as per provision of Section 245(2) CrPC. In the circumstances this Court is of the considered opinion that by not affording an

opportunity to the Complainant to explain and establish his case by examining his witnesses for the purpose of framing of charge, a grave prejudice has occasioned to the Revision Petitioner/Complainant.

31. As such, in view of the foregoing discussions and the judicial pronouncements on the subject, I am of the opinion that the impugned order

dated 23.02.2016 passed by the Learned CJM, Jorhat, Shri Darak Ullah in CR Case No.117/2010 is not sustainable in law and is liable to be set aside. Accordingly, point for determination is decided in affirmative.

O R D E R

32. Accordingly, the impugned order dated order dated 23.02.2016 passed by the Learned CJM, Jorhat, Shri Darak Ullah in CR Case No.117/2010 is hereby set

aside. In the result Revision Petition is allowed.

33. This Criminal Revision Petition is accordingly disposed of on contest. Stay

granted is hereby vacated.

34. Learned Trial Court is directed to grant an opportunity to the Complainant

to lead pre-charge evidence after conclusion of which the Learned Trial Court shall decide the issue of framing of charge or discharge, as the case may be, afresh.

35. Considering the delay caused in the matter, this Court is of the

considered opinion that interest of justice would be served if the trial in CR Case

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No.117/2010 is concluded expeditiously in a time-bound manner preferably within a period of three months from today.

36. Send back the case record alongwith a copy of this judgment to the Ld.

Trial Court immediately.

37. Signed, sealed and delivered in the open Court on this the 01st day of

February, 2020 in Jorhat.

(Smt. P. Kataki)

Addl. Sessions Judge, Jorhat