Case Note & Summary
The petitioners (original accused) challenged the order of the Adhoc Sessions Judge-4, Latur, which had set aside the Magistrate's order discharging them in R.C.C. No.659/1994. The respondent No.2 (complainant) had lodged a complaint alleging that the petitioners forged a document dated 29.10.1989 (Kararnama) to falsely claim a share in his property. During the pre-charge evidence stage, the complainant examined himself and was in the process of examining other witnesses. On 20.7.2007, while the cross-examination of the complainant was not yet over and he had not closed his evidence, the petitioners filed a discharge application. The learned Magistrate discharged the petitioners on two grounds: (1) the complaint was filed after 5 years from the date of the alleged document, and (2) the document was not produced before the court. The complainant filed a revision before the Sessions Court, which set aside the discharge order, holding that the Magistrate had erred in discharging the accused at that stage. The High Court upheld the Sessions Court's order, reasoning that in a warrant case instituted on complaint, the complainant has a right to lead evidence before charge under Section 244 CrPC. The accused's right to seek discharge under Section 245 CrPC arises only after the complainant has closed his evidence. Since the complainant's evidence was not closed and the cross-examination was pending, the discharge application was premature. The High Court dismissed the revision, confirming that the matter must proceed further in the trial court.
Headnote
A) Criminal Procedure - Discharge - Section 245 CrPC - Stage for Discharge - The Magistrate discharged the accused during the pendency of the complainant's evidence before charge, when the complainant's cross-examination was not over and evidence was not closed. The High Court held that the discharge was premature as the complainant had a right to lead evidence before charge, and the Magistrate could not entertain a discharge application at that stage. The order of discharge was set aside and the matter remanded for further proceedings. (Paras 2-5) B) Criminal Procedure - Evidence Before Charge - Right of Complainant - Section 244 CrPC - The complainant in a warrant case instituted on complaint has a right to examine witnesses before charge. The accused's right to seek discharge under Section 245 arises only after the complainant has closed his evidence. Filing a discharge application before closure of evidence is premature and cannot be entertained. (Paras 3-5)
Issue of Consideration
Whether the Magistrate could discharge the accused under Section 245 CrPC when the complainant had not yet closed his evidence before charge and the discharge application was filed during the pendency of cross-examination of the complainant.
Final Decision
The High Court dismissed the criminal revision application, upholding the Sessions Court's order setting aside the discharge and directing the trial court to proceed further in accordance with law.
Law Points
- Discharge application under Section 245 CrPC cannot be entertained before complainant closes evidence
- Right to lead evidence before charge is a substantive right
- Magistrate cannot discharge accused during pendency of complainant's evidence
