# Gyan Chand & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** Criminal Revision No. 4893 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyan-chand-ors-revisionists-v-state-of-u-p-anr-45032
- **Pages:** 8

## Headnote

Criminal Procedure Code, 1973 - Section
245 (2) - Discharge - Appearance of the
accused at the time of considering his
prayer for discharge - if stages u/s 200 to
202 Cr.P.C have ended & reached stage of
section
244
Cr.P.C
-
appearance
necessary.

Magistrate rejected discharge application u/s
245(2) Cr.P.C - on the ground that revisionistsaccused not surrendered and not taken bail -
Held - Admittedly, stage from 200 to 204
Cr.P.C. has been passed - It was the stage of
recording of statement under Section 244
Cr.P.C. - proceedings u/s 244 begins with the
appearance of the accused, therefore, in a case
where the stages provided in sections 200 to
202 of the Code have already come to an end
and the case reaches the stage of section 244 -
the discharge prayer, in such situation under

## Text

1 All. Manoj & Anr. Vs. State of U.P. & Anr.
237

32. The revision is allowed.

33. The matter is remanded to the
court concerned for fresh adjudication and
court concerned is directed that after
giving appropriate opportunity of hearing
to rival parties, it shall decide the same, in
accordance with law, keeping in view the
aforesaid judgements decided by the Apex
Court within one month from the date of
production of a certified copy of this order.
----------
(2020)1ILR A237

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Criminal Revision No. 4357 of 2019

Manoj & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Rajesh Kumar Mishra, Sri Vimlendu Tripathi

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Procedure Code, 1973 - Section
319 - ambit of expression 'evidence' used in
Section 319 Cr.P.C - the word "evidence" is
 limited to the evidence recorded during tri
al in shape of oral and documentary
evidence - and not includes the evidence
collected
during
investigation
-
any
evidence collected during investigation
stage either in favour of the prosecution or
the accused cannot be taken into account
while exercising power u/s 319 Cr.P.C -
other evidence which come on record
between the stage of taking cognizance by
court till the commencement of the trial
can merely be used for corroborative
purposes (Para 16)
B. Criminal Procedure Code, 1973 - Section
319 Cr.P.C - Plea of alibi raised by accused -
cannot be examined by
court
while exercising
power u/s 319 Cr.P.C -
Revisionist accused have ample opportunity
to place his evidence at the appropriate
stage (Para 19)

C.
Maxim
-
secundum
subjectam
materiam - Ratio - judicial precedent - it
is well settled that authority / judicial
precedent has to be understood in
context of facts based on which the
observation made therein are made - a
decision is precedent on its own facts -
the ratio of a decision is generally
secundum subjectam materiam (Para 12)

Revisionists summoned u/s 319 Cr.P.C on the
basis of the statement of prosecutrix recorded
during trial - in which she levelled allegation of
gang rape against the revisionist - Order
challenged on the ground that Trial judge did
not consider the material collected during
investigation in respect of revisionist plea of
alibi which stood unrebutted & was of
impeccable quality - Held - trial justified in not
placing
reliance
on
wholly
inadmissible
evidence of alibi collected during investigation

Criminal Revision dismissed. (E-5)

List of cases cited: -

1. Hardeep Singh Vs St. of Pun (2014) 3 SCC 92

2. Brijendra Singh & ors Vs St. of Raj (2017) 7 SCC
706

3. Shiv Prakash Mishra Vs St. of UP & anr
Cr. Appeal No.1105 of 2019 dated 23.7.2019

4. Quinn Vs Leathem (1901) AC 495, Earls of Halsbury L.C.

5. St. of Hary Vs Sher Singh Manu SC/0236/1981

6. Gurcharan Singh Vs. St. of Pun Manu SC/0122/1955

7.Chandrika Prasad Singh Vs St. of Bih Manu
SC/ 0084/1971

8.St. of Ori. Vs Debendra Nath Padhi 2004(8)
Supremem Court Cases 568
238 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rajul Bhargava, J.)

1. Heard Sri Vimlendu Tripathi and
Sri Rajesh Kumar Mishra, counsel for the
revisionists and learned AGA.

2. The present criminal revision has
been filed against the impugned judgment
and order dated 4.10.2019 passed by
learned Additional District and Session
Judge, Hapur on the application filed by
opposite party no. 2 u/s 319 Cr.P.C. in
Special Session Trial no. 45 of 2016 (State
vs. Joni) arising out of Case Crime no. 120
of 2016, u/s 363, 366, 376 IPC, and
Section 3⁄4 POCSO Act, P.S. Babugarh,
District Hapur.

3. The breif background of the case
is that the revisionists were summoned u/s
319 Cr.P.C. vide order dated 13.12.2018
on the basis of statement of prosecutrix
recorded during trial in which she has
levelled allegation of gang rape against the
revisionists and the said order was
challenged by the revisionists in Criminal
Revision no. 459 of 2019. The coordinate
Bench of this Court quashed the order
dated 13.12.2018 and remanded the matter
back for fresh consideration after affording
opportunity of hearing to both the parties
strictly in the light of ratio laid down in
Hardeep Singh's case etc. within a period
of eight weeks. The order passed by the
Court is as under:-

"Heard learned counsel for the
revisionists and learned AGA for the State.

The instant Criminal Revision is
on behalf of the revisionist Manoj and
Raju @ Raj Kumar is targetted against the
orders passed by Additional Sessions
Judge,
Hapur
while
deciding
the
application no. 30 kha under Section 319
Cr.P.C. so preferred by the accused
informant.

Submission made by the counsel
is that the informant Ashok Kumar lodged
an FIR on 06.04.2016 under Sections 363
and 366 IPC, P.S. Babugarh, District
Hapur against one Johny. The name of the
revisionist was neither named in the FIR
nor his name came during investigation.
Submission furhter made by the counsel is
that during investigation, the statement
under Section 164 Cr.P.C. of the victim
was recorded in which she has taken name
of Raju @ Rajkumar and Manoj for
extending threats to girl but, interestingly,
ignoring 164 Cr.P.C. and collecting or
attending material, the I.O. of the case in
the fitness of the case of the circumstances
has submitted under Section 173 (2)
Cr.P.C. only against Johny and there was
no whisper in the charge sheet regarding
the complicity of Jitendra, Raju and Manoj
(revisionists). Thereafter since the case
was triable by the sessions court and
consequently the matter was committed to
the court of Sessions. The testimony of the
victim was recorded on 21.06.2018 in
which she has taken the name and
attributed the role against the Johny son of
Babloo, Jitendra son of Karan, Jitendra's
uncle Raju @ Rajkumar and uncle of
Johny, Manoj and has mentioned that all
the four has out raged her modesty. Not
only this the mother of the victim has also
recorded her testimony on the same lines
and thereafter it was prayed from the
court learned trial court to exercise the
power under Section 319 Cr.P.C. and
summoned
known
accused
persons
(revisionists) and by impugned order
learned trial judge has summoned the
revisionist.

Learned
counsel
for
the
revisionists has assailed the order on the
ground that the order impugned is in
1 All. Manoj & Anr. Vs. State of U.P. & Anr.
239
complete tangent of the ratio laid down by
the Hon'ble Apex Court in the case of
Brijendra Singh & others Vs. State of
Rajasthan reported in (2017) 7 SCC 706,
Hardeep Singh vs State Of Punjab & Ors
reported in (2014)3 SCC 92, Labhuii
Amratji Thakor & others Vs. State of
Gujrat and another, (Criminal Appeal No.
1349 of 2018 arising out of SLP (Crl.) No.
6392 of 2018 decided on 13.11.2018.

In
order
to
buttress
his
contention
learned
counsel
for
the
applicant has relied upon Brijendra
Singh's case in which Hon'ble Apex Court
has categorically mentioned :-

"However, in a case like the
present where plethora of evidence was
collected by the IO during investigation
which suggested otherwise, the trial court
was at least duty bound to look into the
same while forming prima facie opinion
and to see as to whether 'much stronger
evidence than mere possibility of their (i.e.
appellants) complicity has come on
record. There is no sayisfaction of this
nature."

On the similar lines in the recent
judgment of Hon'ble Apex Court in
Labhuji Amratji Thakor's case the court
has opined that the power under Section
319 Cr.P.C. should be sparingly used and
it should be very sparingly. More over
under the circumstances it has been
categorically mentioned that on the date
and time of the incident, the revisionists
Manoj Kumar was on Govt. duty and was
residing in the Govt. accommodation and
after 27.02.2016, he has not taken any
leave and continuously remain present in
the Chief Fire Extinguisher Office, District
Bulandshahar and certified copy to this
effect is annexed as Annexure-11 to the
affidavit accompanying the revision. The
revisionist no.1 is a Govt. Servant, all
these factors has to be taken into account
while
recording
the
prima
facie
satisfaction.

After
going
through
the
impugned order, I am of the considered
opinion that the order impugned is in the
strak contrast with the ratio laid down by
the above mentioned three judgements of
Hon'ble Apex Court in which the Hon'ble
Apex Court has provided the guidelines
with regard to the summoning, the
quantum of satisfaction, and the stage of
using 319 Cr.P.C. application and thus
under the circumstances in exercise of
power under Section 397/401 Cr.P.C., I
here quashed the order dated 13.12.2018
and remanded he matter back for fresh
consideration after affording opportunity
of hearing to both the parties strictly in the
light of the ratio laid down in Hardeep
Singh's case, Labhuji Amratji's case and
Brijendra Singh's case within a period of
eight weeks from the date of production of
certified copy of thsi order.

With the aforesaid observation,
this revision stands disposed of finally."

4. Since the entire facts of the case
and evidence recorded during trial has
already been discussed in the aforesaid
order, I do not deem it fit to repeat the
submission made by counsel for the
revisionists onceagain as now even in the
present petition argument advanced by
learned counsel is the same and has
assailed
the
impugned
order
dated
4.10.2019.

5.

Learned
counsel
for
the
revisionists have assailed the impugned
order on the ground that the trial judge has
misinterpreted evidence on record and has
recorded
perverse
finding
about
involvement of revisionists in the crime.
Trial judge did not consider the material
collected during investigation in respect of
240 INDIAN LAW REPORTS ALLAHABAD SERIES
their plea of alibi which stood unrebutted
and solely on the basis of conjectures and
surmises summoned the revisionists to
face trial.

6.

Learned
counsel
for
the
revisionists submitted that in view the
judgement of Hon'ble Apex Court in the
case of Hardeep Singh Versus State of
Punjab (2014) 3 SCC 92, the trial judge
has not considered the evidence on record
and has relied on extraneous material
without recording satisfaction more than
prima facie satisfaction sufficient for
framing charges is required under the law
and no such satisfaction to this effect has
been recorded in the impugned order.
Learned counsels have further place
reliance on subsequent decision of the
Hon'ble Apex Court in the case of
Brijendra Singh and others Versus State of
Rajasthan (2017) 7 SCC 706 and followed
in the a recent judgement rendered by
Hon'ble Apex Court in the case of Shiv
Prakash Mishra Versus State of Uttar
Pradesh and another passed in Criminal
Appeal No.1105 of 2019 (arising out of
S.L.P. (Crl.) No.2168 of 2019) dated
23.7.2019 wherein the plea of alibi was
raised by the accused and accepted by
Investigating Agency which led to filing of
charge-sheet. The powers under Section
319
Cr.P.C.
was
invoked
by
the
prosecution which led to allowing of the
application which was assailed in the High
Court whereafter the matter was preferred
upto Supreme Court wherein challenge
made by the accused therein was upheld
by holding that a detailed inquiry has been
conducted by the investigating agency
where the plea of alibi was found to be
true, the trial court was not correct in
allowing the application under Section 319
Cr.P.C. in a perfunctory and cursory
manner without applying its judicial mind
to the exonerative evidence collected by
the
Investigating
Officer
during
investigation.

7. Sri Pankaj Saxena, learned A.G.A.
Appearing for the State has strongly
opposed the prayer for quashing the
impugned order and has relied upon the
Constitution Bench decision of Hon'ble
Apex Court in Hardeep Singh Versus State
of Haryana.. He has further argued that the
plea of alibi cannot be considered at the
stage of taking cognizance or claiming
discharge by the accused under Section
227 of Cr.P.C. and the trial court while
exercising powers under Section 319
Cr.P.C. The trial judge has rightly placed
reliance on the statement of PW 3 who is
the victim of gang rape by the revisionists
and two other which continued for about a
month. Therefore, the instant revision
deserves to be dismissed.

8. In order to deal with the submissions
made by learned counsels for the revisionists,
especially in respect of subsequent judgements
rendered by the Hon'ble Apex Court in
Brijendra Singh's and Shiv Prasad Mishra's
cases, I would like to deal with legal aspect as
to what material/evidence is to be considered
under Section 319 Cr.P.C. as laid down in the
judgements of the Hon'ble Apex Court in the
Constitution Bench decision rendered in the
case of Hardeep Singh (supra).

9. The Hon'ble Apex court in it's
decision of Constitution Bench in the case
of Hardeep Singh(supra) has considered
the scope, ambit and sweep of Section 319
Cr.P.C. in detail and has framed several
questions
including
question
No.(iii)
which is reproduced below:-

"Question (iii) - Whether the
word "evidence" used in Section 319 (1)
1 All. Manoj & Anr. Vs. State of U.P. & Anr.
241
Cr.P.C. has been used in a comprehensive
sense and includes the evidence collected
during
investigation
or
the
word
"evidence" is limited to the evidence
recorded during trial ?"

10. The above said question has been
answered in the following manner by the Apex
Court:-

"85. In view of the discussion made
and the conclusion drawn hereinabove, the
answer to the aforesaid question posed is that
apart from evidence recorded during trial, any
material that has been received by the court
after cognizance is taken and before the trial
commences,
can
be
utilized
only
for
corroboration and to support the evidence by
the court to invoke the power under Section
319 Cr.P.C. The "evidence" is thus limited to
the evidence during trial."

11. This Court, after carefully
considering
the
Constitution
Bench
decision of Apex Court in the case of
Hardeep Singh(supra) and subsequent
decisions in Brijendra Singh's and Shiv
Prakash Mishra's cases is of the opinion
that a bare perusal of two Judges's Bench
decision of Apex Court in the Brijendra
Singh's case reveals that though earlier
decision of Hardeep Singh was considered,
however, the scope, ambit and sweep of
expression "evidence" contained under
Section 319 Cr.P.C. and explained in the
para 85 in the judgement was not
considered in the subsequent cases to the
extent that any evidence collected during
investigation either in favour of the
prosecution or the accused cannot be taken
into account while exercising the power
under Section 319 Cr.P.C. In view of
unambiguous interpretation to the word
'evidence'; it is limited to the evidence
recorded by the trial court".

12. With profound respect and
utmost humility at my command, I may
record that it is well settled that
authority/judicial precedent has to be
understood in context of facts based on
which the observation made therein are
made. The ratio of a decision is generally
secundum subjectam materiam.

13. In Quinn v. Leathem (1901) AC
495, Earls of Halsbury L.C. stated:

"...that every judgment must be
read as applicable to the particular facts
proved, or assumed to be proved, since the
generality of the expressions which may be
found there are not intended to be
expositions of the whole law, but governed
and qualified by the particular facts of the
case in which such expressions are to be
found. The other case is only an authority
for what it actually decides.

14. It is also well settled that a
decision is precedent on its own facts.
Each case presents its own features. It is
not everything said by a Judge while
giving
judgement
that
constitutes
a
precedent. The only thing in Judge's
decision binding a party is the principle
upon which the case is decided and for this
reason it is important to analyze a decision
and isolate from it the ratio decidendi.

15. This court indeed cannot
comment on the decision of Hon'ble Apex
Court in the Brijendra Singh and Shiv
Prakash Mishra's cases(supra) but two
conflicting views appeared to exist on the
same point of meaning of expression
''evidence' used in Section 319 Cr.P.C., the
decision of Hon'ble Apex Court in the case
of Hardeep Singh rendered by Bench of
larger composition shall prevail upon
Brijendra Singh's and another decision.
242 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In view of the above, this Court
has no hesitation to hold that the
expression "evidence" found in Section
319 Cr.P.C. is to be understood to mean
the evidence collected during the trial in
shape of oral and documentary evidence.
However, the other evidence which has
come on record between the stage of
taking cognizance by the Court till the
commencement of the trial can merely be
used for corroborative purposes as laid
down by the Apex Court in five Judge
Bench decision in the case of Hardeep
Singh. In other words, an application
under Section 319 Cr.P.C. is maintainable
only
when
implicative
evidence
of
probative value more than strong suspicion
comes on record in shape of documentary
or oral evidence in trial. While considering
such application under Section 319 Cr.P.C.
the trial court can take assistance, for
corroboration only, of any evidence which
is already on record introduced between
the stage of taking cognizance and the
stage of commencement of trial. However,
the trial court is not empowered to invoke
Section 319 Cr.P.C. merely based on
evidence which is part of investigation
stage unless the same is already brought
on record between the period of taking
cognizance and before the trial begins.

17. Essentially, the main thrust of the
learned counsels for the revisionists is to
the plea of alibi which according to them
was of an impeccable quality and thus the
trial judge instead of rejecting the same on
flimsy ground should have considered the
same in this behalf statement of witnesses
was also recorded by the Investigating
Officer under Section 161 Cr.P.C. to
record
a
positive
finding
that
the
revisionists could not have been present at
the scene of commission of crime. It is
well settled that statement under Section
161 Cr.P.C. is not a substantive piece of
evidence. In view of proviso to subsection
(1) of Section 162 Cr.P.C., the statement
can be used only with limited purpose of
contradicting the maker thereof in the
manner laid down in the said proviso.
Therefore, the trial judge was perfectly
justified in not placing reliance on wholly
inadmissible evidence of alibi collected
during investigation and if he had relied
upon the same it would squarely be against
interpretation given by Constitution Bench
of Hon'ble Apex Court in Hardeep Singh's
case being extraneous material collected
during investigation and could not be
treated as an evidence for the purposes of
exercise of powers under Section 319
Cr.P.C. Consideration of plea of alibi
while exercising powers under Section 319
Cr.P.C. may also be looked into from
another angle i.e. Section 103 of Evidence
Act which stipulates that burden of proof
as to any particular fact lies on that person
who wishes the court to believe in its
existence, unless it is proved by any law
that proof of that fact lies on a particular
person. Second illustration to Section 103
of Evidence Act reads as under:

"B wishes the court to believe
that at that time in question he was
elsewhere, he must prove it."

18. This provision makes it obvious
that burden of establishing plea of alibi of
the revisionists before this Court lay
squarely upon them. There is hardly any
doubt regarding this legal proposition.
Reference may be made to the cases of
State of Haryana Versus Sher Singh,
Manu SC/0236/1981, Gurcharan Singh
Versus
State
of
Punjab,
Manu
SC/0122/1955 and Chandrika Prasad
Singh Versus State of Bihar Manu
SC/0084/1971.
1 All. Manoj & Anr. Vs. State of U.P. & Anr.
243

19. This could be done by leading
evidence in trial court and not by relying
on
the
material
collected
during
investigation.
In
such
a
case
the
prosecution would have to be given an
opportunity to cross-examine this witness
can demonstrate that their testimony was
not correct. The Court also in exercise of
its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi of
an accused at the stage of taking
cognizance,
framing
of
charges
or
summoning the accused on the basis of
evidence recorded during trial under
Section 319 Cr.P.C. The revisionists
accused will have ample opportunity to
place their evidence at the appropriate
stage. In this behalf the judgement of the
Hon'ble Apex Court, rendered in the case
of State of Orissa Versus Debendra Nath
Padhi, 2004(8) Supreme Court Cases 568
be referred to. It was held:

" .....Further, at the stage of
framing of charge roving and fishing
inquiry is impermissible. If the contention
of the accused is accepted, there would be
a mini trial at the stage of framing of
charge. That would defeat the object of the
Code. It is well-settled that at the stage of
framing of charge the defence of the
accused
cannot
be
put
forth.
The
acceptance of the contention of the learned
counsel for the accused would mean
permitting the accused to adduce his
defence at the stage of framing of charge
and for examination thereof at that stage
which
is
against
the
criminal
jurisprudence. By way of illustration, it
may be noted that the plea of alibi taken
by the accused may have to be examined at
the stage of framing of charge if the
contention of the accused is accepted
despite the well settled proposition that it
is for the accused to lead evidence at the
trial to sustain such a plea. The accused
would be entitled to produce materials and
documents in proof of such a plea at the
stage of framing of the charge, in case we
accept the contention put forth on behalf
of the accused. That has never been the
intention of the law well settled for over
one hundred years now. It is in this light
that the provision about hearing the
submissions of the accused as postulated
by Section 227 is to be understood. It only
means hearing the submissions of the
accused on the record of the case as filed
by
the
prosecution
and
documents
submitted therewith and nothing more. The
expression 'hearing the submissions of the
accused' cannot mean opportunity to file
material to be granted to the accused and
thereby changing the settled law. At the
state of framing of charge hearing the
submissions of the accused has to be
confined to the material produced by the
police."

20. The above judgement relates to
the stage of claiming of discharge by the
accused
under
Section
227
Cr.P.C.
However, in view of well settled law that
even at the stage of framing of charge,
material in respect of plea of alibi cannot
be relied upon to discharge the accused.

21. The power under Section 319 of
the Code is conferred on the court to
ensure that justice is done to the society by
bringing to book all those guilty of an
offence. One of the aims and purposes of
the Criminal Justice System is to maintain
social order. It is necessary in that context
to ensure that no one who appears to be
guilty escapes a proper trial in relation to
that guilt. There is also a duty to render
justice to the victim of the offence. It is in
recognition of this that the Code has
specifically conferred a power in the court
244 INDIAN LAW REPORTS ALLAHABAD SERIES
to proceed against others not arrayed as
accused in the circumstances set out by
this Section. It is a salutary power enabling
the discharge of a court's obligation to the
society to bring to book all those guilty of
a crime.

22. The facts of the present case are
very alarming and grevious in nature
inasmuch as a minor girl aged about 15
years has not only given detailed version
of ordeal faced by her in the statement
recorded u/s 164 Cr.P.C. but PW-3 victim
has narrated that for a month she was
confined in a room by the revisionists and
two
other
co-accused
and
was
continuously gang raped by them. The trial
court while considering the entire evidence
onceagain after being remanded by this
Court has recorded finding that the plea of
alibi
of
the
revisionists
cannot
be
examined inasmuch as the revisionist no. 1
was merely working in the office of Chief
Fire Brigade Officer, Bulandshahar and
the revisionist no. 2 was present in the
Ashram of his Guru and location of his
mobile was found continously at that place
and both plea cannot be examined by him
while exercising power u/s 319 Cr.P.C.
The plea of both the revisionists as noted
cannot be examined at this stage and
besides it, as the prosecutrix was kept
under illegal detention for a month and
was continously raped by the accused
including the revisionists the location of
their mobile and certificate of Chief Fire
Brigade Officer has no relevance at this
stage, which at best can be scanned and
examined when the revisionists lead
defence evidence and prove the aforesaid
documents in accordance with law.

23. In the light of aforesaid, the
present revision is bereft of merit. The
impugned order passed by trial judge is
perfectly justified and well within the
guidelines/ parameters laid down by
Constitution Bench decision of Hon'ble
Apex Court in the case of Hardeep Singh.

24. The revision is accordingly,
dismissed.
----------
(2020)1ILR 244

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 4893 of 2019

Gyan Chand & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Amresh Kumar Tiwari, Sri Dharmendra
Dhar Dubey

Counsel for the Opposite Parties:
A.G.A.

Criminal Procedure Code, 1973 - Section
245 (2) - Discharge - Appearance of the
accused at the time of considering his
prayer for discharge - if stages u/s 200 to
202 Cr.P.C have ended & reached stage of
section
244
Cr.P.C
-
appearance
necessary.

Magistrate rejected discharge application u/s
245(2) Cr.P.C - on the ground that revisionistsaccused not surrendered and not taken bail -
Held - Admittedly, stage from 200 to 204
Cr.P.C. has been passed - It was the stage of
recording of statement under Section 244
Cr.P.C. - proceedings u/s 244 begins with the
appearance of the accused, therefore, in a case
where the stages provided in sections 200 to
202 of the Code have already come to an end
and the case reaches the stage of section 244 -
the discharge prayer, in such situation under