# Mahesh Kumar & Ors. Revisionists v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 1746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-05
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-ors-revisionists-v-state-of-u-p-anr-43814
- **Pages:** 7

## Headnote

The revisionist challenged an order by the Chief Judicial Magistrate, Sant Kabir Nagar, which rejected a
discharge application filed under Section 245(1) Cr.P.C. in a warrant case instituted via complaint. The
revisionist argued that the Magistrate erroneously rejected the application by acting beyond the jurisdictional
scope of the provision. The Court, however, clarified the distinct procedural hierarchies between Section
245(1) and Section 245(2). It noted that under Section 245(1), a Magistrate considers discharge after the
prosecution leads evidence in the presence of the accused (under Section 244), allowing for crossexamination. Conversely, Section 245(2) allows for discharge at any "previous stage" if the accusations are
deemed "groundless" even before evidence is recorded.
Upon reviewing the record, the Court found that the revisionist had indeed appeared, and the prosecution had
produced evidence under Section 244, including the cross-examination of the informant. Therefore, the
Magistrate's decision to evaluate the evidence and refuse discharge was legally sound and within the proper
procedural stage. Finding no jurisdictional error or infirmity in the lower court's reasoning, the High Court
dismissed the revision petition.
Revision dismissed

Case Laws Cited:-

Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209
Cricket Association of Bengal and others Vs. State of West Bengal and others, AIR 1971 SC 1925
S.K. Alagh Vs. State of U.P. and others, AIR 2008 SC 1731
Century Spg. And Mfg. Co. Ltd. Vs. State of Maharashtra, (1972) 3 SCC 282 : 1972 SCC (Cri) 495
Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115
5 All. Mahesh Kumar & Ors. Vs State Of U.P. & Anr.

1747
Nanhey Lal and other Vs. State of U.P., 2014 Crl. L. J. 1405
Lt. Col. S.K. Kashyap and another Vs. The State of Rajasthan, AIR 1971 SC 1120
Harinarayan G. Bajaj Vs. State of Maharashtra and others, 2010 (11) SCC 520

## Text

1746 INDIAN LAW REPORTS ALLAHABAD SERIES
by secured creditor has to be in consonance with SARFESI Act, 2002 and 2002 Rules and has to be
strictly complied with, failing which, the sale would be nullified.

19. Special appeal sans merit and same is dismissed, accordingly.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Revision No.- 1167 Of 2016

Mahesh Kumar & Ors. ...Revisionists
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Shri Ved Prakash Shukla

Counsel for the Opposite Parties:
G.A., Shri Shwetashwa Agarwal

Held -
The revisionist challenged an order by the Chief Judicial Magistrate, Sant Kabir Nagar, which rejected a
discharge application filed under Section 245(1) Cr.P.C. in a warrant case instituted via complaint. The
revisionist argued that the Magistrate erroneously rejected the application by acting beyond the jurisdictional
scope of the provision. The Court, however, clarified the distinct procedural hierarchies between Section
245(1) and Section 245(2). It noted that under Section 245(1), a Magistrate considers discharge after the
prosecution leads evidence in the presence of the accused (under Section 244), allowing for crossexamination. Conversely, Section 245(2) allows for discharge at any "previous stage" if the accusations are
deemed "groundless" even before evidence is recorded.
Upon reviewing the record, the Court found that the revisionist had indeed appeared, and the prosecution had
produced evidence under Section 244, including the cross-examination of the informant. Therefore, the
Magistrate's decision to evaluate the evidence and refuse discharge was legally sound and within the proper
procedural stage. Finding no jurisdictional error or infirmity in the lower court's reasoning, the High Court
dismissed the revision petition.
Revision dismissed

Case Laws Cited:-

Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209
Cricket Association of Bengal and others Vs. State of West Bengal and others, AIR 1971 SC 1925
S.K. Alagh Vs. State of U.P. and others, AIR 2008 SC 1731
Century Spg. And Mfg. Co. Ltd. Vs. State of Maharashtra, (1972) 3 SCC 282 : 1972 SCC (Cri) 495
Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115
5 All. Mahesh Kumar & Ors. Vs State Of U.P. & Anr.

1747
Nanhey Lal and other Vs. State of U.P., 2014 Crl. L. J. 1405
Lt. Col. S.K. Kashyap and another Vs. The State of Rajasthan, AIR 1971 SC 1120
Harinarayan G. Bajaj Vs. State of Maharashtra and others, 2010 (11) SCC 520

(Delivered by Hon'ble Suneet Kumar, J.)

1. The revisionist-accused is assailing the order dated 15 March 2016, passed by the Chief
Judicial Magistrate, Sant Kabir Nagar in Complaint Case No. 2190 of 2010, under Sections 323,
504, 506, 384 IPC, P.S. Khalilabad, District Sant Kabir Nagar, whereby, an application filed under
Section 245 (1) Cr.P.C has been rejected.

2. The sole contention raised by the learned counsel for the revisionist is that the learned
Magistrate passed the order erroneously rejecting the discharge application which being beyond the
scope of Section 245 Cr.P.C.

3. The complainant-opposite party no.2 filed a complaint, learned Magistrate upon
examining the complainant under Section 200 and witnesses under Section 202 Cr.P.C summoned
the revisionist. Revisionist filed discharge application which was rejected by the impugned order. It
was contended that the Magistrate rejected the discharge application under Section 245(2), thus
being without jurisdiction.

4. The record would however, reveal that the discharge application was filed under Section
245(1) and not under Section 245(2). Before I proceed to consider the contention on merit, the
scope of the provision contained under Section 245 Cr.P.C needs to be examined.

5. In Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209, the
question that fell for determination was as to whether deposition of complainant and his witnesses
recorded under Chapter XV of the Code before cognizance is taken by the Magistrate would
constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter
XIX of the Code.

6. The essential difference of procedure in the trial of warrant case on the basis of a police
report and that instituted otherwise than on the police report, is particularly marked in Sections 238
and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238,
when in a warrant case, instituted on a police report, the accused appears or is brought before the
Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents
like police report, FIR, statements recorded under Sub-section (3) of Section 161 Cr.P.C. of all the
witnesses proposed to be examined by the prosecution, as also the confessions and statements
recorded under Section 164 and any other documents, which have been forwarded by the
prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided
in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent
with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the
prosecution of the accused, and if on such examination and hearing, the Magistrate considers the
1748 INDIAN LAW REPORTS ALLAHABAD SERIES
charge to be groundless, he would discharge the accused and record his reasons for so doing. The
prosecution at that stage is not required to lead evidence. If, on examination of aforementioned
documents, Magistrate comes to the prima facie conclusion that there is a ground for proceeding
with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a
separate order. It is then that the charge is framed under Section 240 Cr.P.C. and the trial proceeds
for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead
evidence and that too comes only after the charge is framed.

7. However, in a warrant trial instituted otherwise than on a police report, when the
accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate
has to hear the prosecution and take all such evidence, as may be produced in support of the
prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2)
Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. If the
Magistrate comes to the conclusion that there is no such case made out against the accused, the
Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie
case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The
complainant then gets the second opportunity to lead evidence in support of the charge unlike a
warrant trial on police report, where there is only one opportunity. In the warrant trial instituted
otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly,
before the charge is framed and secondly, after the charge.

8. Chapter XV of Cr.P.C deals with complaints made to Magistrate, Section 200 which
appears in the said Chapter inter alia provides that the Magistrate taking cognizance of an offence
on a complaint shall examine upon oath the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and signed by the complainant and the
witnesses, as also the Magistrate. An exception to that general rule is, however made in terms of
the proviso to Section 200 in cases where the complaint is made by a public servant acting or
purporting to act in the discharge of his official duties, or where a court has made the complaint or
the Magistrate makes over the cases for enquiry or trial by another Magistrate under Section 192 of
the Cr.P.C.

9. Section 201 deals with the procedure which a Magistrate not competent to take
cognizance of the case is required to follow. Section 202 empowers the Magistrate to postpone the
issue of process against the accused either to inquire into the case himself or direct an investigation
to be made by a police officer for the purpose of deciding whether or not there is sufficient ground
for proceedings. Sub-section (2) of Section 202 empowers the Magistrate to take evidence of
witnesses on oath in an inquiry under sub-section (1) thereof. Section 203 which is the only other
provision appearing in Chapter XV, empowers the Magistrate to dismiss the complaint if he is of
the opinion that no sufficient ground for proceeding with the same is made out.

10. There is no gainsaying that a Magistrate while taking cognizance of an offence under
Section 200, whether such cognizance is on the basis of the statement of the complainant and the
witnesses present or on the basis of an inquiry or investigation in terms of Section 202, is not
5 All. Mahesh Kumar & Ors. Vs State Of U.P. & Anr.

1749
required to notify the accused to show cause why cognizance should not be taken and process
issued against him or to provide an opportunity to him to cross-examine the complainant or his
witnesses at that stage.

11. In contra distinction, Chapter XIX of the Code regulates trial of warrant cases by
Magistrate. While Part A of that Chapter deals with cases instituted on a police report, Part B deals
with cases instituted otherwise than on a police report. Section 244 that appears in part B of
Chapter XIX requires the Magistrate to "proceed to hear the prosecution" and " take all such
evidence as may be produced in support of the prosecution" once the accused appears or is brought
before him. Sub-section (1) of Section 245 empowers the Magistrate to discharge the accused upon
taking all the evidence referred to in Section 244, if he considers that no case against the accused
has been made out which if unrebutted would warrant his conviction. Sub-section (2) of Section
245 empowers the Magistrate to discharge an accused even " at any previous stage" if for reasons
to be recorded by such Magistrate the charges are considered to be " groundless". In cases where
the accused is not discharged, the Magistrate is required to follow the procedure under Section 246
of the Code.

12. Section 244 to 246 leave no manner of doubt that once the accused appears or is
brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in
support of its case recorded. The power to discharge is also under Section 245 (1) exercisable only
upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges
in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section
244.

13. The scheme of the two Chapters is totally different. While chapter XV deals with the
filing of complaints, examination of the complainant and the witnesses and taking of cognizance on
the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of
warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter
XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence
adduced at the initial stage where the Magistrate records depositions and examines the evidence for
purposes of deciding whether a case for proceeding further has been made out. All that may be said
is that evidence that was adduced before a Magistrate at the stage of taking cognizance and
summoning of the accused may often be the same as is adduced before the Court once the accused
appears pursuant to the summons. There is, however, a qualitative difference between the approach
that the court adopts and the evidence adduced at the stage of taking cognizance and summoning
the accused and that recorded at the trial. The difference lies in the fact that while the former is a
process that is conducted in the absence of the accused, the latter is undertaken in his presence with
an opportunity to him to cross examine the witnesses produced by the prosecution. (Refer : Sunil
Mehta (supra).

14. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under
Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him
under Section 244 and he has to consider whether if the evidence remains unrebutted, the
1750 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction of the accused would be warranted. If there is no discernible incriminating material in
the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.

15. The Magistrate can discharge the accused under Section 245(1), if upon taking all the
evidence referred to in Section 244, he finds that no case against the accused has been made out
which, if unrebutted, would warrant his conviction. (AIR 1971 SC 1925; Cricket Association of
Bengal and others Vs. State of West Bengal and others, AIR 2008 SC 1731; S.K.Alagh Vs.
State of U.P and others, see also Century Spg. And Mfg. Co. Ltd. vs. State of Maharashtra,
(1972) 3 SCC 282 : 1972 SCC (Cri) 495.

16. The situation under Section 245(2) Cr.P.C. is, however, different. There, under subSection (2), the Magistrate has the power of discharging the accused at any previous stage of the
case, i.e., even before such evidence is led. However, for discharging an accused under Section 245
(2) Cr.P.C., the Magistrate has to come to a finding that the charge/allegation on the face value of
the complaint and evidence, if any, is groundless. There is no question of any consideration of
evidence at that stage, because there is none. The Magistrate can take this decision before the
accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The
words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly brings out
this position. 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. 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. 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.
(Refer : Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115, Nanhey
Lal and other Vs. State of U.P, 2014 Crl. L. J 1405).

17. The word "groundless" in Section 245(2) Cr.P.C means that the materials put forth on
behalf of the complainant must be such that it is not triable offences at all. Discharge of the accused
prior to recording of evidence permissible, only if the charge is considered to be groundless.

18. The word "charge" has no reference to the framing of a charge. It is used in the sense of
an accusation or allegation of an offence.(AIR 1971 SC 1120; Lt. Col. S.K. Kashyap and
another Vs. The State of Rajasthan).

19. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain
reading of the said provisions and the provisions of the Evidence Act, be admissible only if the
same is produced and, in the case of documents, proved in accordance with the procedure
established under the Evidence Act which includes the rights of the parties against whom this
evidence is produced to cross examine the witnesses concerned.
5 All. Mahesh Kumar & Ors. Vs State Of U.P. & Anr.

1751
20. Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence
of the accused. Whether or not a case is made out against him, can be decided only when the
accused is allowed to cross examine the witnesses for otherwise he may not be in a position to
demonstrate that no case is made out against him and thereby claim a discharge under Section 245
of the Code.

21. Apex Court further clarified that the expression " or at any previous stage of the case"
appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused
even before any evidence was led under Section 244 i.e. on the basis of evidence taken at the stage
of Section 200/202 Cr.P.C for issue of process (Refer Harinarayan G. Bajaj Vs. State of
Maharashtra and others, 2010 (11) SCC 520).

22. The scope and ambit of sub-clause(1) and (2) of Section 245 Cr.P.C therefore is distinct
and different, which can be summed as follows:

(i) The Magistrate exercises power under Section 245 (1) on the accused being
produced before him under Section 244;

(ii) The evidence is led in the presence of the accused who has a right to crossexamine the witnesses led at the stage of Section 244;

(iii) There being no discernible incriminating material in the evidence, then the
Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.

(iv) Section 245(2) Cr.P.C is a stage before the evidence of the prosecution under
Section 244(1) is completed or any stage prior to that; such stages would be under Section 200
Cr.P.C to Section 204 Cr.P.C, because the next stage is only the appearance of the accused before
the Magistrate in a warrant case under Section 244 Cr.P.C;

(v) The Magistrate can take decision under Section 245(2) before the accused is
brought before the Court or before the evidence is led under Section 244 Cr.P.C. There is no
question of consideration of evidence at that stage as there is none.

23. Having considered the statement of law, the facts of the case would reveal that the
revisionist was brought before the Magistrate at the stage of Section 244 which is reflected in the
order dated 15 March 2016 and the witnesses were produced by the prosecution before the
revisionist as is evident from the statement of the informant under Section 244 and cross
examination of the accused ( Annexure-3) to the petition.

24. In this view of the matter, I do not find any illegality, infirmity or jurisdictional error.

25. The revision being devoid of merit is accordingly dismissed.
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1752 INDIAN LAW REPORTS ALLAHABAD SERIES
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Revision No.- 1221 Of 2016

Indrajeet ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Shri Satya Prakash Chaturvedi

Counsel for the Opposite Parties:
G.A.

Held -

Paragraphs 1-2: -
The Court heard a criminal revision filed under Sections 397/401 Cr.P.C. against an order by the Sessions
Judge, Hapur. The lower court had summoned the revisionist, Indrajeet, to face trial for murder (Section 302
I.P.C.) under the powers granted by Section 319 Cr.P.C.
Paragraphs 3-7: -
The revisionist argued the summoning order was based on inadmissible evidence and misread facts. Citing
various precedents, the counsel emphasized that Section 319 powers are "extraordinary" and should be used
sparingly. They argued that mere suspicion or a simple prima facie case is insufficient; there must be a strong
probability that the evidence would lead to a conviction.
Paragraphs 8-10:-
The State opposed the revision, arguing that the court has the power to summon any person whose
complicity appears clear from the evidence, even if they weren't original charge-sheeted. It was noted that
while the degree of satisfaction required is higher than at the initial cognizance stage, the court must act to
ensure the real culprits do not escape justice.
Paragraphs 11-13:-
The Court reviewed Section 319 Cr.P.C., which allows a court to proceed against any person appearing guilty
during a trial. It highlighted the doctrine judex damnatur cum nocens absolvitur (the judge is condemned
when the guilty is acquitted). Finding no illegality or impropriety in the Sessions Judge's decision to summon
the revisionist based on the evidence, the High Court dismissed the revision.
Petition Dismissed.

List of Citations-

Brindaban Das and others vs. State of West Bengal, 2009 (66) ACC 273.
Ram Singh and others vs. Ram Niwas and another, 2009 (65) ACC 971.
Sarabjit Singh and another vs. State of Punjab and another, 2009 (66) ACC 32.