Monday, 12 October 2015

Whether magistrate can discharge accused at any previous stage of case as per S 245(2) CRPC?

Mr. De, learned Counsel for the opposite party has taken the extreme stand that after the trial Court is satisfied that a prima facie case has been made out and direction issued for issuance of processes Sub-section (2) of Section 245, Cr. P.C. has no application. On the other hand, Mr. Chaudhury has taken the stand, in my opinion, correctly, that at any stage the Court can exercise the powers under the said Sub-section (2), if the Court is of the opinion that the charge levelled against the accused is groundless. Sub-section (2) of Section 245, Cr. P.C. is the ad verbatim copy of Sub-section (2) of Section 253 of the old Code. In Cricket Association of Bengal v. State of West Bengal , the Apex Court held that Sub-section (2) of Section 253 of the old Code gives ample jurisdiction to the Magistrate to discharge an accused in the circumstances mentioned therein and the other of discharge can be passed at any previous stage of the case. This being the legal position, I am of the opinion, that the power of discharge under Sub-section (2) ofSection 245, Cr. P.C. can be exercised by the learned Magistrate at any stage of the criminal proceeding. But in discharging the accused under the said sub-section Magistrate has to be satisfied that the charge is groundless and accordingly has to record reasons. This being the legal position, the order dt. 14-7-87 passed by the learned trial Court rejecting the petition of the accused/petitioners under Section 245(2), Cr. P.C. cannot stand.
Gauhati High Court
Chandra Nath Sarma And Anr. vs Mahesh Nath Sarma on 19 January, 1989
Equivalent citations: 1989 CriLJ 1330

Bench: S Phukan


1. Accused-petitioners have filed the present petition under Section 482 and/or 401 of the Criminal Procedure Code, 1973 for quashing the Criminal Proceeding initiated on the complaint filed by the complainant opposite party, which was registered as complaint case No. 443C/80 and pending for disposal before the learned Judicial Magistrate of the First Class at Guwahati. The accused-petitioners also filed a petition under Sub-section (2) of Section 245, Cr. P.C. before the learned trial Court which was dismissed by the order dated 14-7-87 and this order has also been challenged.
2. The complaint petition is available at Annexure 'A' to the present petition and the initial statement of the complainant is at Annexure 'B'. In the complaint petition it was stated that the complainant along with three other co-pattadars executed a general power of attorney which was also registered in favour of the accused persons empowering them to sell 30 Bighas 15 Lechas of land. It is specifically stated that all the co-pattadars are joint owners. According to the complainant, he was reluctant initially to execute the power of attorney but on repeated insistence of the accused persons, it was so executed. It has also been stated that for the sale the accused persons were to get 2% commission. The accused persons sold 2 Bs 4 Ks of land at Rs. 61,000/-. But the grievance of the complainant is that the amount was not handed over to the complainant though he demanded the money. It has also been stated in the complaint petition that the accused persons refused to pay the amount to the complainant on the plea that the share of the complainant was not sold. The complainant revoked his power of attorney and also informed the accused persons but in spite of such revocation the accused persons sold another 2 Bighas 2 Kathas of land at a consideration of Rs. 48,000/- and out of said 2 Bighas 2 Kathas of land one bighas of land belonged to the complainant. It has been alleged that the accused persons dishonestly induced the complainant to execute the said power of attorney and have also misappropriated the entire sale proceeds. After recording the initial statements of the complainant, the learned trial Court on 21-3-80 passed an order directing issuance of warrant of arrest with bail of Rs. 5000/- under Section 406/420IPC. In the petition under Section 245(2), Cr. P.C., the accused persons pleaded before the learned trial Court that prima facie case was not made out; that if the complaint petition and initial statements are taken to be true it would disclose a dispute of civil nature; that the criminal proceeding has been initiated only to harass the accused persons; that before instituting the present criminal proceeding the complainant instituted several cases concerning the subject matter and that a Civil Suit being Title Suit No. 131/79 has been filed by the complainant and another co-pattadar, namely, Jadu Nath Sarma before the Court of learned Assistant District Judge No. 1, Guwahati which is still pending.
3. I have heard Mr. J. M. Chaudhury, learned Counsel for the petitioner and Mr. C.R. De, learned Counsel for the opposite party.
4. Sub-section (2) of Section 245, Cr. P.C. runs as follows:
(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.
5. On perusal of the order dated 14-7-87 by which the petition filed by the accused persons under the aforesaid provisions of law was dismissed, I find that the learned Court was of the opinion that after issue of processes, the Court has no jurisdiction to look into the matter under the aforesaid section. According to learned Magistrate the initial order by which processes were issued was not an interlocutory order and the materials and documents submitted by the accused persons could not be looked into.
6. Mr. De, learned Counsel for the opposite party has taken the extreme stand that after the trial Court is satisfied that a prima facie case has been made out and direction issued for issuance of processes Sub-section (2) of Section 245, Cr. P.C. has no application. On the other hand, Mr. Chaudhury has taken the stand, in my opinion, correctly, that at any stage the Court can exercise the powers under the said Sub-section (2), if the Court is of the opinion that the charge levelled against the accused is groundless. Sub-section (2) of Section 245, Cr. P.C. is the ad verbatim copy of Sub-section (2) of Section 253 of the old Code. In Cricket Association of Bengal v. State of West Bengal , the Apex Court held that Sub-section (2) of Section 253 of the old Code gives ample jurisdiction to the Magistrate to discharge an accused in the circumstances mentioned therein and the other of discharge can be passed at any previous stage of the case. This being the legal position, I am of the opinion, that the power of discharge under Sub-section (2) ofSection 245, Cr. P.C. can be exercised by the learned Magistrate at any stage of the criminal proceeding. But in discharging the accused under the said sub-section Magistrate has to be satisfied that the charge is groundless and accordingly has to record reasons. This being the legal position, the order dt. 14-7-87 passed by the learned trial Court rejecting the petition of the accused/petitioners under Section 245(2), Cr. P.C. cannot stand.
7. The next question which needs consideration is whether the present proceeding is liable to be quashed. A contention has been raised that this Court has no power to quash a proceeding under Section 397 as the initial order of issuance of processes is an interlocutory order. In this connection my attention has been drawn to the decision of the Apex Court in Madhu Limaye v. State of Maharashtra , wherein it was held that the inherent power of the High Court is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party, that it should be exercised very sparingly to prevent abuse of process of the Court or otherwise secure ends of justice and that it should not be exercised as against the expressed bar of law engrafted in any other provision of the Code. In my opinion, the power of the High Court to quash a criminal proceeding by invoking its inherent power under Section 482, Cr. P.C. is well settled by numerous decisions of the Apex Court and I would like to refer to the decision in J. P. Sharma v. Vinod Kumar Jain .
8. The Apex Court has laid down the guidelines of quashing a criminal proceeding. These are as follows:
(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their fresh value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defeats, such as, want of sanction, or absence of a complaint by legally competent authority and the like see R.P. Kapur v. State of Punjab and Smt. Nagawwa v. Veeranna .
9. Mr. De, learned Counsel for the opposite party, has rightly drawn my attention to the decision of the Apex Court in Hareram Satpathy v. Tika Ram Agarwala wherein it was held that High Court in such a matter cannot enter into detailed discussion of the merits or demerits of the case and scope is very limited.
10. Mr. De, learned Counsel for the opposite party, has also drawn my attention to the decision of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi wherein it was held that proceedings against art accused in the initial stage can be quashed only if on the face of the complaint or the papers accompanying the same no offence is constituted and in doing so the Court cannot add or subtract anything. Situated thus legal position for quashing a criminal proceeding is well settled and the Court can quash a criminal proceeding by invoking its inherent power under Section 482, Cr. P.C. if any one of the four conditions as laid down by the Apex Court as mentioned above is satisfied, In examining a case for the purpose the Court has only to consider the complaint petition, initial statement of the complainant and other papers accompanying the said petition and nothing can be added or subtracted. The Court also cannot enter into detailed discussion on merits or demerits of the case.
11. Now let me apply law to the case in hand. In the complaint petition, it is clearly stated that complainant and 3 other persons executed a general power of attorney in favour of the accused-petitioners empowering him to sell about 30 Bighas of land. The above four persons are joint owners. But before the criminal court, only the complainant has come forward to start the proceeding against the accused and other three persons have neither withdrawn the general power of attorney nor made any complaint to the Court. It is further alleged that the accused persons sold about four bighas of land and according to the complainant these four bighas belonged to him. As all the accused persons were joint owners and there is nothing on record to show that there was partition of the land in question, I fail to understand how the complainant alone can claim that the land sold belonged to him. That apart, it is admitted by the complainant that the accused persons are entitled to a commission of 2% and this commission has also to be deducted from the sale proceeds of the land. Though there is an allegation of inducement regarding execution of the power of attorney in favour of the accused persons no reasonable person can accept this statement more particularly in view of the fact that the power of attorney was executed not only by the complainant but by three other persons, Mr. Chaudhury, learned Counsel for the accused-petitioners has rightly submitted that sale proceeds are to be divided for distribution to the four owners of the land, and as such, refusal of the accused/petitioners to hand over the entire amount to the present complainant is valid and justified. I am, therefore, of the opinion that from the complaint petition without adding or subtracting anything no prima facie case under Section 406/402/418IPC has been made out against the accused petitioners. The present dispute is out and out a civil dispute. In fact the complainant has already approached the Civil Court.
12. I am, therefore, of the opinion that the allegations made in the complaint petition supported by the statement of the complainant taken at its face value does not make out a prima facie case for the present criminal proceeding against the accused persons, and as such, the present proceeding is liable to be quashed.

In the result, the Criminal proceeding registered as Case No. 443C/80 pending before the learned Judicial Magistrate, First Class, Guwahati is quashed and the Rule is made absolute.
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