Sashikala W/O Ghanshyam Gaikwad vs Moresh Eknath Jambhulkar And Anr.
2004 Latest Caselaw 649 Bom

JUDGMENT

A.P. Lavande, J.

1. This is an Application under Section 482 of the Code of Criminal Procedure filed by the original accused in Regular Criminal Case No. 393/93. The respondent No. 1 filed Criminal Case No. 393/93 under Sections 416, 418, 468, 471 and 476A of the Indian Penal Code before the Judicial Magistrate, First Class, Nagpur. The process was issued against the applicant on 7-10-1993. After recording evidence before the charge, the learned Judicial Magistrate, First Class, Nagpur was pleased to discharge the accused under Section 245 of the Code of Criminal Procedure. The respondent No. 1 filed Criminal Revision Case No. 500/2002 in the Court of Sessions Judge, Nagpur challenging the Order of discharge. When the Revision was filed by the respondent No. 1 herein, an application dated 30-8-2003 was filed by the present applicant objecting to the maintainability of the Revision on the ground that the Revision was not maintainable as against the order passed by the learned Magistrate discharging the accused. This objection was rejected by an order dated 12-11-2003. The applicant challenges the Order dated 12-11-2003 by filing the present application under Section 482 of the Code of Criminal Procedure.

2. Section 482 of the Code of Criminal Procedure which deals with the inherent powers of the High Court can be invoked either to prevent abuse of the process of the Court or otherwise to section secure ends of justice.

3. I have heard Dr. Anjan De for the applicant, Shri Mathur for respondent No. 1 and Mr. Ahirkar, A.P.P. for respondent No. 2. Dr. Anjan De for the applicant submitted that although it has been held by the Supreme Court that a Revision against the order of discharge in maintainable, the Apex Court has not considered section 300 of the Code of Criminal Procedure and more particularly explanation to section 300 which reads as under :

"The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section."

Section 300 of the Code of Criminal Procedure clearly states that a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereof.

4. Dr. Anjan De for the applicant has relied upon the judgment of the Supreme Court , Municipal Corporation of Delhi v. Girdharilal Sapuru and others and submits that the explanation under section 300 only to be considered in the Context of section 300 only and, therefore, he submits that against the order of discharge passed under Section 245 of the Code of Criminal Procedure in a warrant case an appeal shall lie. In support of the interpretation sought to be advanced, Dr. De has relied upon the judgments , Easland Combines, Coimbatore v. Collector of Central Excise, Coimbatore and , Kanta Devi (Smt.) v. Union of India and Anr.

5.I have gone through these Judgments. It is not necessary for me to make detailed reference to the facts in these cases since in my opinion the ratio laid down in the said Judgment is clearly not applicable in the present case.

6. Chapter XIX of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates. Sections 213 to 215 deals with the procedures to be adopted by the Magistrate while dealing with the warrant case. Section 245 clearly provides that;

"245. When accused shall be discharged - (1) If, upon taking all evidence referred to in Section 244, the Magistrate consider, 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."

It is also pertinent to note that Section 248 of the Code of Criminal Procedure provides that in case the charge has been framed against the accused and the Magistrate finds the accused not guilty, he shall record an order of acquittal and in case he holds him guilty then he shall hear him on the point of sentence. In my opinion, the scheme of Chapter 19 is very clear. An order passed under Section 245 of the Code of Criminal Procedure is an order of discharge and by no stretch of imagination it could be said to be an order of acquittal. At this stage, it is pertinent to note that what is the scope of Section 245 has been decided by the Judgment of the Apex Court , State of Maharashtra vs. Som Nath Thapa. In the said case the Apex Court considered the scope of the provisions concerning framing of charge in respect of Sessions case, warrant case and summons case and this has been considered in paragraph No. 27 of the said judgment. In paragraph No. 32 of the said Judgment, the Apex Court has held that;

"32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into the materials brought on record by the prosecution has to be accepted as true at that stage."

The impact of the relevant section under the Code of Criminal Procedure dealing with framing of charge has been considered and to that extent the scope of Section 245 stands interpreted by the said decision of the Apex Court. In view of the clear decision of the Apex Court in the case of State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 17, 44, the submissions made by Dr. De cannot be accepted. The order passed by the Magistrate discharging the accused under Section 245 of the Code of Criminal Procedure is clearly revisable. In my opinion, the objection taken by the applicant before the Sessions Judge for the maintainability of the Revision Application was without any foundation. In my opinion the present application filed under Section 482 of the Code of Criminal Procedure itself is an abuse of the process of the Court.

7. Having regard to the law laid down by the Apex Court in the catena of decisions holding that the order framing charge or discharging the accused is revisable, the submission made by Dr. De that such order is appealable under Section 378 cannot be accepted. Having regard to the facts and circumstances, in my opinion, this is a case in which no interference is called for in exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure. In my opinion, filing of this application is nothing but an abuse of the process of the court and as such same deserves to be dismissed. Accordingly the present application filed under Section 482 of the Code of Criminal Procedure is dismissed. The applicant to pay costs of Rs. 1000/- to the respondent No. 1.