[Cites 7, Cited by 0]
Orissa High Court
Niranjan Jena vs Bishnu Prasad Mohapatra & .... Opposite ... on 17 December, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.356 of 2025
Niranjan Jena .... Petitioner
Mr. S. K. Dwibedi, Advocate
-Versus-
Bishnu Prasad Mohapatra & .... Opposite Parties
another
Mr. B. Mohanty, Advocate (O.P. No.1)
Mr. P.P. Behera, Advocate (O.P. No.2)
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
17.12.2025
Order No.
08. 1. Heard learned counsel for the respective parties.
2. Instant revision petition is filed by the petitioner
assailing the correctness of the impugned order dated 2nd June,
2025 passed in connection with 1.C.C. No.627 of 2021 as at
Annexure-1 by the learned J.M.F.C.-III (Cog. Taking), Cuttack
on the grounds stated therein.
3. Mr. Dwibedi, learned counsel for the petitioner submits
that the learned court below is grossly at fault in discharging
the opposite parties in terms of Section 245(2) Cr.P.C. in
absence of any evidence before charge. The submission is that
no evidence was received from the side of the petitioner and in
absence of the same, discharge under Section 245(2) Cr.P.C. is
not permissible and in support of such contention, a decision of
the Apex Court in Ajaya Kumar Ghose Vrs. State of
Jharkhand & another (2009) 43 OCR (SC) 228 is placed
reliance on. The further submission is that the learned court
below directed supply of a copy of the complaint and other
documents filed therewith in terms of Section 207 Cr.P.C. and
it was complied with and in the objection to such an application
from the side of the opposite parties, while demanding supply
of complaint, the petitioner requested for a direction to call for
Bank statements and without disposing of the same, it was
followed by the order of discharge under Section 245(2)
Cr.P.C. According to Mr. Dwibedi, learned counsel, there has
been no evidence received from the side of the petitioner and
the opposite parties as a result have been discharged by the
impugned order dated 2nd June, 2025 i.e. Annexure-1, which is
not legally tenable and hence, liable to be interfered with and
set at naught.
4. Mr. Behera, learned counsel for opposite party No.2, on
the other hand, submits that the petitioner did not lead evidence
despite ample opportunity provided as the proceeding in 1.C.C.
No.627 of 2021 suffered number of adjournments as revealed
from the order sheets of the learned court below. Furthermore,
the submission is that the learned court below did possess the
power to discharge the opposite parties in terms of Section
245(2) Cr.P.C. at any stage even before receipt of evidence
under Section 244 thereof, hence, rightly passed the impugned
order at Annexure-1. In support of the contention advanced,
Mr. Behera, learned counsel cited a decision of this Court in
Agadhu Das Vrs. Baban Parida and others 1987 Criminal
Law Journal 555 and other case laws. The submission is that a
court has the jurisdiction to discharge an accused, which is not
barred in view of Section 245(2) Cr.P.C as the language
employed therein is to the effect that nothing in sub section(1)
shall be deemed to prevent a Magistrate from discharging the
accused at any previous stage of the case, if for the reasons to
be recorded by such Magistrate, who considers the charge to be
groundless. The contention is that the exercise of jurisdiction
while discharging the opposite parties is in accordance with law
and as per Section 245(2) Cr.P.C. and therefore, the impugned
order dated 2nd June, 2025 at Annexure-1 does not suffer from
any legal infirmity.
5. On perusal of the order sheets as at Flag-F, it is made to
reveal that on 31st July, 2024, the learned court below directed
compliance of Section 207 Cr.P.C. and thereafter, proceeded to
fix the hearing on 17th August, 2024 for evidence before charge
and on the date fixed, received the application under Section
245 Cr.P.C and it was finally disposed of vide Annexure-1.
6. In course of hearing, Mr. Behera, learned counsel for
opposite party No.2 would submit that the petitioner is at
default in leading evidence and that apart, the learned court
below found the charge to be groundless, hence, the discharge
directed under Section 245(2) Cr.P.C. But, in Ajaya Kumar
Ghose (supra), it has been held and observed that the clause
with the expression 'at any previous stage of the case' would
only mean that even with a single witness, the Magistrate may
proceed to frame the charge and while reaching at such a
conclusion, an earlier case law in P Ugender Rao & others
Vrs. J. Sampoorna and others 1990 Criminal Law Journal
762 has been quoted with approval. On the other hand, Mr.
Behera, learned counsel for opposite party No.2 refers to a
decision of the Apex Court in Vishnu Kumar Shukla and
another Vrs The State of Uttar Pradesh & another in SLP
(C) No.8658 of 2017 dated 28th November, 2023 to contend
that at any stage even before receiving evidence, jurisdiction
under Section 245 (2) Cr.P.C. can be exercised. On a reading of
the said judgment, the Court further finds that the decision in
Ajaya Kumar Ghose (supra) has been referred to and therein,
discharge was directed with the observation that one should be
protected against vexatious and unwarranted criminal
prosecution and from unnecessarily made to go through the
rigours of an eventual trial. But on a sincere reading of the
decision in Ajaya Kumar Ghose (supra), it has been made
clear that any such discharge shall have to be with evidence
received under Section 244 Cr.P.C.. It is held therein that the
interpretation on the words 'at any previous stage of the case'
occurring in Section 246(1) Cr.P.C. is in consonance with the
other provisions of the Code, as such provision stipulates a
procedure to be followed by the accused if not discharged and
the same would come into play only after the matter is
examined in the light of Section 245 Cr.P.C and therefore, it is
incumbent upon the Magistrate to examine the case for the
purposes considering the question, whether, the accused could
be discharged and only when, it finds otherwise, to resort to
Section 246 Cr.P.C.. Considering the above case law cited by
Mr. Dwibedi, learned counsel for the petitioner, which virtually
overruled the decision in Agadhu Das (supra), the Court is of
the view that power under Section 245(2) Cr.P.C. is exercisable
at any stage prior means with some evidence on record and not
in absence thereof.
7. In fact, the exercise is undertaken by a Magistrate upon
receiving a complaint with the issuance of notice under Section
244 Cr.P.C. and receiving such evidence produced from the
side of the complainant, discharge of the accused would arise
only if upon taking all such evidence received, the Magistrate
considers that no case against the accused has been made out,
which if unrebutted would warrant his conviction. As to sub-
section (2) of Section 245 Cr.P.C., though, a Magistrate has the
powers to deal with discharge an accused at any stage before
but in view of the decision in Ajaya Kumar Ghose (supra), it
has to be held that he has the jurisdiction to do so only after
receiving some evidence under Section 244 Cr.P.C..
8. In the case at hand, as it appears, after the order dated
31st July, 2024, the learned court below proceeded to fix the
matter on 17th August, 2024 with a direction to the petitioner to
adduce evidence before charge but as earlier stated, on the said
date, the application under Section 245 Cr.P.C. was received
from the opposite parties, whereafter, the impugned order dated
2nd June, 2025 at Annexure-1 has arrived. Under the above
circumstances, it cannot be said that the petitioner was at
default or was not inclined to adduce evidence or deliberately
avoided to lead evidence. Furthermore, any such discharge
under Section 245(2) Cr.P.C. is only upon a satisfaction
reached at by a Magistrate that the charge to be groundless.
Such an exercise is undertaken by a Magistrate upon receiving
the evidence not on account of any such default by the
complainant. Considering the submissions of learned counsel
for the respective parties and in view of the decision in Ajaya
Kumar Ghose (supra), the Court is of the humble view that the
impugned order dated 2nd June, 2025 at Annexure-1 cannot be
sustained in law, hence, it has to be interfered with followed by
a consequential direction issued in that regard.
9. Accordingly, it is ordered.
10. In the result, the revision petition stands allowed. As a
necessary corollary, the impugned order at Annexure-1 in
1.C.C. Case No.627 of 2021 is hereby set aside with a direction
to the learned J.M.F.C.-III (Cog.Taking), Cuttack to receive
evidence from the side of the petitioner under Section 244
Cr.P.C. and thereafter, to proceed to dispose of the complaint
as per and in accordance with law. It is further directed that the
petitioner shall lead evidence before charge within three weeks
to commence after 2nd January, 2026 and learned court below
shall do well to avoid unnecessary adjournments and thereafter
to deal with any such application in terms of Section 245(1)
Cr.P.C. in case filed by the opposite parties with an order
thereon at the earliest on merits in accordance with law.
11. Issue urgent certified copy of this order as per rules.
(R.K. Pattanaik)
Judge
Balaram
