The Madras High Court while discussing the scope of Magistrate to discharge accused under Section 245(2), clarified that 'at any previous stage' indicates any stage after the cognizance is taken and not 'check and call on' stage.
The single-judge bench of Justice D. Bharatha Chakravarthy while setting aside the discharge order of the respondent by Judicial Magistrate, Special Court Customs observed that even though the words “at any previous stage of the case” is meant to from the stage of inception i.e., under Section 200 of Cr.P.C., the same would not be extended to the 'check and call on' stage as it will be in the domain of the complainant, if the complaint is returned to modify, add, delete the contents of the complain.
The offense complained was punishable with a maximum punishment of Seven years and therefore Section 245 Cr.P.C was the relevant provision applicable.
Discharge under Section 245(1) is after recording of evidence , if there is no ground to proceed. Only under Section 245(2), the accused can be discharged at any state prior to the same.
Noting that if the charge is groundless then the learned Magistrate is empowered to discharge the Accused under Section 245(2) of Cr.P.C, the Court formed the legal question to be settled which was:
Whether the phrase “at any previous stage of case” would amount even at the presentation and “check and call on” stage of the complaint, that is, when the complaint is neither taken on file, nor the proceedings under Section 200 CrPC has taken place by examination of the complainant on oath and or taking cognizance of offenses?
The Court mentioned Ajoy Kumar Ghose Vs. State of Jharkhand & ANR, 2009 Latest Caselaw 297 SC wherein the meaning of phrase “at any previous stage of the case” was examined by the Supreme Court.
It was drawn from the judgement that previous stage could be from the stage of Section 200 of Cr.P.C., whereby the learned Magistrate upon taking cognizance, is entitled, either to straight away issue process or conduct an enquiry by postponing the issue of process under Section 202 of Cr.P.C. Thereafter, either he can issue process or dismiss the complaint under Section 203 of Cr.P.C.
The Court further mentioned Manharibhai Muljibhai Kakadia & ANR Vs. Shaileshbhai Mohanbhai Patel & Ors., 2012 Latest Caselaw 553 SC wherein the Court examined as to when the learned Magistrate can be said to have been taken cognizance of the offense after considering the entire law in the subject.
In background of the above, the Court opined that depending on the circumstances of the case, it can be held that even before the issue of process or examining the sworn statement of the complainant, there could be cognizance in a particular case.
"The only requirement is that the learned Magistrate should have taken authoritative notice of the allegations made in the complaint. In this case, upon presentation of the complaint, without taking any authoritative notice, the matter was simply adjourned to another day with the endorsement “check and call on”. Neither the complaint is numbered nor the sworn statement is recorded. This is the stage, in which the form of the complaint is being looked into before taking notice of any kind of the allegations in the complaint."
It is in this context , the phrase “at any previous stage of the case” means a case on file with cognizance being taken , as otherwise, there cannot be a 'discharge' from the case, the Court said.
It was thus of the view that in this case, the stage of Section 200 of Cr.P.C., itself has not commenced and even before that such application (discharge) cannot be filed. Even by giving the meaning of widest import, ignoring the procedure of sworn statement, even ignoring the numbering of the complaint, if one has to see only whether there was any application of mind or authoritative notice of allegations by the Magistrate, the answer in this case, is in the negative.
Thus, except for receiving a complaint under Section 190 (a) of Cr.P.C., the case the proceedings as per Section 200 have not even commenced, the Court concluded.
"Therefore, even though the words “at any previous stage of the case” is meant to from the stage of inception i.e., under Section 200 of Cr.P.C., the same would not be extended to the 'check and call on' stage as it will be in the domain of the complainant, if the complaint is returned to modify, add, delete the contents of the complaint ."
On the basis of the above observations, the Court noted the application filed by the Accused No. 1, even though the couched in the phrase of ' dropping of all further proceedings' can mean an application for discharge as per Section 245(2) only and still it is pre-mature.
CASE TITLE: The Assistant Commissioner of Customs VS S.Ganesa
CASE DETAILS: Crl.R.C.No.372 of 2022
CORAM: Justice D. Bharatha Chakravarthy
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