Court No. - 5 Case :- U/S 482/378/407 No. - 2922 of 2010 Petitioner :- Shiv Kumar And 4 Others Respondent :- State Of U.P. Thru. Secy. Home Deptt. And Another Petitioner Counsel :- Piyush Kumar Singh Respondent Counsel :- Govt. Avocate Hon'ble Vedpal,J.
This petition under Section 482 Cr.P.C. has been filed against the order dated
13.10.2008, passed by Additional Chief Judicial Magistrate, Ist, Hardoi in
Criminal Case No.3428 of 2007 Smt. Ram Pyari Vs Jai Prakash alias Babloo
and others under Sections 498-A,323,504 I.P.C. and 3/4 Dowry Prohibition
Act, Police Station Sandila, district Hardoi whereby an application moved by
the petitioners for discharge was directed to be put up for orders after
evidence under Section 244 Cr.P.C.
Grievance of the petitioners is that a false complaint was made against them
and there was no evidence against them and they were liable to be discharged
but the learned Magistrate instead of discharging them and without
considering their said application passed impugned order,directing that the
application shall be heard after recording evidence under Section 244 Cr.P.C
and as such the impugned order is not valid order.
Learned A.G.A. opposed the petition by contending that the order passed by
the learned court is in consonance with the provisions of Section 245
(1)Cr.P.C. There is no irregularity or illegality in the order and as such the
petition deserves rejection.
Considered the respective submissions made by the parties.
For the determination of the above controversy between the parties it is
necessary to go through the provisions of Section 245 (1) Cr.P.C.
Section 245 (1) Cr.P.C. provides as under:-
” If, upon taking all the evidence referred to in section 244 the Magistrate
considers, 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.”
The petitioners had sought their discharge before completion of evidence
under Section 244 of the Cr.P.C. ,on the ground that a false complaint has
been made against them. The discharge was not sought on any technical
ground like want of sanction, incompetence of complainant to file the
complaint or any other inherent defect. Section 245 (2) Cr.P.C. provides
discharge at an early stage only in such case where discharge is sought on the
ground of technical defects , stated above.
In view of above, when the evidence under Section 244 Cr.P.C. was being
recorded it was not proper for the learned Magistrate in the mid of the
proceedings to consider the question of discharge. Thus the order, passed by
the learned Magistrate is in consonance with the provisions of Section 245
(1) Cr.P.C. and does not require any interference.
Learned counsel for the petitioners has also submitted that since long ,case is
at the stage of evidence under Section 244 of the Cr.P.C. and it is necessary
to issue the direction for expeditious disposal of the matters.
In view of above, the petition is disposed of finally at this stage with the
observation that impugned order does not require any interference in this
petition .However, it is directed that learned trial court shall expedite the
disposal of the case pending before him , keeping in view the provisions of
Section 309 Cr.P.C.
Order Date :- 16.7.2010
Tripathi