Allahabad High Court
Jaiwardhan vs State Of U.P. And Anr. on 28 February, 2020
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL REVISION No. - 426 of 2020 Revisionist :- Jaiwardhan Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Bhuvnesh Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard Shri Bhuvnesh Kumar Singh, learned counsel for the applicant and learned A.G.A. Perused the record.
By means of the present revision the revisionist is assailing the validity of the order dated 16.11.2019 passed by learned Additional District and Session Judge, Nagina, District Bijnor in Criminal Revision No.189 of 2019 (Rohitash Kumar vs. State of U.P. and another) whereby the lower revisional court has set aside the order 3.5.2019 and remanded the matter back to the learned Magistrate for fresh consideration.
Contention raised by learned counsel for the revisionist is that the revisionist has moved an application u/s 245(2) Cr.P.C. seeking discharge from the allegation of Section 420 I.P.C.
At this juncture, it would be useful to quote Section 245 Cr.P.C. which reads thus :
"245. When accused shall be discharged.
(1) 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.
(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."
From the aforesaid provisions it is explicitly clear that in sub-section (1) of Section 245 Cr.P.C. the Magistrate is required to refer the evidences taking into account Section 244 Cr.P.C. and then after recording the reasons, if it goes unrebutted, the Magistrate is empowered to discharge the accused. Whereas in sub-section (2) of Section 245 Cr.P.C. a blanket power is given to learned Magistrate for discharge the accused at any previous stage without taking into account the evidences laid down in Section 244 Cr.P.C.
Needless to mention here that the order of learned Magistrate was challenged by the complainant himself and learned revisional court while discussing the evidences of Section 244 Cr.P.C. set aside the order dated 3.5.2019 passed by the learned Magistrate and has remanded the matter back for a fresh consideration u/s 245 (2) Cr.P.C. This is an anomalous situation but the fact remains that the matter has only been remanded back for fresh consideration before the Magistrate. No prejudice would caused to the applicant, if the matter is thrashed and well considered by the Magistrate once again. Since the revisional court himself has directed to decide the application u/s 245(2) Cr.P.C. It is expected from the learned Magistrate to decide the same within 8 weeks from the production of certified copy of the order uneffected by the observations made by the learned revisional court in its order.
With the aforesaid observations the revision stands disposed off.
Order Date :- 28.2.2020 M. Kumar