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I have considered the rival submissions so raised by learned counsel for the parties and perused the record.

Before considering the argument so raised by learned counsel for the applicants, it would be appropriate to have a look upon the provisions of Section 244 Cr.P.C, which deal with the cases instituted otherwise than on a police report. Section 244 Cr.P.C. reads thus:

"244. Evidence for prosecution.
(1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

From a reading of Section 244 Cr.P.C, it is apparent that first stage towards start of warrant trial is the appearance of the accused before the Magistrate concerned, as the clear mandate of Section 244 is "when accused appears or is brought before the Magistrate". Section 245 Cr.P.C. comes after Section 244 Cr.P.C., which is quoted hereunder:

From the aforesaid Sections, it is apparent that Magistrate after fulfilling the requirements of Section 244 Cr.P.C. shall proceed further to consider the prosecution case taking into consideration all such evidence as may be produced by prosecution in support of its case. Section 245 Cr.P.C. has two parts. First part relates to when evidence under Section 244 Cr.P.C. has been recorded and the second part relates to the power of Magistrate to discharge any accused at any previous stage of the case if for reasons to be recorded, he considers the charge to be groundless. The power of the Magistrate to discharge the accused undisputedly could be invoked during the trial. To reach the stage of Section 245 Cr.P.C, it is necessary that trial must begin in view of Section 244 Cr.P.C, when the accused appears or is brought before the Magistrate.

How the accused shall appear or brought before the Magistrate is to be considered in the light of provisions contained in Code of Criminal Procedure. But the fact remains that in spite of clear direction issued by this Court in their application under Section 482 Cr.P.C. No.2238 of 2017 vide order dated 23.01.2017, the accused-applicants failed to appear before the Court.

It is true that in view of Section 245 (2) Cr.P.C. the Magistrate is empowered to pass the order of discharge for the reasons to be recorded after appearance of the accused and before the evidence Section 244 Cr.P.C. or during the course of the day proceedings for recording the evidence under Section 244 Cr.P.C, but the Magistrate is not empowered to entertain any application under Section 245 (2) Cr.P.C. unless the accused has appeared or is brought before the court in terms of Section 244 Cr.P.C. Therefore, it cannot be said that accused without putting his appearance before the court may participate in any proceedings or trial pending before a competent court.