AJOY KUMAR GHOSE versus STATE OF JHARKHAND & ANR.

Citation: [2009] 4 S.C.R. 515 · Decided: 18-03-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 4 S.C.R. 515 
AJOY KUMAR GHOSE 
A 
V. 
STATE OF JHARKHAND & ANR. 
Criminal Appeal No. 485 of 2009 
MARCH 18, 2009 
B 
(TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.) 
J 
Code of Criminal Procedure, 1973: 
Sections 244, 245, 246 - Official complaint from Registrar 
General of High Court stating that the accused persons were c 
guilty of using a fabricated and forged letter in the court with 
active connivance and conspiracy on their part - Summons 
issued -Application under s. 245(2) Cr.PC. rejected- Charges 
framed - Correctness of - Held: The charges framed clearly 
premature - There should be evidence before framing the 
D 
charges - Opportunity to cross examine is lost- Order framing 
the charge quashed - Matter to go back to Trial Court -
Prosecution to offer witnesses under s.244(1) Cr.PC. and 
opportunity to cross-examine - Only thereafter Trial Court 
would proceed to decide as to whether the charges to be framed 
E 
or not- Penal Code, 1860, Sections 177, 181, 182, 192, 196, 
199, 209, 466, 468, 471, 474 . 
.. 
The Registrar General of High Court made a 
complaint to the effect that the accused persons were 
guilty of using a fabricated and forged letter in the court 
F 
with active connivance and conspiracy on their part. The 
CJM took cognizance of the complaint and ordered issue 
of summons. Accused approached the High Court by way 
of writ petition and it was dismissed. SLP was filed in 
_, 
Supreme Court and it was dismissed as premature. G 
Appellant thereafter appeared before the CJM, obtained 
bail and moved an application for discharge. The trial court 
dismissed the application and proceeded to frame 
515 
H 
516 
SUPREME COURT REPORTS 
[2009) 4 S.C.R. 
A charges. Appellant approached the High Court by filing a 
writ petition which was dismissed. Hence the appeal. 
Disposing of the appeal, the Court 
HELD: 1.1 There is a clear difference in Sections 
8 
245(1) and 245(2) of the Cr.P.C. Under Section 245(1 ), the 
Magistrate has the advantage of the evidence led by the 
prosecution before him under Section 244 and he has to 
consider whether if the evidence remains unrebutted, the 
conviction of the accused would be warranted. If there is 
c no discernible incriminating material in the evidence, then 
the Magistrate proceeds to discharge the accused under 
Section 245(1) Cr.P.C. [Para 16] [530-F-G] 
1.2 The situation under Section 245(2) Cr.P.C. is, 
however, different. There, under sub-Section (2), the 
D Magistrate has the power of discharging the accused at 
... 
any previous stage of the case, i.e., even before such 
evidence is led. However, for discharging an accused 
under Section 245 (2) Cr.P.C., the Magistrate has to come 
to a finding that the charge is groundless. There is no 
E question of any consideration of evidence at that stage, 
because there is none. The Magistrate can take this 
decision before the accused appears or is brought before 
the Court or the evidence is led under Section 244 Cr.P.C. 
The words appearing in Section 245(2) Cr.P.C. "at any 
F previous stage of the case", clearly bring out this position. 
[Para 17] [530-H; 531-A-B] 
1.3 The previous stage referred to under Section 245 
Cr.P.C. normally comes to an end, because the next stage 
is only the appearance of the accused before the 
G Magistrate in a warrant-case under Section 244 Cr.P.C. 
Under Section 244 Cr.P.C., on the appearance of the 
accused, the Magistrate proceeds to hear the prosecution 
and take all such evidence, as may be produced in 
support of the prosecution. He may, at that stage, even 
H issue summons to any of the witnesses on the application 
) 
AJOY KUMAR GHOSE V. 
517 
STATE OF JHARKHAND & ANR. 
made by the prosecution. Thereafter comes the stage of A 
Section 245(1) Cr.P.C., where the Magistrate takes up the 
task of considering all the evidence taken under Section 
244(1) Cr.P.C., and if he comes to the conclusion that no 
case against the accused has been made out, which, if 
unrebutted, would warrant the conviction of the accused, B 
the Magistrate proceeds to discharge him. The situation 
under Section 245(2) Cr.P.C., however, is different, as has 
al.ready been' pointed out earlier. The Magistrate 
thereunder, has the power to discharge the accused at 
any previous stage of the case. Thus, the Magistrate can c 
discharge the accused even when the accused appears, 
in pursuance of the summons or a warrant and even before 
the evidence is led under Section 244 Cr.P.C., makes an 
applica

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