TMI Blog1987 (9) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... to a stage when the opposite party filed a complaint petition against the petitioners in the Court of the Judicial Magistrate, Kujang (I.C.C. Case No. 49 of 1985) under Sections 379 and 411 read with Section 34, I.P.C. When the said case was called on for hearing on 17-10-1985, the opposite party was found absent. His witnesses were also not present in Court The learned Judicial Magistrate, therefore, took the view that the opposite party was not interested in the prosecution case and so he discharged the petitioners under Section 245(2) of the Code. Against the aforesaid order the opposite party preferred a criminal revision and by the impugned order the learned Sessions Judge, after setting aside the order of discharge, directed restorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or hearing a petition filed by them for issuance of a search warrant with regard to the fishing trawler. It was mentioned that copy was served on the opposite party who endorsed objection. The learned Judicial Magistrate recalled the earlier order for putting up the case on 13-11-1985, because by then all of the petitioners had already appeared in Court and posted the case to 10-10-1985 for objection and hearing of the petition for issuance of search warrant and for hearing of the complaint petition also. After reading the order passed on 3-10-1985,1 entertained some doubt as to whether the opposite party had knowledge of the next date of hearing namely, 10-10-1985. But my doubt was cleared when I considered the crucial order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty was neither personally present in Court nor did his counsel apply for further adjournment. On the other hand, both of them were absent. The Judicial Magistrate seems to have waited till the afternoon expecting that the opposite party will appear, but as ultimately he did not, the impugned order of discharge was passed at 3.15 P.M. In view of the aforesaid facts, I find no factual reason to find fault with the order of the learned Judicial Magistrate. 4. Section 245(2) of the Code came up for interpretation before a Division Bench of this Court in (1986) 2 Orissa LR 493 : 1987 Cri LJ 555, Agadhu Das v. Baban Parida. It is held that if in any particular case, the complainant fails to produce his witnesses for which he has assumed respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. It is, thus clear that even before evidence is taken, the Magistrate has jurisdiction to discharge the accused if, for reasons to be recorded by him, he considers the charge to be groundless. In the present case, the learned Judicial Magistrate gave opportunity to the opposite party to produce and examine his witnesses and even adjourned the case at his request. But the opposite party himself committed default and did not even bother to take steps on 17-10-1985 till la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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