TMI Blog1999 (4) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... een granted by this Court and a vacate stay application has also been filed. Since the pleadings are complete and the matter was heard in detail the matter is finally decided. 2. A private complaint has been filed against the petitioner for the offence under Section 420, I.P.C. and Section 138 of the Negotiable Instruments Act. The learned Magistrate issued summons to the petitioner and after his appearance framed a charge under Section 420, I.P.C. and Section 138 of Negotiable Instruments Act. The contention of the petitioner is that the procedure adopted by the Magistrate in framing the charge is illegal in view of the provisions of Sections 244, 245 and 246 of the Criminal Procedure Code, whereas the contention of the respondent is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 246. (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try and which, in his opinion, could be adequatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution. Under Section 245, if after taking the evidence as referred in Section 244, the Magistrate considers that no case against the accused has been made out which goes unrebutted, would warrant his conviction, the Magistrate shall discharge him. If, on the other hand he finds evidence against the accused and finds there are grounds for presuming that the accused has committed an offence, he shall frame charge against him. This being the scheme laid down by Sections 244, 245 and 246, whether the petitioner was correct in stating that since no evidence has been taken under Section 244 therefore no charge could be framed under Section 246. The counsel for petitioner further submits that since no evidence was taken under Section 244 the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant would be running a risk of getting the accused discharged in terms of Sub-section (2) of Section 245. Section 245(1) lays down that, after the evidence is taken in terms of Section 244, the accused can be discharged by the Magistrate for reasons to be recorded that no case is made out against the accused on the basis of the evidence which even if goes unrebutted. But, Sub-section (2) lays down that the Magistrate is not powerless to discharge the accused, even before evidence under Section 244 is taken, if he considers the case to be groundless. So, if the evidence is not brought before the Magistrate in terms of Section 244, Cr. P.C. the complainant runs the risk of losing the case and the accused gets a chance of getting discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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