Magistrate Cannot Discharge Accused U/S 245(2) CrPC On The Ground That Complainant Was Absent Without Recording Reasons & Examining Witnesses: Calcutta HC

The Calcutta High Court has recently held that a Magistrate while discharging an accused under Section 245(2) CrPC has to record reasons showing that no case has been made out and thus cannot simply order for such discharge on the ground that the complainant has failed to show cause by not verifying and affixing proper signature on the application. 

Justice Ananda Kumar Mukherjee observed, 

"In my considered view it would be a legal necessity on the part of learned Magistrate under section 245 (2) of the Cr. P.C to consider and record reasons that no case against the accused has been made out which, if unrebutted would warrant his conviction. In absence of such evidence the accused may be discharged. I do not find any such finding or observation made by the learned Magistrate in the impugned order. It appears that learned Magistrate has been swayed by the sole reason that he did not find the cause shown by the complainant to be in proper form."

The Court further noted that an accused can be discharged under Section 245(2) CrPC if the Magistrate for reasons recorded comes to the conclusion that the charge is groundless. However, it was observed that in the instant case, the Magistrate has discharged the accused without considering the evidence of the complainant (PW-1) and the concerned S.I of Police (PW-2). 

"The provision under section 245 of the Criminal Procedure Code however does not foresee a situation where the absence of the complainant can be a ground for discharging of the accused without considering the evidence already adduced by the complainant witnesses before charge", the Court underscored further. 

Accordingly, the Court set aside the impugned order of the Magistrate on the ground that it suffers from illegality and impropriety. 

Background 

In the instant case, the petitioner had filed a revision petition under Section 482 CrPC being aggrieved by the order dated November 16, 2019 issued by the concerned Judicial Magistrate wherein the accused had been discharged under Section 245 (2) CrPC due to absence of the complainant on the date fixed for evidence. 

The accused had been charged under Section 420 (cheating and dishonestly inducing delivery of property) and Section 120B (criminal conspiracy) of the IPC. 

The impugned order had been passed by the Magistrate resorting to the fact that the application filed on behalf of the complainant showing cause, did not bear any verification or signature of the complainant.

Observations 

The Court at the outset observed that the alleged offences under Sections 420 and 120B of the IPC are cognizable but compoundable in nature. Furthermore, Section 249 CrPC was referred to which enumerates, "When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused." 

In this regard, the Court noted that in a warrant proceeding case arising out of a compliant, absence of a complainant may result in discharge of the accused person before a charge has been framed, if the offence is lawfully compoundable and it is not a cognizable offence. However, in the instant case the provisions of Section 249 CrPC shall not be applicable since the alleged offence is cognisable in nature, it was stated further. 

Furthermore, referring to the contention that the Magistrate had passed the impugned order on the basis of the fact that the application filed by the complainant showing cause, did not bear any verification or signature of the complainant, the Court remarked, 

"It is true that an application which contain some assertion should be verified by the person making the statements for holding such person responsible regarding its genuineness. However, there is no provision which makes such verification essential."

Referring to the facts of the case, the Court further noted that it is undisputed that the complainant has already been examined and that S.I. of police one Saroj Praharaj having been examined in part had subsequently appeared on another date for his evidence. However, he had not been examined by the Magistrate on the ground that the accused person was absent.

Terming the conduct of the petitioner as 'depreciable' for blaming the Court, the Court further remarked, 

"On the subsequent date the witness was not present and sought for time for his evidence but learned Magistrate had directed the complainant to show-cause for not appearing in person. Though order dated 15.10.2019 has not been produced by the petitioner, it appears from order dated 16.11.2019 that on 15.10.2019 the complainant was absent without steps and nobody represented him despite repeated calls and only at 12:25 p.m. the complainant was directed to show-cause. Non-production of order dated 15.10.2019 on the part of the petitioner does not extend any assistance to this court to observe whether the petitioner had at all been represented on that date or not and whether learned Magistrate was justified in issuing an order directing him to show-cause. This conduct of the petitioner of playing truant and blaming the court is indeed depricable."

The Court also dismissed the contention that West Bengal state amendment incorporating section 245(3) of CrPC specifies that an accused could be discharged if prosecution evidence was not completed within four years. In this regard, the Court observed further, 

"In the instant case no such reason has been assigned nor had there been any direction to the complainant to adduce evidence within any specified period. To the contrary, it has been noticed that even after a direction passed by this court to dispose of the case at the earliest, proceeding in that regard was conspicuously absent", the Court observed. 

Accordingly, the Court set aside the impugned order and further directed the concerned Magistrate to give opportunity to the complainant to adduce evidence within a reasonable period from the date of communication of the order, preferably within 6 months.

Case Title: Supratik Ghosh v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 24

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