Pvr v. Uttam Ambadas Rai (Kala) & Anr.

Mr.Prasad Kulkarni, for Petitioners. --- Mr.Sachin Gite, for Respondent no.1. Mr.S.R.Shinde, APP for State. --- CORAM : K.U.CHANDIWAL, J. DATED : 26th July, 2012 P.C. : Heard the learned Counsel for accused-petitioners.. The learned J.M.F.C, Nashik on 6.11.2009 discharged the accused-petitioners, same was questioned by the respondent no.1 as complainant before the learned District Judge in Criminal Revision no.834 of 2009. The learned District Judge analysing the legal position, set aside the order of discharge dated 6.11.2009 and sent the matter to the learned J.M.F.C., Nashik (Court No.2) for deciding the matter expeditiously.

The learned Counsel submits that in tune with the language under Section 245 of Cr.P.C., the learned Judge was justified in discharging the accused-petitioners. Pvr

wp744-11.sxw Basically the process was issued against the accused-petitioners for offence punishable under Sections 418, 427, 477 r/w. 34 of IPC. The learned Judge was expected to hear the prosecution and take all the evidence as may be produced in support of the prosecution in terms of Section 244 of Cr.P.C.

Section 245(2) of Cr.P.C. to which recourse is sought to be taken, could not have been coined by the learned Judicial Magistrate. The complainant was present, even as per the Court's noting. There is nothing to suggest that the complainant protracted the matter and was showing any laxity in prosecuting his complaint. It was expected from the learned Magistrate to have heard the complainant, ought to have recorded further evidence of witnesses to have taken all possible evidence as could be produced by the complainant, no such opportunity was exercised. The order was naturally and legally set aside by the learned Additional Sessions Judge by allowing the revision. Writ petition lacks merit, dismissed. This Court has not opined on merits of the complaint, the learned Judge, shall be justified in entertaining the application for discharge, if moved.

(K.U.CHANDIWAL, J.)