IN THE ESTABLISHMENT OF THE CHIEF JUDICIAL MAGISTRATE,

ABC

IN THE COURT OF JUDICIAL MAGISTRATE XVIII, ABC

Complaint Case No:1234 0f 2020
IN THE MATTER OF:-

An application under

Section 245(2) of the

Cr.P.C

AND

IN THE MATTER OF :

Name and Address of

Petitioners(Respondents):-

1. ABC, S/o TYU, Resident of Village :- CVB

…………Petitioners
(Respondents/Accused)
VERSUS

1. EFG, W/o JKL, Resident of :- FGH

………………..Respondent (Complainant)

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 Humble petition on behalf of the Petitioner
(Respondent/Accused) above mentioned is as follows;

Most respectfully Sheweth:-

1. That, the complainant of the Complaint Case No: 1234 of

2020 has been absent on the last Six dates; 19/03/2024,

06/03/2024, 08/02/2024, 31/012024, 06/01/2024 and,

21/12/2023.

2. That on the abovementioned dates when the complainant

was not present, no exemption application was moved by

the Learned counsel for the complainant and for this no

adjudication qua the absence of the complainant was done

by this Hon’ble Court on the abovementioned dates.

3. That it is submitted that this Learned Court had on 16 th

June 2022 initiated the procedure of taking evidence of

“Before Charge” witness/es and on subsequent dates.

However till 30th April 2023 there was no presentation by

any “Before Charge” witness from the

prosecution/complainant and the Learned Court had no

option but to close taking of evidence of “Before Charge”

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 witness/es on 30th April 2023 without taking on record any

evidence.

4. That in Nabaghan Malla And Ors. vs Brundaban Malla

on 15 September, 1987, 1989CRILJ381, Hon’ble Orissa

High Court held that non-appearance of the complainant

himself is a valid ground for the discharge of the accused.

Hon’ble Orissa High Court held that;

“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 responsibility,

and the case is dragged on due to such successive

lapses on the part of the complainant, there is

nothing inherently unreasonable for the Magistrate

to come to the conclusion that the charge is

groundless so as to discharge the accused. To hold

the contrary would be to grant a premium to the

complainant to prolong the harassment to the

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accused. Although AIR 1979 SC 94 : 1979 Cri LJ

41. Ratilal Bhanji Mithani v. State of

Maharashtra was not noticed, the principle laid

down therein supports the view of the Division

Bench. Section 253 of the Code of Criminal

Procedure, 1898 (referred to as the 'old Code')

corresponds to Section 245 of the Code. The

provisions of both the sections are identical.

Particularly, Sub-section (2) of Section 245 is a

repetition of Sub-section (2) of Section 253.

Interpreting Section 253 of the old Code the

Supreme Court held that in a warrant case instituted

otherwise than on a police report, 'discharge' and

'acquittal' of accused are distinct concepts

applicable to different stages of the proceedings in

Court. The legal effect and incidents of 'discharge'

and ‘acquittal’ are also different. An order of

discharge in a warrant case instituted on complaint,

can be made only after the process has been issued

and before the charge is framed. Section

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253(1) shows that as a general rule there can be no

order of discharge unless the evidence of the

prosecution witnesses has been taken and the

Magistrate considers 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 late hours. In such circumstance, there

was no impediment on the way of the learned

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 Judicial Magistrate to consider that the charge

brought by the opposite party against the

petitioners was groundless. It was not possible on

his part to act as the prosecutor and suo motu

adjourn the case to another date to the utter

detriment of the interest of the petitioners who

stood accused with the Sword of Democles hanging

on their heads. Patently, the learned Sessions Judge

did not examine the above aspects and did not

notice the Division Bench case of this Court and so

he erroneously held that the learned Judicial

Magistrate did not assign any reason although, as a

matter of fact, specific reasons for discharging the

petitioners have been assignee in the order of the

learned Judicial Magistrate. The impugned order

being erroneous on facts and law cannot be

supported”.

5. That section 245(2) of Cr.P.C provides a statutory right to

accused.

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6. That absence of the complainant on last 06 dates of the

proceedings clearly shows her malafide intention to drag

on the proceedings without appearing before the Hon’ble

court.

7. That Section 245(2) Cr.P.C has been made a part of a

criminal procedural law with the purpose to protect the

interest of the accused against any malafide prolongation

of trial at the hands of a vexatious complainant. It aims to

ensure the presence of a complainant in a court of law, in

course of complaint proceedings, on such occasions where

the presence of the complainant is necessary to take the

case forward.

8. That Hon'ble Madhya Pradesh High Court in State Of

Madhya Pradesh vs Punamchand And Ors. on 29

July, 1986, 1987CRILJ1232 held:

"Justice has to be done to both the contending

parties. In the instant case when the complainant

did not appear on the several dates fixed for

hearing of the case without any intimation and no

steps were taken to produce the witnesses or

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 request the Magistrate to grant further time for the

purpose or to issue summons, it cannot be said that

in exercising the judicial discretion in discharging

the petitioner, the learned Magistrate has

committed any error resulting in any miscarriage of

justice. The Food Inspector ought to have taken

necessary steps. No doubt, as pointed out in the

decision in State of M. P. v. Ramsingh, 1976 Jab LJ

696 once the Court has ordered issue of summons to

the witnesses it is duty bound to procure their

attendance without the requirement of a fresh

application for the purpose but such was not the

situation in the case in hand. The decision in State

of M.P. v. Nathulal 1983 M P W R 246 is also

distinguishable”

9. That, It is settled position of law, as has been laid by

Hon'ble Higher courts in catena of judgments, that in

exercising the aforesaid discretion u/s 245(2) Cr.P.C the

conduct of the complainant is of utmost importance. A

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matter cannot be allowed to be lingered on for eternity, at

the cost of prejudice the rights of the accused.

It is therefore humbly

prayed that your Honour

may graciously be please to

allow this petition and

discharge all the petitioners

of this petition,

(respondents/accused) in

the complaint case no: 1234

of 2020.

AND

For this the petitioners

(respondents/accused) as in

duty bound shall ever pray.

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