Jagdish Singh And 3 Others vs State Of U.P. And Another

1. No one is present on behalf of the revisionists to press the revision, even though the name of Mr. Vivek Kumar Singh is duly published in the cause list as learned counsel for revisionists.

2. On the previous occasion, learned counsel for O.P. No. 2 has declined to file any counter affidavit. The revision has been pending since 2024.

3. In view of above, disposal of this revision on merits, without affording an opportunity to the revisionists, is expedient.

4. Heard Sri Vivek Kumar Singh for O.P. 2 and Mr. S.K. Ojha, learned A.G.A. for State/O.P. No. 1 and perused the record.

5. The present revision has been preferred by the revisionists assailing the impugned order dated 05.09.2024 passed by the Judge, Gram Court, Amritpur, Farrukhabad (herein after referred to as "Jurisdictional Magistrate") in Complaint Case No. 511 of 2023 (Ram Naresh Vs. Jagdish and others), under Sections 323, 504, 506 IPC, P.S. Rajepur, District Farrukhabad, whereby the jurisdictional Magistrate rejected the application of the revisionists under Section 245(1) of Cr.P.C., stating that proceedings under section 244 Cr.P.C. could not be initiated due to the continuous absence of the revisionist. It was further observed that since the stage of Section 244 Cr.P.C. had not been completed, the application under section 245(2) Cr.P.C. is not maintainable.

6. Feeling aggrieved by the impugned order, the present criminal revision has been filed on the ground that the impugned order is bad in law, having been passed without applying judicial mind and considering the applicable law, the revision deserves to be allowed.

7. Learned A.G.A. for the State and learned counsel for O.P.2 have vehemently opposed the criminal revision and submitted that the statements of the complainant's witnesses under Section 244 Cr.P.C. could not be recorded till today due to continuous absence of revisionists. It is further submitted that proceedings under Section 245(1) Cr.P.C arise only after completion of procedure under section 244 Cr.P.C. The impugned order is just and has been rightly passed by the jurisdictional Magistrate. The impugned order suffers from no illegality and thus deserves to be affirmed and, therefore, present revision is liable to be dismissed.

8. Having heard the submissions urged by learned counsel for O.P. No. 2 as well as the learned A.G.A. for the State and considering the provisions contained in Section 245 Cr.P.C., the same are reproduced as under : "245. When accused shall be discharged.(1)If, upon taking all the evidence referred 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."

9. Considering the above provision, in my view, an application under Section 245(1) Cr.P.C. can be decided only after consideration of evidence under Section 244 Cr.P.C. However, Section 245 (2) Cr.P.C. provides that nothing in this section shall be deemed to prevent the Magistrate from discharging the accused at any previous stage, meaning thereby jurisdiction Magistrate can pass the order even before the completion of procedure under section 244 Cr.P.C. The court is the master of its procedure. It is court's duty to examine the application presented before it and determine whether it is maintainable under the relevant provision or any other provision. If such application is maintainable under any other provision, the same must be considered and such application can not be held as not maintainable. Therefore, the findings recorded by the jurisdiction Magistrate is not correct in law.

10. In view of the above, the jurisdictional Magistrate should have passed the order in the light of evidence available on record, but the same application can not be rejected on the ground of maintainability under Section 245(i) Cr.P.C.. Therefore, the impugned order is liable to be set aside.

11. The present revision is allowed. The impugned order passed by the jurisdiction Magistrate is hereby set aside.

12. The Court concerned is directed to pass a fresh order in the light of observation made by this court.

13. Parties are directed to appear before the court concerned on 20.05.2026.

(Lakshmi Kant Shukla,J.)

May 6, 2026

RPD