S.245 CrPC | Mandatory For Magistrate To Record Reasons While Allowing/Rejecting Discharge Petition Of Accused: Orissa High Court

The Orissa High Court has held that it is mandatory for the Magistrate to record reasons for not only allowing but also for rejecting a discharge petition filed by an accused under Section 245 of the Code of Criminal Procedure ('CrPC'). Clarifying the requirement under the provision of law, the Single Bench of Justice Sashikanta Mishra observed –“The language used in Section 245, “and record his reasons for so doing” cannot refer only to a case where the application for discharge is allowed and not when the same is rejected.”Case BackgroundThe Opposite Party No. 2 had set up an industry by availing loan from the Odisha State Financial Corporation ('OSFC'), Angul Branch. On 03.03.2001, the industry was illegally seized by the OSFC and auctioned in favour of the petitioner on 28.02.2002. She, therefore, challenged such action before the High Court, wherein a stay was granted against the transfer. On 22.10.2004, despite being aware of the order of stay, the petitioner wrongfully trespassed into the factory premises, dismantled the unit by forcibly breaking the front gate and doors and removed the iron truss, AC & GI Sheets of the main gate and also the installed machineries approximately amounting to Rs. 12 lakhs. The Opposite Party No. 2 filed FIR on 20.07.2005 against such action of the petitioner, for which a case under Sections 447/448/427/379/294/506 of the IPC was registered. After completion of investigation, a final report was submitted on 27.12.2006. After a delay of 6 years, the Opposite Party No. 2 filed a protest petition in Court of the SDJM, Angul. After conducting inquiry as provided under Section 202 of CrPC, the Court below took cognizance of the offences under Sections 447/448/427/380/506 of IPC. Upon appearance after receipt of summons, the petitioner filed an application for discharge on the ground that no prima facie case is made out, which was however rejected by JMFC by an order dated 07.06.2018.Being aggrieved, he approached the Court of Sessions Judge, Angul but the same was also dismissed on 27.02.2020. The petitioner thereafter approached the High Court which permitted him to raise all the pleas urged in the said petition before the trial Court at the appropriate stage.As allowed, the petitioner filed discharge petition again before the trial Court raising all the grounds taken by him before the High Court. But by order dated 19.05.2023, the JMFC (LR), Angul rejected the petition which led to filing of this criminal miscellaneous petition under Section 482, CrPC.Court's ObservationsUpon perusing the impugned order, the Court was of the view that the JMFC abruptly held that the evidence of the witnesses, FIR, charge-sheet and adjoining documents prima facie attract the alleged offences and that the allegations made by the prosecution are not groundless. On such ground, the discharge application was rejected. It noted that the petitioner had in fact raised certain specific grounds and tried to substantiate the same by assigning detailed reasons.“Not a whisper has been made as to why the grounds urged by the petitioner to discharge him from the case were considered unacceptable…Whether the same would ultimately be acceptable or not is a thing that can be decided only if the same is considered. But without even considering the grounds raised, it cannot be said that there are no grounds to discharge the petition,” the Court said.Justice Mishra then went on to interpret the provisions enumerated in Section 245 of the CrPC, which speak as to when an accused shall be discharged. It says, 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.He clarified that though the Court is not required to record reasons for framing charge but it is the settled position of law that rejection of a discharge petition and framing of charge are not the same thing. It is only after an application for discharge is dealt with that the question of framing of charge arises.Therefore, considering the language employed in Section 245, i.e. “for reasons to be recorded”, the Court made it clear that recording of reasons is mandatory not only when application for discharge is allowed but also when it is rejected. Justice Mishra referred to his own judgment in Shibaram Sahu v. State of Odisha (Vigilance Department) (2021) wherein it was held as follows –“It is reiterated that when an application for discharge is filed, the same has to be disposed of by a reasoned order, which is clear from the use of the expression “and record his reasons for so doing” in Section 239 which obviously cannot refer only to a case where the application for discharge is allowed but not when the same is rejected. Obviously the statutory intent cannot be understood in a manner that the Court is to record its reasons only when allowing the petition...

S.245 CrPC | Mandatory For Magistrate To Record Reasons While Allowing/Rejecting Discharge Petition Of Accused: Orissa High Court

Jyoti Prakash Dutta

Tags