ORDER
L. Narasimha Reddy, J.
1. An altercation took place between the petitioner and his supporters on one hand, and respondents 1to 12 on the other, on 10-10-2001. That resulted in submission of complaints against each other.
2. Yerpedu PS registered Cr. No. 244/ 2001 on the complaint submitted by the petitioner and his supporters and Cr. No. 243/2001 on the complaint submitted by respondents 1 to 12. While offence under Section 307, IPC was incorporated in Cr. No. 243/2001, the same was omitted in Cr. No. 244/2001.
3. It was in this context that the petitioner submitted a complaint under Section 190(1) of Cr. P.C. before the Court of Additional Junior Civil Judge, Srikalahasti, alleging offence under Section 307, IPC. It was assigned provisional number CF. 2820/ 2002. Initially, it was taken up on bench on 8-10-2002. The complainant was absent and there was no representation. It was adjourned to 5-11-2002. On that day also, the complainant was not present. In that view of the matter, the trial Court discharged the accused under Section 245(2) of Cr. P.C. The same is challenged in this Revision.
4. The learned counsel for the petitioner submits that it was not open to the trial Court to exercise power under Sub-section (2) of Section 245 of Cr. P.C. since the case was not even taken on file, much less, any witnesses were examined therein.
5. With a view to ascertain the legal aspect of the matter, this Court requested Sri C. Praveen Kumar, learned counsel, to assist the Court. After examining the matter, the learned counsel submits that Section 245 occurs in Chapter XIX of Cr. P.C. which deals with the trial of warrant cases triable by a Magistrate and the question of a Magistrate discharging a person, who is accused of offence under Section 307, IPC exclusively triable by a Court of Sessions, does not arise. It is also his case that discharge of an accused charged with that offence should be only on the basis of consideration of the material before it and after examination of the complainant, if the complaint was made under Section 190. Whatever be the lapses on the part of the complainant, the Magistrate cannot discharge a person accused of the offence under Section 307.
6. The learned Public Prosecutor submits that the trial Court was left with no alternative, on account of the continued indifference on the part of the petitioner.
7. The short question involved in this revision is as to whether it was open for the Court of Magistrate to discharge a person accused of offence exclusively triable by the Court of Sessions, in exercise of its power under Sub-section (2) of Section 245, Cr. P.C. Whenever a Court of Magistrate receives a final report from the Police or a complaint from a complainant, wherein offences triable exclusively by the Court of Sessions are disclosed, he has to commit the same as provided for under Section 209 of Cr. P.C., after following the steps prescribed under Sections 207 and 208, Cr. P.C. In cases taken up on the basis of final report of the Police, the Court, of Magistrate is to be guided by the material before it. In cases of complaints received under Section 190, it has to record the statements of the complainant or such other persons as it deems fit. It is only then, it can decide as to whether the complaint, together with the sworn statements, discloses the commission of offence triable exclusively by the Court of Sessions.
Till such stage is reached, the question of the Court of Magistrate forming an opinion does not arise. Unless such opinion is formed, the Court cannot discharge the accused.
8. Discharging the accused, in contradistinction to dismissal of a complaint has serious and important repercussions. While discharge would virtually give a clean chit to the accused, dismissal of the complaint would enable the complainant to file a fresh complaint and pursue the matter in appropriate forum as provided for in law. With , the discharge of an accused, the remedies to the complainant are closed once for all, whereas in case of dismissal, he can re-agitate the matter, subject to the relevant provisions of law. When such are the drastic consequences, the trial Court ought not to have discharged the accused i.e., respondents 1 to 12 herein, at virtually an embryonic stage, on the sole ground of the absence of the complainant. It is true that the Court is not expected to wait indefinitely for the complainant to show the favour of his presence and it can certainly dismiss the complaint if the circumstances warrant. But it was not competent for the trial Court to discharge the accused.
The order under Revision is set aside and the matter is remitted to the trial Court for fresh consideration in accordance with law. The Crl. R.C is accordingly allowed.