1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.11172 OF 2024 BETWEEN: 1 . SRI ASHOK KHENY AGED ABOUT 75 YEARS, S/O MAHARUDRAPPA KHENY, RESIDING AT NO.2-45, RAJOL KHENY, BIDAR TALUK, BIDAR DISTRICT. 2 . SRI SANJAY G. KHENY AGED ABOUT 55 YEARS, S/O SRI MAHARUDRAPPA KHENY, RESIDING AT NO.2-45, RAJOL KHENY, BIDAR TALUK, BIDAR DISTRICT. ... PETITIONERS (BY SRI C.V.NAGESH, SR.COUNSEL FOR SRI S.B.MATHAPATI, ADVOCATE) AND: ABRAHAM T.J., AGED ABOUT 64 YEARS, 2 S/O T.A.JOSEPH, NO.2326, “ASHIRWAD”, 2ND “A” CROSS, 16TH “B” MAIN ROAD, HAL II STAGE, INDIRANAGAR, BENGALURU – 560 008. ... RESPONDENT (BY SRI ABRAHAM T.J., PARTY-IN-PERSON) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN C.C.NO.30749/2021 PRESENTLY PENDING ON THE FILE OF THE XLII ADDL.CJM, BENGALURU AND FURTHER BE PLEASED TO REVERSE AND SET ASIDE THE ORDER DATED 08.10.2024 PASSED IN THE CASE DIRECTING FRAMING OF CHARGES AGAINST THE PETITIONERS FOR THE OFFENCES THAT ARE MADE PENAL UNDER SEC.177, 182, 198, 199, 200, 417, 468, 471 OF IPC AND FURTHER BE PLEASED TO DISCHARGE THE PETITIONERS IN THE CASE. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 3 CAV ORDER The petitioners are before this Court calling in question proceedings in C.C.No.30749 of 2021 pending before XLII Additional Chief Judicial Magistrate, Bengaluru with particular reference to the order dated 08-10-2024 directing framing of charges against the petitioners for offences punishable under Sections 120B, 167, 177, 182, 192, 193, 196, 197, 198, 199, 200, 217, 218, 409, 415, 420, 464, 468, 471 of the IPC r/w Section 31(a) and (b) of the Representation of People Act, 1950 r/w Rules 13(1) and 26 of Registration of Electors Rules, 1960. 2. Heard Sri C.V.Nagesh, learned senior counsel appearing for the petitioners and Sri T.J. Abraham, respondent in person. 3. Facts, in brief, germane are as follows:- The 1st petitioner seeks to contest an election from Bidar South Constituency and files application in Form No.6 for inclusion CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA 4 of his name in the Voters’ list/electoral roll in Bidar South Constituency. A private complaint comes to be registered two years after the elections, invoking Section 200 of the Cr.P.C., before the concerned Court against the petitioners alleging various offences in P.C.R.No.112 of 2016. The concerned Court, in terms of its order dated 22-12-2017 registers a criminal case against the petitioners for several offences. The petitioners challenged the said order of the concerned Court before this Court in Criminal Petition No.200086 of 2018. A coordinate Bench of this Court, in terms of its order dated 02-04-2018, dismissed the criminal petition. The petitioners then challenge the said order of dismissal passed by this Court in S.L.P.No.4437 of 2018. The Apex Court, in terms of its order dated 18-05-2018, disposes the S.L.P. directing the trial Court to look in the matter without being influenced by the order of the coordinate Bench of this Court dated 02-04-2018. 4. The matter is then transferred to the Special Court on its constitution on 08-02-2018. Between the years 2020 and 2021, the evidence of the complainant comes to be recorded before the charge - which was hearing before charge. The petitioners then file 5 an application seeking their discharge from the array of accused. The said application comes to be rejected on 16-04-2022 holding that there is no ground to discharge the petitioners and directed framing of charge against the petitioners. This comes to be challenged before the coordinate bench of this Court in Criminal Petition No. 5014 of 2022. The said petition comes to be disposed on 12-09-2022 remitting the matter back to the concerned Court. The concerned Court, again hears the matter and rejects the plea of the petitioners, holding that there are no grounds made out by the accused to pass an order under Section 245 of the Cr.P.C. The petitioners are again back to the doors of this Court in the subject petition. 5. The learned senior counsel Sri C.V.Nagesh representing the petitioners takes this Court through Sections 244 and 245 of the Cr.P.C., elaborates their significance and on the said elaboration contends that the order impugned is completely contrary to Sections 244 and 245 of the Cr.P.C., and, therefore, would contend that the concerned Court has to pass fresh orders in tune with the provision of law under Sections 244 and 245 of the Cr.P.C. 6 6. Per contra, the respondent in person would refute the submissions of the learned senior Counsel contending that all these submissions were made in the earlier petitions and those have been rejected. He would submit that repeated submissions are made and repeated petitions are filed only to get away with the passing of final order. The order of the concerned Court does not warrant any interference in the case at hand, is his submission. He would further seek a direction for expeditious conclusion of trial, as the issue is of the year 2016. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 8. The afore-narrated facts are not in dispute. Cognizance was taken and criminal case was registered against the petitioners in terms of an order of the concerned Court dated 22-12-2017. The order reads as follows: “ORDER Register the Criminal case against the accused No.1 and 2 in Register No. III for the offences punishable under Section 7 120B, 167, 177, 182, 192, 193, 196, 197, 198, 199, 200, 217, 218, 409, 415, 420, 464, 468, 471 Indian Penal Code r/w Section 31(a) and (b) of the Representation of People Act, 1950 r/w Rules 13(1) and 26 of Registration of Electors Rules, 1960. Issue process to accused No.1 and 2, if PF and copies furnished.” This comes to be challenged before this Court in Crl.P.No.200086 of 2018. The challenge is negatived by order dated 02-04-2018 by rendering following reasons: “…. …. …. 10. However, same is opposed by the respondent on the ground that when the signature of the petitioner along with his admitted signatures were sent to FSL Bengaluru, under the pressure and influence of petitioners herein from various Quarter, the FSL did not take up to the same for investigation and sent it back with lame excuse. Thereafter, the admitted and disputed signatures were sent to FSL Chennai, where again same was not taken up for investigation in view of pressure being exerted on the said laboratory. It is only thereafter the said material was sent to private lab, however, the report of the said lab was not accepted, as it was based on the Photostat copy of admitted signature of petitioner. It is stated that the said objection was accepted by the Court. 11. However, in this background, what is required to be done is to ensure Quietus to this is provided instead of keeping this pending for eternity on technicalities. In the meanwhile, it is also brought to the notice of this Court that the complaint which is now pending in C.C.No.3539/2017 on the file of the I Additional Judicial Magistrate First Class-II, Bidar, is said to be sent Bengaluru to a newly constituted Court which has jurisdiction to take over all pending matters against the politicians and elected representatives. 8 12. In that view of the matter, this Court felt question of interfering with the order of the learned Magistrate does not arise at this stage. For the reason that what is to be done here is to ascertain whether the signature on Form No.6 is the signature of petitioner will have to be ascertained by the designated Court by securing the original signatures of the petitioner either from legislative Assembly or any other department where the petitioner has legitimate business to get the same compared with the signature on Form No.6 filed by the 1st petitioner. 13. At this juncture, there is one more twist to this litigation, the respondent bring to the notice of this Court that the concerned Electoral Officer is said to have stated that Form No.6 itself is missing. According to respondent the concerned Officer was drawn to the services of petitioner No.1 when he was functioning as MLA to work as his assistant and that person has a role in deliberately getting the original document misplaced. This Court would observe that the same is required to be looked into by the designated Court while seeking production of original of Form No.6 from the concerned officer. If the Court below think it is necessary to hold an enquiry regarding alleged missing of original Form No.6 the same shall be conducted. Thereafter, to take necessary steps to get the verification of signature through scientific investigation from FSL Hyderabad. 14. The designated Court should go into the complaint to verify if the concerned officer who was in charge of the said document really worked as assistant of the petitioner while he was MLA if that is established, there could not be more serious offence than that. However, if it is found that the said information is incorrect as stated by the learned counsel Sri Summan the petitioners are at liberty to proceed against respondent for levelling such false charges against petitioners with liberty being provided to them to initiate such proceedings against the complainant to protect the interest of the petitioners also. 15. With aforesaid observations, this Court would dismiss this petition and refer the matter back to the 9 Special Court, which is at Bengaluru to deal with the same keeping in mind the aforesaid observations. It is also made clear that the Special Court should ensure that the verification of admitted signatures of the petitioner should be secured in the aforesaid manner to be compared with the signature on Form No.6. After securing the same by taking appropriate steps in that behalf and complete the formalities within six months from the date of receipt of a copy of this order.” (Emphasis supplied) While dismissing the petition, certain directions were issued. This is challenged by the petitioners before the Apex Court in S.L.P.(Crl.) 4437 of 2018. The Apex Court disposes the petition by the following order: “Heard learned counsel for the petitioner. Since the matter is still pending before the trial Court, we direct that all contentions of the petitioner may be raised at the stage of charge in accordance with law and looked into without being influenced by the impugned judgment. Having regard to the nature of the case, we direct that the petitioner be given exemption from personal appearance and be allowed to appear through counsel subject to appropriate conditions to be laid down by the trial Court on application of the petitioner. The special leave petition is disposed of in above terms. Pending applications, if any, shall also stand disposed of.” (Emphasis supplied) 10 The trial Court was directed to consider all contentions in accordance with law without being influenced by the order passed by the coordinate bench supra. The concerned Court passes an order again against the petitioners. 9. The petitioners, after the matter being transferred to the Special Court on its constitution, for considering the cases of elected representatives, file an application seeking their discharge from the criminal case. This comes to be rejected on 16-04-2022, which is challenged before this Court in Criminal Petition No.5014 of 2022. A coordinate Bench of this Court in terms of its order dated 12-09-2022 remits the matter back to the hands of the concerned Court, on a particular finding. The order reads as follows: “…. …. …. 2. Without adverting to the facts of the case, the legal contentions raised by Sri. C.V. Nagesh, learned Senior counsel appearing for the petitioners is that the present case is a case on the basis of a complaint wherein after notice under Section 204 of Cr.P.C. and evidence is led in, it is only at the stage of Section 245 of Cr.P.C. the accused can seek for discharge. It is pointed out that the admitted procedure is that the evidence for the prosecution could be led in terms of Chapter-XIX after notice to the accused and subsequent to which stage of 11 recording of evidence under Section 244, accused can seek for discharge in terms of Section 245 of Cr.P.C. It is further submitted that the test that is required to be answered is in terms of Section 245(1) "if unrebutted, would warrant his conviction". It is further submitted that in terms of Section 246, when the accused is not discharged and the Magistrate deems it fit to proceed, it is required that the Magistrate must be of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter. Accordingly, it is submitted that the observations made at Paragraph 10 of the impugned order are contrary to the test under Section 245 and on the basis of such terms as reflected in paragraph 10 of the impugned order, the trial Judge has grossly erred in dismissing the application for discharge. 3. On the other hand, respondent - Sri. Abraham T.J., appearing as party-in-person submits that reference to Section 227 of Cr.P.C. regarding discharge of accused would not make much difference and even otherwise there is no failure of justice and accordingly the order, which otherwise on substantive merits is correct, ought not to be set aside on the technical defects as pointed out. 4. Heard both sides. 5. It must be noted that admittedly it is the case on the basis of a complaint. It is the settled position that in case of a complaint case, under Chapter XIX-B, only after evidence for prosecution has been led in terms of Section 244, question of accused seeking for discharge would arise while disposing of an application seeking discharge in terms of Section 245 of Cr.P.C. A plain statutory test as referred to under Section 245(1) would be that the evidence referred to in Section 244 which if unrebutted would warrant his conviction, then the Magistrate shall discharge him. 6. Paragraph 10 of the impugned order which reflects the manner in which the matter has been dealt with by the trial Court, is extracted as hereunder: 12 "I have gone through all the judgments in detail. In all the decision, the Hon'ble Apex Court has dealt with the scope and limitations of the Courts when dealing with section 227 of Cr.P.C., which says about discharge of the accused. The Hon'ble Apex Court has held that when exercising the power under section 227 of Cr.P.C., marshalling and appreciation of evidence is not in the domain of the Court. It is also observed that charge can be framed also on the basis of strong suspicion. Here, in the case on hand also, the evidence on record both oral and documentary placed by the complainant demonstrates that the case for trial is made out. The only question, at this stage, before this Court is whether there are sufficient grounds to frame charge and proceed in the case as per law. Hon'ble Apex Court in the decisions referred above has said that the Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial and while considering the question of framing charges, he has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Therefore, in the case on hand, there are sufficient grounds to frame charges against the accused persons for the offences alleged against them." 7. The trial Court has referred to test of Section 227 of Cr.P.C. insofar as observations of the Apex Court in the context of Section 227 applications have been discussed and upon such premise, the trial Court proceeds. Section 227 provides position in case of offence triable by Sessions Court. Chapter XVIII provides that there could be an order of discharge where under Section 227 "the Judge considers that there is no sufficient ground for proceeding against the accused" upon consideration of the case and documents submitted therein. Clearly, the application under Section 227 filed and the test and material available are different as regards application filed seeking discharge in a case of complaint case under Section 245. In the case of an application for discharge under Section 245, the Court has the benefit of evidence recorded under Section 244 and the test under Section 245 requires to be answered. The test is substantively different from the test as laid down in Section 227. This would become apparent on the mere perusal of Section 227 which reads as follows: 13 "227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." 8. The trial Court in paragraph 10 has proceeded on the premise of the test and standard under Section 227 which qualitatively different as regards to the test to be answered under Section 245. It would not be appropriate to enter into the merits of the case as the matter is being remanded for fresh consideration. It would also be necessary to observe that after dismissal of an application under Section 245, the Court while proceeding to frame charge must also apply its mind to the stage of Section 246 and an order in that regard be passed. 9. Accordingly, the impugned order dated 16.04.2022 passed by the XLII Additional Chief Metropolitan Magistrate, Bangalore, is set aside. All contentions raised are kept open. The petition is disposed off. The matter is remanded for fresh consideration in light of the observations made above.” (Emphasis supplied) The coordinate Bench while observing that the concerned Court has proceeded, on the premise, of the test and standard under Section 227 which is qualitatively different, as to the test to be answered under Section 245 of the CR.P.C. Therefore, without going into the 14 merit, the matter was remitted. On remittance springs the impugned order. 10. The issue now is, whether the order bears consideration as is necessary under Section 245 of the Cr.P.C. Section 245 of the Cr.P.C., reads as follows:- “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.” Section 245 of the Cr.P.C., deals with a circumstance when the accused could be discharged. Interpretation of Section 245 of the Cr.P.C. need not detain this Court for long or delve deep into the matter. The Apex Court in the case of AJOY KUMAR GHOSE V. STATE OF JHARKHAND1 has held as follows: “21. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the 1 (2009) 14 SCC 115 15 prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) CrPC on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) CrPC, whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) CrPC. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. 22. [Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./124/2009 dated 22-8- 2009.] . In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the framing of the charge. Of course, under Section 245(2) CrPC, a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless. 23. Essentially, the applicable sections are Sections 244 and 245 CrPC since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) CrPC or to summon its witnesses under Section 244(2) CrPC. This did not happen and instead, the accused proceeded to file an application under Section 245(2) CrPC on the ground that the charge was groundless. 24. Now, there is a clear difference in Sections 245(1) and 245(2) of CrPC. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If 16 there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) CrPC. 25. The situation under Section 245(2) CrPC is, however, different. There, under sub-section (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under Section 244 CrPC. The words appearing in Section 245(2) CrPC “at any previous stage of the case”, clearly bring out this position. 26. It will be better to see what is that “previous stage”. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) CrPC is completed or any stage prior to that. Such stages would be under Section 200 CrPC to Section 204 CrPC. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 CrPC. Under Section 201 CrPC, if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper court or direct the complainant to a proper court. ….. ….. ..... 30. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that 17 stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) CrPC, where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) CrPC, and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. 31. The situation under Section 245(2) CrPC, however, is different, as has already been pointed out earlier. The Magistrate thereunder has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 CrPC and till the completion of the evidence of prosecution under Section 244 CrPC. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 CrPC, and makes an application for discharge. ….. ….. ..... 34. When the accused appeared in pursuance to the summons sent to him under Section 244 CrPC, the defence came out with an application. There can be no difficulty that the discharge application was perfectly in order at that stage. Therefore, what was available before the Magistrate besides this discharge application was, a bare complaint. There was absolutely nothing beyond the complaint available, for the Magistrate to consider the framing of charge. The Magistrate could, undoubtedly, have proceeded under Section 245(2) CrPC, on the basis of the discharge application and discharged him. However, he would have been required to give reasons for discharging at that stage, when no evidence or no material, whatsoever, was available with him, excepting a bare complaint. ….. ….. ..... 18 37. We are convinced that under Section 245(2) CrPC the Magistrate can discharge the accused at any previous stage i.e. even before any evidence is recorded under Section 244(1) CrPC. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty. 38. However, the real difficulty arises in the trial court's proceeding to frame the charge under Section 246 CrPC. It is obvious that at that stage of framing a charge in this case, no material, whatsoever, was available with the trial court, excepting the complaint, which was also not supported by any statement on oath by the complainant or any of his witnesses, which ordinarily are recorded at the stage of Section 200 CrPC. In this case, since the complaint was by the court, no such statement came to be recorded, of the complainant or any of his witnesses present. Here also, the trial court has committed no mistake. Again, the trial court has also not made any mistake in issuing the process, if the trial court felt that there was a ground for proceeding. The real question, which comes, however, is as to how after rejecting the application made by the accused under Section 245(2) CrPC, the trial court straightaway proceeded to frame the charge. 39. The charge is framed under Section 246(1) CrPC which runs as under: “246. Procedure where accused is not discharged.—(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.” The language of the section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) CrPC that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 CrPC by the prosecution, the 19 Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge. 40. Now here, there is, however, one grey area. Section 246(1) CrPC is very peculiarly worded. The said grey area is on account of the phrase “or at any previous stage of the case”. The question is as to whether, even before any evidence is led under Section 244 CrPC, can the Magistrate straightaway proceed to frame a charge. The debate on this question is not new, though there is no authoritative pronouncement of this Court on that issue. There are cases, where the High Courts have specifically taken a view that the phrase does not empower the Magistrate to frame any charge in the absence of any evidence, whatsoever. It must be, at this stage, borne in mind that the word used in Section 246 CrPC is “evidence”, so also, in Section 244 CrPC the word used is “evidence”. Therefore, ordinarily, the scheme of Section 246 CrPC is that it is only on the basis of any evidence that the Magistrate has to decide as to whether there is a ground to presume that the accused has committed an offence triable under this Chapter. 41. Before we approach this question, we must note that while Section 245(2) CrPC speaks about the discharge of the accused on the ground that the charge is groundless, Section 246(1) operates in an entirely different sphere. An order under Section 245(2) CrPC results in discharge of the accused, whereas an order under Section 246 CrPC creates a situation for the accused to face a full-fledged trial. Therefore, the two sections would have to be interpreted in slightly different manner, keeping in mind the different spheres in which they operate. The words “or at any previous stage of the case” appearing in Section 246 CrPC would include Section 245 also, where the accused has not been discharged under Section 245 CrPC while the similar term in Section 246(2) can include the stage even before any evidence is recorded. It cannot, therefore, be held that the words “at any previous stage of the case” as appearing in Section 245 CrPC would have to be given the same meaning when those words appear in Section 246 CrPC. 20 42. The Bombay High Court, in a decision in Sambhaji Nagu Koli v. State of Maharashtra [1979 Cri LJ 390 (Bom)] , has considered the matter. While interpreting the words “at any previous stage” under Section 246(1) CrPC, the learned Single Judge in that case came to the conclusion that the phraseology only suggested that the Magistrate can frame charge even before “all” the evidence is completed under Section 244 CrPC. Section 244 CrPC specifically mandates that as soon as the accused appears or is brought before the court, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. 43. Further, Section 245 CrPC also mandates that: “245. When accused shall be discharged.—(1) If, upon taking all the evidence referred to in Section 244 CrPC, 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.” 44. In Section 246 CrPC also, the phraseology is “if, when such evidence has been taken”, meaning thereby, a clear reference is made to Section 244 CrPC. The Bombay High Court in Sambhaji case [1979 Cri LJ 390 (Bom)] came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the learned Single Judge in that matter relied on the ruling in Abdul Nabi v. Gulam Murthuza Khan [1968 Cri LJ 303 (AP)] . 45. A similar view seems to have been taken in T.K. Appu Nair v. Earnest [AIR 1967 Mad 262] and Malepati Srihari Rao, In re [AIR 1964 AP 226] . 46. A similar view has been expressed in P. Ugender Rao v. J. Sampoorna [1990 Cri LJ 762 (AP)] , where it has been expressed that previous stage is a stage after recording some evidence. It is neither a stage before recording any evidence 21 at all nor a stage after recording the entire evidence, but is in between. The interpretation, thus, placed on the words “at any previous stage of the case” occurring in Section 246(1) CrPC also appears to be more in consonance with the order of the sections numbered in the Code and also with the heading given to Section 246 CrPC viz. “Procedure where accused is not discharged”. The very heading of the section even indicates that it would come into play only after the matter is examined in the light of Section 245 CrPC and the accused is not discharged thereunder. Therefore, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under Section 245 CrPC and it is only when he finds it otherwise, he could have resort to Section 246 CrPC. (P. Ugender Rao case [1990 Cri LJ 762 (AP)] , Cri LJ, p. 764, para 4.) ….. ….. ..... 51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) CrPC. The accused can show by way of the cross-examination that there is no justifiable ground against him for facing the trial and for that purpose the prosecution would have to offer some evidence. While interpreting this section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored.” (Emphasis supplied) Further, the Apex Court in the case of HARINARAYAN G. BAJAJ V. STATE OF MAHARASHTRA2, has held as follows: “18. This Court has already held that right to cross- examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show 2(2010) 11 SCC 520 22 to the court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being a ground for presuming that the accused had committed an offence triable under the chapter. If it is held that there is no right of cross- examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him. 19. In Ajoy Kumar Ghose v. State of Jharkhand [(2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] , one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in para 51: (SCC p. 131) “51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) CrPC.” 20. Therefore, the situation is clear that under Section 244 CrPC the accused has a right to cross- examine the witnesses and in the matter of Section 319 CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be reheard and then there would be such a right. Merely presenting such witnesses for cross- examination would be of no consequence. This Court has already held so in Shashikant Singh v. Tarkeshwar Singh [(2002) 5 SCC 738 : 2002 SCC (Cri) 1203] . (Emphasis supplied) 23 Subsequently, in the case of SUNIL MEHTA V. STATE OF GUJARAT3, the Apex Court holds as follows: “16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 CrPC is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof. 17. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned. 18.Secondly, because evidence under Chapter XIX(B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence under Section 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. Section 245 of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in Section 244, he considers that 3 (2013) 9 SCC 209 24 no case against the accused has been made out which may warrant his conviction. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross-examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to cross- examine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot be jeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box. 19.Thirdly, because the right of cross-examination granted to an accused under Sections 244 to 246 even before framing of the charges does not, in the least, cause any prejudice to the complainant or result in any failure of justice, while denial of such a right is likely and indeed bound to prejudice the accused in his defence. The fact that after the court has found a case justifying framing of charges against the accused, the accused has a right to cross-examine the prosecution witnesses under Section 246(4) does not necessarily mean that such a right cannot be conceded to the accused before the charges are framed or that Parliament intended to take away any such right at the pre-charge stage. 20. We are supported in the view taken by us by the decision of this Court in Ajoy Kumar Ghose [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] . That was a case where the trial court had framed charges against the accused without the prosecution having any evidence whatsoever in terms of Section 244 CrPC. This Court held that the procedure adopted by the trial court was not correct because the language of Section 246(1) CrPC itself sufficiently indicated that charges have to be 25 framed against the accused on the basis of some evidence offered by the complainant at the stage of Section 244(1). This Court observed: (SCC p. 128, para 39) “39. … The language of the section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) CrPC that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 CrPC by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.” 21. This Court further clarified that the expression “or at any previous stage of the case” appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused even before any evidence was led under Section 244. This Court approved the decision of the High Court of Bombay in Sambhaji Nagu Koli v. State of Maharashtra [1979 Cri LJ 390 (Bom)] , where the High Court has explained the purport of the expression “at any previous stage of the case”. The said expression, declared this Court, only meant that the Magistrate could frame a charge against the accused even before all the evidence which the prosecution proposed to adduce under Section 244(1) was recorded and nothing more. This Court observed: (Ajoy Kumar Ghose case [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] , SCC p. 129, para 44) “44. In Section 246 CrPC also, the phraseology is ‘if, when such evidence has been taken’, meaning thereby, a clear reference is made to Section 244 CrPC. The Bombay High Court in Sambhaji case [1979 Cri LJ 390 (Bom)] came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the learned 26 Single Judge in that matter relied on the ruling in Abdul Nabi v. Gulam Murthuza Khan [1968 Cri LJ 303 (AP)] .” 22. More importantly, this Court recognised the right of cross-examination as a salutary right to be exercised by the accused when witnesses are offered by the prosecution at the stage of Section 244(1) of the Code and observed: (Ajoy Kumar Ghose case [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] , SCC p. 131, para 51) “51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) CrPC. The accused can show, by way of the cross-examination, that there is no justifiable ground against him for facing the trial and for that purpose the prosecution would have to offer some evidence. While interpreting this section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored.” 23. In Harinarayan G. Bajaj v. State of Maharashtra [(2010) 11 SCC 520 : (2011) 1 SCC (Cri) 207] this Court reiterated the legal position stated in Ajoy Kumar Ghose [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] and held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the court that there was no need for a trial against him and that the denial of the right of cross-examination under Section 244 would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him. The following passages are in this regard apposite: (Harinarayan G. Bajaj case [(2010) 11 SCC 520 : (2011) 1 SCC (Cri) 207] , SCC p. 526, paras 18 & 20) “18. This Court has already held that right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination 27 that the accused can show to the court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being a ground for presuming that the accused had committed an offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him. *** 20. Therefore, the situation is clear that under Section 244 CrPC the accused has a right to cross-examine the witnesses and in the matter of Section 319 CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be reheard and then there would be such a right. Merely presenting such witnesses for cross- examination would be of no consequence.” (Emphasis supplied) On the bedrock of the principles laid down by the Apex Court in the afore-quoted judgments, the order impugned is required to be noticed. It reads as follows: “…. …. …. 15. Further, it is pertinent to note that, while taking cognizance of the alleged offences this court had not taken cognizance of said offence / offences against the Secretary, Gramapanchayath, Ranjol Kheny Village, who was arrayed as accused No.3 in the complaint on some technical grounds. But, that itself would not entitle the accused No.1 for discharge from the said offence/offences. When his residence is in dispute, the burden lies on the accused No.1 to produce cogent evidences to show that he is the permanent resident of Bidar or the state of Karnataka. Therefore, this contention of the defence counsel at this stage cannot be accepted. 16. Further, it is the specific contention of the defence counsel that, when the accused No.1 himself not complaining about his signature on Ex.P6, the complainant herein cannot 28 dispute the same and cannot make complaint about the same. He has no locus-standi to question said signature of accused No.1, when the accused No.1 himself is not questioning it. This line of argument of Lrd.Sr. Counsel cannot be accepted because, under criminal justice administration, with regard to a criminal act or an offence anybody can set the criminal law into motion. That being the case, there is no bar for the complainant to complaint about the forgery of alleged signature. There is no hard & fast rule that only the purporter of such signature has to complain, but the persons aggrieved by such action can also set the criminal law into motion. Similarly, in the present case on hand, admittedly the complainant herein was also a rival candidate for the said Assembly Election-2013 of Bidar South Constituency, in which the accused No.1 had also contested. That being the case, if at all, any such false document or forged document was produced before the Electoral Registration officer or any officer in connection with such election, definitely the complainant would be an aggrieved person. As such, there appears no infirmity for the complainant herein to complain against the alleged act of accused No.1 & 2. Hence, this contention of Lrd.Sr.counsel holds no water. 17. Further, as rightly argued by the Lrd.Sr.counsel, for submission of said Form No.6, the personal presence of accused No.1 was not mandatory. No doubt, such a form of a person could be submitted by any of his agents or workers. But, such form should be prepare and signed by accused No.1 himself, but not anybody else. As such, in the present case also there was no bar for accused No.2 to submit said Form No.6 of accused No.1 to the Electoral Registration officer. But, said form No.6 should have been duly signed by accused No.1 himself. But, it is the allegation of the complainant that, the same was signed by accused No.2 as if it was signed by accused No.1 who was not at all in India at that particular point of time. Therefore, the issue as to the forgery of signature of accused No.1 by accused No.2 is for trial in this case, but not the issue as to filing or submitting said Form No.6 of accused No.1 to the Electoral Registration officer by accused No.2. Further, Lrd.Sr.counsel for the accused has argued that as per the deposition of PW1 in his cross examination at page No.8, his bad intention is elicited. More so, in his cross examination at page No.11 the PW1 himself stated that, for submitting such Form No.6 the presence of the applicant is not necessary. He also admitted that at the 29 time of submitting Form No.6 at Ex.P6 he was not present in the office of said Electoral Registration officer. But, this line of argument of Lrd.Sr.counsel cannot be considered at this stage. Because, as per the scheme of Criminal Procedure Code as enumerated from Sec.244 to 246 of Cr.P.C, the accused shall choose to cross examine any of the witness examined by the prosecution U/sec.244 of Cr.P.C., only after the stage of Sec.245(1) of Cr.P.C., if he is not discharged. Once the court decides that the accused is not entitled to be discharged U/sec. 245(1) of Cr.P.C., it shall frame charges against the accused and if the accused does not plead guilty, the court shall require the accused to state as to whether he wishes to cross examine any of the witnesses for the prosecution whose evidence has been taken U/sec.244 of Cr.P.C.,. This procedure is clearly enumerated U/sec.246(4) of Cr.P.C.,. For reference and clarity the said Sec.246 of Cr.P.C., is extracted herein below; 246. Procedure where accused is not discharged: (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. 30 (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross examination and re-examination (if any), they shall also be discharged. 18. What is provided U/sec.245(1) of Cr.P.C., is that the evidence led by the prosecution U/sec.244 of Cr.P.C., should make out a case against the accused, which if unrebutted should warrant conviction of the accused. That means the evidence taken U/sec.244 of Cr.P.C., should be of such nature and quality that if it remains unrebutted by the accused either in the course of cross examination of prosecution witnesses or his own defence evidences, such evidences would make out such a strong case against the accused so as to base his conviction, but not mean that it should be examined as to whether it was rebutted or not before the stage of Sec.245(1) of Cr.P.C. 19. The Lrd.Sr.counsel also argued that, the expert opinion report produced by the complainant at Ex.P22 is not acceptable. It is specifically argued that, said report is obtained privately by the complainant from a private laboratory i.e., the Truth Labs, Bengaluru. Such a private report is held to be a paid report and as such that would be a frail, unreliable, unsafe, untrustworthy & imprudent form of evidence. In support of his arguments, he has relied on the decision of Hon’ble Apex court, in the case of Mariam Fasihuddin & Another V/s. State by Audugodi Police Station & Another stated supra. 20. In the light of the said contention of Lrd.Sr.counsel on going through the decision of Hon’ble Apex court in the said case, it appears that Hon’ble Apex court has observed at para 42 that ‘a paid report obtained from a private laboratory seems to be a frail, unreliable, unsafe, untrustworthy & imprudent form of evidence, unless supported by some other corroborative proof’. Thus, it is very clear that, the Hon’ble Apex court has not held that such a report obtained from a private laboratory is completely unbelievable and untrustworthy. But, such a report would be unbelievable, unsafe, untrustworthy & imprudent form of evidence only if the same is not supported by some other 31 corroborative proofs. Therefore, the report submitted by the complainant which was obtained from Truth Labs, Bengaluru which is a private laboratory cannot be brushed away completely. If the complainant could produce & adduce any evidences corroborative to the said report and the opinion therein on the said Ex.P6, the same could be accepted, though not as a substantive evidence, as a corroborative piece of evidence. Therefore, this contention of the defence counsel cannot be accepted at this stage. 21. Further, it is contended by the Lrd.Sr.counsel that the complainant though produced the expert opinion report as per Ex.P22, he has not chosen to examine the scientific expert / the hand-writing expert who did the scientific examination of said Ex.P6 & given the opinion. As such, the said report and its opinion is not proved in accordance with law. No doubt, as rightly argued by the Lrd.Sr.counsel, any such expert opinion or report has to be testified through the scientific expert who did such examination and submitted his opinion or report to consider it as a piece of evidence. But, at this stage, the non- examination of expert of said laboratory by the complainant, cannot be taken against the case of the complainant. Because, he has produced his evidence U/sec.244 of Cr.P.C., which has to be put to test of cross-examination by the accused and only if such evidence including the said report Ex.P22 is disputed by the accused, the need arises for the complainant to examine the scientific expert of said report and prove it. Thus, whether said report is disputed and on which grounds the same is disputed would be known only upon the cross examination by the accused. 22. As already discussed herein above, after the evidence of prosecution U/sec.244 of Cr.P.C., the stage is for charge or discharge of accused U/sec.245(1) of Cr.P.C.,. It is thereafter the accused gets the choice of cross-examination of complainant/prosecution & it’s witnesses. However, may be due to inadvertence, in this case my predecessor in office had allowed the accused to cross-examine PW1 prematurely before the stage of Sec.245(1) of Cr.P.C.,. As such, that portion of premature cross-examination of PW1 by the accused cannot be considered at this stage of Sec.245(1) of Cr.P.C.,. Because, if such cross examination of PW1 is also 32 considered at this stage, it would amount to the final appreciation of evidence for arriving at a final conclusion and that would lead to the judgment of conviction or acquittal. That apart, it is pertinent to note that, as per Sec.246(6) of Cr.P.C., after the cross examination of prosecution witnesses whose evidence was recorded U/sec.244 of Cr.P.C., the prosecution/complainant would get another opportunity to lead further evidence if any. This is also fortified by the Hon’ble Apex court in the same decision in the case of Ajoy Kumar Ghose stated supra, the relevant para at head note C of said decision is extracted herein below; C. Criminal Procedure Code, 1973 - Sec.238, 239, 244 & 245 – Trial of a warrant case – Difference between case instituted on basis of police report and case instituted otherwise than on police report – Held, in first category, prosecution gets opportunity to lead evidence only after charge is framed whereas in second category complainant gets two opportunities to lead evidence, first before charge is framed and second after charge is framed. 23. 23. Therefore, though the complainant in this case did not chose to examine the scientific expert relating to said Ex.P22 in his evidence U/sec. 244 of Cr.P.C., he has not lost the opportunity. Rather, he has an opportunity U/sec. 246(6) of Cr.P.C., after the cross-examination by the accused to lead further evidence from his side, wherein he can examine any such witness if need arises after the cross-examination by the accused. Therefore, this contention of the Lrd.Sr.counsel at this stage may not come to the rescue of the accused for seeking his discharge. 24. Apart from the above Ld. Sr.Counsel has also argued that for comparison and examination of any handwriting or signature, there should be 3 documents such as the document containing the disputed signature or handwriting, the document containing standard or admitted signature or handwriting & the document containing specimen signatures or hand-writings. But, the complainant has not supplied said 3 documents to the expert of said Truth labs for the comparison and examination of 33 alleged signature of accused No.1 in the said Form No.6. As such, the report is un-scientific. 25. No doubt on perusal of records it appears true that the complainant for getting said Expert opinion on Ex.P6, had not supplied the original of said Form No.6 & also not supplied specimen signatures of accused No.1. But he has supplied xerox copy of said Ex.P6 to said Truth labs along with the documents containing standard/admitted signatures of accused No.1. On the basis of the same the Expert of said lab has given his opinion at Ex.P22. Whether said opinion could be accepted or not could be considered only upon his examination. Because, it is he whom is an expert who has to say on what basis he has given such opinion on the basis of said xerox copy of Ex.P6. More over, any such expert opinion or scientific report may not be a sole & substantive evidence to decide the issue in this case. It may be one of the corroborative piece of evidence to other substantive & circumstantial evidences. At this juncture it is pertinent to note that though the complainant made serious efforts to get the original of said Ex.P6 from the concerned Tahsildar even at the hands of this court, said document was not secured. Further this court has also passed an order for criminal action against the erring officer-The Tahsildar in that regard. If such practices of authorities/public servants washing of their hands by saying that such documents are not available, what would be the fate of the state & the victim citizens of this country. Similarly, if on such sole ground of non-availability of original documents, cases are to be closed, where would be the end for such accused committing offences & escaping under the aid & support of such public servants. Be that as it may, in this case even in the absence of said original document Ex.P6, there are several circumstantial evidences to prove the guilt of the accused if unrebutted. Therefore this contention of the LdSr.Counsel cannot be accepted at this stage to discharge the accused. 26. In view all the above discussed facts and the evidences led by the complainant U/sec. 244 of Cr.P.C., it appears that prima-facie the evidences both oral and documentary led by the complainant U/sec. 244 of Cr.P.C., would make out a case against the accused as alleged in his complaint and the nature & quality of said evidences appear to be such that if they remain 34 unrebutted, would warrant conviction of the accused. As such, there are no grounds for discharge of the accused U/sec. 245(1) of Cr.P.C.,. However, as already discussed herein above, this court has refused to take cognizance against the accused No.3 to 5 for the offences alleged against them on the grounds stated therein. As such, some of the offences alleged in the complaint that would attract as against these accused No.3 to 5 i.e., the offence punishable U/sec. 167, 192, 193, 196, 197, 217, 218, 409 of IPC and sec.31(a) & (b) of the Representation of peoples Act, 1950 which was repealed/amended by the Act of 1951 and also the Rule 13(1) & Rule 26 of the Registration of Electors Rules, 1960, which is not at all a penal provision cannot be charged as against accused No.1 & 2. …” (Emphasis added) The concerned Court, on perusal of records, expert opinion, specimen signature and all other contemporaneous documents comes to conclude that the case is not the one for discharge under Section 245 of the Cr.P.C. It is a case to be tried by framing a charge under Section 246 of the Cr.P.C. The petitioners, as observed hereinabove, filed the application seeking discharge not under Section 227 but under Section 245. The concerned Court now passes the order rejecting the application for discharge filed under Section 245. 35 11. The submission of the learned senior counsel is that the entire evidence is not looked into by the concerned Court. Section 245 of the Cr.P.C. is quoted hereinabove. It clearly mandates that, if upon taking all the evidence referred to under Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused made out, if unrebutted would warrant his conviction, the accused may be discharged. Sub-section (2) indicates that nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, for reasons to be recorded by such Magistrate where he considers the charge to be groundless. 12. The aforesaid is the purport of Section 245. The coordinate bench, while disposing the earlier petition quoted supra, has clearly directed the concerned Court, that the concerned Court should refer to the evidence, which if unrebutted, warrants conviction. The coordinate bench further directed that the test and standard under Section 227 of the Cr.P.C., which permits discharge prior to framing of the charges, is qualitatively different from the purport of Section 245. The coordinate bench did not enter into the 36 merit of the matter, directed the concerned Court look into the purpose of Section 245, apply its mind to the stage of Section 246, and pass an order. The order passed by the concerned Court is also quoted supra. What the Court has done is, in purport of Section 227 of the Cr.P.C. and not Section 245, it does not consider the entire evidence and does not opine as to whether the petitioners should be discharged or otherwise. Therefore, the submission of the learned senior counsel would merit acceptance and the concerned Court is to redo the exercise of considering Sections 244 and 245 of the Cr.P.C. 13. For the aforesaid reasons, the following: ORDER (i) Criminal Petition is allowed. (ii) Impugned order dated 08-10-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in C.C.No.30749 of 2021 is set aside. 37 (iii) The matter is remitted back to the concerned Court to consider the application filed under Section 245 of the Cr.P.C. afresh, in the light of the orders passed by the coordinate bench supra. SD/- (M.NAGAPRASANNA) JUDGE Bkp CT:MJ