IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30612 of 2009 RAO KUNDAN KUMAR KARMVIR son of Late Dukharan Mandal, resident of Mogal Bazar, D. N. Road, P.S. Kotwali, District Munger, Presently resided at North Mandiri, P.S. Budha Colony, District- Patna. …. Petitioner. Versus 1. STATE OF BIHAR 2. Alakh Narain Gupta son of Late Mohan Lal Sah, resident of Mohalla Dujra, P.S. Budha Colony, District- Patna. .. Opposite parties. ----------- 3. 03.11.2010 Having heard learned counsel for the petitioner and learned counsel for the State as also taking into account that the impugned order dated 17.6.2009 is only to the extent that the court below after considering the evidence adduced under Section 244 of the Code of Criminal Procedure has gone to hold that there are sufficient materials of framing charge against the accused petitioner under Sections 406 and 420 I.P.C., the same cannot be held be contrary to law in the light of the provisions contained in Code of Criminal Procedure. At this stage, if the scheme of a complaint case arising out warrant trial in the Code of Criminal Procedure is taken into account, the trial Court has to first record evidence of prosecution and upon evaluation of such evidence the trial court has to consider as to whether any case against the accused has been made out, which if 2 unrebutted would warrant his conviction. If thereafter the Magistrate does not discharge the accused under Section 245(1) of the Code of Criminal Procedure, the natural consequence as provided in Section 246 Cr.P.C. for framing of charge and completing the trial of a complaint case has to be undergone and completed. In the present case, the petitioner had moved this Court at a stage after recording of evidence under section 244 Cr.P.C. by the Court below which on its evaluation in terms of Section 245 Cr.P.C. has found sufficient materials for framing of charge. Admittedly, the petitioner had filed no application for discharge after evidence was adduced in terms of Section 244 Cr.P.C. There is also nothing on record to show that when on 9.6.2008 an application was filed by the petitioner before the court below seeking his discharge, the evidence of prosecution was already completed in terms of Section 244 of the Code of Criminal Procedure. The petitioner in fact has also not filed application in question which was sought be pressed on 9.6.2008 seeking his discharge. Counsel for the petitioner has informed this Court that ever since 17.6.2009 the trial has proceeded 3 further and now the witnesses of prosecution after framing of charge are being cross-examined by the petitioner. In such a situation, this Court would not like to go into the issue of authenticity and evidentiary value of a copy of the agreement of sale which is the subject matter of the complaint case. Suffice to hold that if the petitioner had not availed the opportunity in terms of Section 245(1) at an appropriate stage, he could not have thwarted the entire prosecution at a belated stage when the trial has also progressed to a considerable extent. Thus in the changed scenario, there would be now nothing left for this Court to interfere with the continuing proceeding of criminal case against the petitioner. That being so, this application is wholly misconceived and is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)