IN THE HIGH COURT OP KARNATAKA CIRCUIT BENCH AT RHARWAD DATED THIS THE 3° DAY UP JUNE 2011 BEFORE THE HON’BLE MR.JUST1CE AS. PACHHAPURE CRIMINAL PETITION NO.10489/201 1 BETWEEN: Sri. Yamanappa 5/0. Yankappa Chinnadasar. Age: 41 years, 0cc: CooN. R / o. Can go r Village. Talnk: Muddchihal. Now a Aria Lodge, Raibag Taluk, Disi.: Belgaum. ... PETITIONER IBY Srnt.R.M.Geeha, ADV..) AND: Shri. Shafi S/o. Ibrahirn Mulla, Age: 58 years, R / o. Raibac. Talu k Dist: Belga urn. 2. Shri. Shabbir S/o. Ihrhirn Mulla. rnD \rars. o. Raibag. Taluk Dist: Belgaum. 3. Shri. Zaheer 8/0. Shabbir Mulla. Age: 28 ycars, RIo. Raibag, Taluk Dist: Belgaum. 4. Shri. Nissar S/o. Shafi Mulla, Age: 34 years, R/o. Raibag, Taluk Dist: Belgaum. 5. Shri. Bakru 5/ Shafi Mulla, Age: 32 years, R/o. Raibag, Taluk Dist: Bclgaum. 6. Shri. Zubecr 5/ Shabbir Mulla, Age: 30 years, R/o. Raibag, Taluk Dist: Belgaum. RESPONDENTS (By Smt.Vcena Hedge, ADV., for R1-R6) The Criminal Petition is filed under Section 482 of Cr.P.C. seeking to give an opportunity here the petitioner by recalling order dated 08.03.2011 passed by the Ill Additional District and Sessions Judge. Belgaum. in SpI. Case No.17/2011 produced at anncxure-A. This petition coming on for admission this day, the court made the following: 3 ORDER The facts reveal that the petitioner filed complaint in Raibag Police Station in P.S.C.R. No.38/2009 under Sections. 143, 147, 323, 504, 341 read with Section 149 of [PC and 3(1) (10) SC/ST (P.A.) Act, 1989. 2. After the investigation, B-Report came to be filed. Notice was issued to the complainant. He appeared before the trial court and filed his objection and evidence was recorded. The matter was posted for hearing before charge on 08.03.2011. On the said date, counsel and party were absent. Learned special Judge noting the absence of the complainant and the fact that the complainant was not represented. he discharged the accused under Scction 245(2) Cr.P.C. for thc aforesaid offence. 3. AggrIeved by the said order, present petition has been filed 4 4. I have heard the learned counsel for the petitioner and the respondent. 5. It is not in dispute that the case was rcgistered for the aforesaid offences and thereafter, when the matter was posted for hearing before charge on 08.03.2011, that the complainant was absent and there was no representation . The learned Magistrate discharged the accused under Section 245(2) of Cr.P.C. 6. As it could bc seen from the provisions of Section 245 Cr.P.C. it reads as under: 245.When accused shall be discharged (1) If, upon taking all 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 wL S 5 discharging the accused at any previous stage of the ease if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 7. As it could be seen from the provisions referred to supra, the learned Special Judge has to assign the reasons in writing, that any case against the accused has been made out, which if unrcbutted, would warrant his conviction and can pass an order of discharge. Evcn under the provisions of sub section (2) of 245 Cr.P.C. if he considers the charge to be groundless, he can pass an order under sub-section (2). The perusal of the order of the learned Magistrate does not reveal any reasons stated under sub Section (1) or under Section (2) of Section 245 Cr.P.C. In that view of the matter, the order impugned is erroneous and illegal and it is to be set aside. 8. In the result the petition is allowed. The order dated 08.03.2011 is set aside. 6 The matter is remitted back to the learned Special Judge to proceed on with the case, in accordance with law and in the light of the observation made above. Sd! JUDGE Rms/