- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO.2124 OF 2007 Claud Neon Sign Private Limited ... Applicant vs Arrow Coated Private Limited ... Respondent Mr.Manish D.Alwe a/w Ms.Bhavana Tandel for Applicant Ms.Priya Nadkarni for Respondent no.1 Mr.Y.S.Shinde APP for State CORAM: A.S.OKA, J DATED: 30th June, 2009 P.C. 1. Heard learned counsel appearing for the applicant and learned counsel for the 1st respondent-complainant. 2. The 1st respondent complainant filed a private complaint alleging commission of offence under section 420 IPC. The applicant has been arraigned as an accused in the said complaint. An application was made by the applicant before the learned Magistrate for discharge under sub section (2) of section 245 of the Code of Criminal Procedure,1973. The said application was opposed by the 1st respondent. By the impugned order dated 26th August, 2008 the learned Magistrate held that the application for discharge was filed at a premature stage. By the impugned order the learned Magistrate passed the - 2 - following order : The case have to be instituted by complainant in the form of private complainant. So it is the case instituted other than police report. So in such situation section 239 of Cr P.C will not apply. The procedure laid down vide section 244 and 245 of Cr.P C will be applied to the present case. For this purpose, complainant has to lead evidence vide section 244 of Cr.P.C. for framing charge against accused. If complainant fails to produce sufficient evidence to frame charge against accused, the accused will discharge vide sec.245 of Cr.P.C. According to me the application for discharge prior to framing charge is filed at premature stage. It will be considered after leading evidence for for framing of charge. The matter be kept for for evidence before charge. 3. The submission of the learned counsel appearing for the applicant is that the application for discharge ought to have been considered on merits under sub-section (2) of section 245 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). He, therefore, submitted that without deciding the prayer made in the application, the same could not have been disposed of. 4. Learned counsel appearing for the 1st respondent- complainant submitted that prayer under sub section (2) of section 245 of the Code for discharge can be considered only if the accused makes out a case that the allegations in the complaint are inherently improbable or false or constitute no offence. She submitted that in this case no such case has been made out by the applicant - 3 - and therefore, the learned Magistrate was justified in passing the impugned order. 5. I have considered the submissions. Sub-section (2) of section 245 of the Code is independent of sub-section (1) of the said section. If an application is made under sub-section (2) of section 245 before the learned Magistrate, he is bound to decide the said application in accordance with law. If he finds that no such case is made out for exercising power under sub-section (2) of section 245 of the said Code, he can throw out such an application and thereafter take recourse to sub section (1) of section 245. In the present case, the learned Magistrate has declined to consider the application made by the applicant on merits. After considering the application, the learned Magistrate may come to a conclusion that there is no case made out for discharge. However, in the present case the learned Magistrate has not applied his mind and has not decided the application on merits. 6. No purpose will be served by keeping this application pending in this Court as the same may delay the proceedings. Hence, application is disposed of by passing the following order : (1) The impugned order dated 26th August, 2008 is modified. The learned Magistrate will - 4 - proceed to decide the application under sub section (2) of section 245 of the said Code made by the applicant in accordance with law. The said application shall be decided as expeditiously as possible and in any event within a period of three months from today. (ii) All contentions of the parties on merits of the complaint are kept open. A.S.Oka, J - 5 - - 6 -