(1) Sri k. V. Ramana rao, the learned counsel for the petitioner, contends that the order passed bv the lower court is not in accordance with the provisions of section 245, criminal procedure code.
(2) The circumstances under which the order was passed are as follows: the complainant was not present on 2nd february, 1978 to which date the case was posted for continuation of the examination of the complainant. Previously the complainant was examined in part in chief, but on 2nd february, 1978, the complainant could not attend the court and sent a petition for the reasons mentioned therein for adjournment. In the petition for adjournment it was stated that her grandmother died on 24th january, 1978 and the ceremonies would be performed on that day at another place i. E. , at repalle village and hence she and her relatives had to go to that place and she could not therefore attend the court. The lower court dismissed that petition. But it did not stop there, it passed an order as follows:
"complainant is absent. All the accused present. Petition to adjourn the case is dismissed. Prosecution is closed. As there is no evidence to proceed further, accused are discharged under section 245, criminal procedure code."
(3) I do not think that this order is in accordance with the provisions of section 245, criminal procedure code. The court with one hand dismissed the petition for adjournment and with another hand held that the complainant had no evidence and the prosecution was therefore closed, and as there is no evidence, the accused are discharged under section 245. Criminal procedure code. Section 245. Criminal procedure code, does not contemplate that the court can take the power to close the prosecution against the will of the complainant who was prepared to proceed with the prosecution by giving evidence and also examining the witnesses. Merely because the comnlainant was absent, it does not mean that the complainant has no evidence or the complainant is not prepared to examine his witnesses. It is only after the evidence let in bv the complainant and also the evidence adduced by his witnesses is found to he unsatisfactory or does not make out any prima facie case to proceed further the court has to discharge the accused. Section 245 criminal procedure code does not sav that even if the comnlainant could not examine himself or his witnesses for valid reasons, the court is empowered to close the prosecution and discharee the accused.
(4) This is not a case where the complainant does not want to continue her evidence or examine her witnessess. The complainant could not continue her evidence on 2nd february, 1978 for reasons which are valid, as could be seen from the petition presented on her behalf for adjournment. The learned magistrate ought to have granted adjournment, on such valid reasons. The notes paper reveals that the case underwent numerous adjournments because of the latches on the part of the accused, though two or three adjournments are due to the complainants' unreadiness. But that cannot be a ground to refuse adjournment sought for on 2nd february, 1978, as the reasons put forth for adjournment are justifiable. The method followed by the magistrate for discharging the accused under section 245, criminal procedure code, is not in accordance with the provisions of section 245. section 245 requires the magistrate to take all the evidence as referred to in section 244 and then the magistrate should consider the evidence and should record a finding that from the evidence brought on record no case against the accused has been made out and the finding so recorded should be supported by reasons. The magistrate is, of course, competent to discharge the accused under section 245 (2) even at an earlier stage if he records a finding that the facts do not constitute a criminal offence. Before the evidence was taken the magistrate did not find that the facts do not constitute a criminal offence. The learned magistrate, therefore, felt it necessary to take evidence. Having chosen to do so, he cannot discharge the accused without taking the evidence as referred to in section 244. It is true that where the complainant persistently keeps away and does not offer himself for examination, a discharge on the material before the court is justified.
(5) But the case on hand does not come under this category, as the complainant is ready at almost all the times and she gave evidence and she is prepared to examine all the witnesses whom she proposes to examine. Hence the learned magistrate is not justified in applying the provisions of section 245. i, therefore set aside the impugned order and direct the lower court to restore c. C. No. 207 of 1976 and give notice to the complainant as well as the accused and then proceed with the matter in accordance with law.
(6) In the result, the revision case is allowed. Revision allowed.