1. By this revision under S. 397/401 of the Cri. P.C 1974, (for short the Code), the order dt./- 27-8-84 and the order dt./- 6-9-84, purporting to be orders of discharge passed under S. 245 of the Code, are sought to be quashed.

2. The case has got a chequered history. One Devi Shankar Sharma, the District Harijan and Social Welfare Officer, Meerut, filed a written report against Rajendra Kumar Tyagi, opposite party No. 1, dt./- 18/20-12-1976 for the offence under S. 409/420/468, I.P.C The police of Baghpat, Distt. Meerut, in Crime No. 248/76, investigated the matter and submitted a final report. But one Pratap Singh Shishodhia, the present applicant, filed a complaint before the Chief Judicial Magistrate, stating that the final report has incorrectly been submitted. On that complaint the Chief Judicial Magistrate rejected the final report by order dt./- 20-11-78 and passed an order for issuing process against opposite party No. 2, Rajendra Kumar Tyagi. Against the order dt./- 20-11-78 of issuing process, Rajendra Kumar Tyagi filed a revision before the Sessions Judge, Meerut, which was dismissed by the VII Addl. Sessions Judge, Meerut, by his judgment and order dt./- 6-2-79. It was further directed in that order that if the offence was going unpunished, then after taking the statement of witnesses, if there appears sufficient evidence, the process may be issued. On that the statement of Pratap Singh Shishodhia and his witnesses was recorded and on 12-9-79 the process was issued against opposite party No. 2 for the offence under S. 409/420/468, I.P.C Against the order dt./- 12-9-79 another revision was filed by Rajendra Kumar Tyagi (Revision No. 313 of 1979). This revision was also dismissed by the VI Additional District and Sessions Judge, Meerut, by the order dt./- 18-12-79 and the order dt./- 12-9-79 issuing process against Rajendra Kumar Tyagi was maintained. Thereafter the statement of witnesses, i.e P.W 1 Devi Shankar Sharma, P.W 2 Pratap Singh Shishodhia and P.W 3 Gopi Chand were recorded under S. 244 of the Code. It appears that without waiting for such evidence as could have been produced in support of the prosecution, Sri J.C Sharma, Munsif Magistrate 1, Baghpat, adopted a very unique procedure totally inconsistent with the provisions of Ss. 244 and 245 of the Code and in his detailed impugned order dated 27-8-84, expressed doubt in a number of paragraphs as to whether the offence under S. 409/420/468 was made out and whether the accused, opposite party No. 2, Rajendra Kumar Tyagi was entitled to be discharged under S. 245 of the Code. But in the last butone paragraph of his order dt./- 27-8-84 he recorded a finding that as the Enquiry Officer (in the departmental proceedings) was also appointed to enquire into the allegations of misappropriation of the public fund by opposite party No. 2, Rajendra Kumar Tyagi, it appears that he (opposite party No. 2) has misused the public fund and hence there was more possibility of some offence being made out against him. In the last paragraph of his order he stated that a list of 45 witnesses has been given by the complainant, and if he wants that this complaint may proceed in that event within ten days, he must furnish a list of the witnesses whom he wants to produce to prove the guilt against opposite party No. 2. As in, the impugned order dt./- 27-8-84 in so many, paragraphs the learned Munsif has expressed doubt as to whether the offence under S. 409/420/468, I.P.C was made out and whether the opposite party No. 2 was entitled to be discharged under S. 245 of the Code, hence an application dt./- 6-9-84 was made by the complainant that he wants to file a revision before the Sessions Judge against the order dt./- 27-8-84 and hence three months' time may be allowed. That application was, however, rejected and opposite party No. 2, Rajendra Kumar Tyagi was discharged in view of the provisions of S. 245(2) of the Code. It is against these two orders that the present revision has been filed.

3. Learned counsel for the applicant urged that the Magistrate has adopted a unique procedure unwarranted by the provisions of Ss. 244 and 245 of the Code (dealing with evidence for prosecution and the discharge of accused in warrant cases instituted otherwise than on police report). Under S. 244 of the Code when opposite party No. 2, Rajendra Kumar Tyagi appeared, the Magistrate ought to have proceeded to hear the prosecution and should have taken all such evidence as may have been produced in support of the prosecution. The Magistrate could have issued summons to any of the witnesses. Under S. 245(1) of the Code if, upon taking all the evidence referred to in S. 244, the Magistrate considers that no case against the accused was made out, he could discharge the accused. Whereas under S. 245(2) the Magistrate could discharge the accused at any previous stage only if he considers the charge to be groundless. In the instant case even though after the accused appeared, three witnesses, namely P.W 1 Devi Shankar Sharma, P.W 2 Pratap Singh Shishodhia and P.W 3 Gopi Chand were examined and thereafter in view of the provisions of S. 244, without permitting the complainant to examine his remaining witnesses, he proceeded to pass an order purporting to be an order of discharge under S. 245(2), even though in the last but one paragraph of his order dt. 27-8-84 he has expressed his opinion that there appears to be prima facie evidence for the offence against the accused. But while disposing of the application filed on behalf of the complainant praying for three months' time to file a revision against the order dt. 27-8-84, the accused was discharged and in that he recorded a finding that he has expressed his opinion on 27-8-84 that the evidence was not sufficient to prove the charge against the accused and consequently, he discharged the accused by his order dt. 6-9-84. In fact, by order dt. 27-8-84 no opinion was expressed about insufficient evidence to prove the guilt of the accused, rather in the last but one paragraph an observation to the contrary was made. It was accordingly urged that the order discharging the accused opposite party No. 2 may be set aside and the case may be remanded to the Magistrate for recording the remaining evidence (other than three PWs whose statements were recorded).

4. Learned counsel for the opposite party, on the other hand, urged that the procedure adopted was quite consistent with the provisions of Ss. 244 and 245 of the Code, and in the order dated 27-8-84 a doubt was expressed as to whether there was sufficient evidence to prove the guilt against the accused and that as instead of leading remaining evidence, the complainant made a prayer that he wants to file a revision against the order dt. 27-8-84, hence the accused has correctly been discharged by order dt. 6-9-84 and there was no error in the impugned orders.

5. The principle question for determination is as to whether the impugned orders were consistent with the procedure envisaged by Ss. 244 and 245 of the Code. In order to appreciate the controversy, and ex abundanti cautela, the statutory provisions of Ss. 244 and 245 of the Code are set out below:—

“244. Evidence for prosecution:—

(1) When, in any warrant case instituted otherwise than on police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

“245. When accused shall be discharged.—

(1) if, upon taking all the evidence referred to in S. 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 the previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”

6. No doubt Ss. 244 and 245 of the Code prescribe the procedure for trial of a warrant case instituted on a complaint. The warrant case contains so many serious offences affecting the society at large. In the present case itself the charge included criminal breach of trust, cheating the thereby dishonestly inducing the delivery of property and forgery for the purpose of cheating done by a responsible person in an educational institution including the misappropriation of scholarship fund payable to scheduled caste and other students. In case no order of discharge would have been passed, rather charges would have been framed, conviction would have been recorded after following the procedure.

7. The principle for interpretation of penal statutes is that it must be construed strictly in favour of the subject. (See Rib Tapes India Pvt. Ltd. v. Union of India, (1986) 4 SCC 185 : AIR 1986 SC 2014, Para 6, Union of India v. Shreeram Durga Pd. (P.) Ltd., (1969) 1 SCC 91 : AIR 1970 SC 1597, Tuck and Sons v. Priester, (1887) 19 QUB 629, Hildesheimer v. Faulkner, (1901) 2 Ch D 552). But in order to ascertain the nature of statute, the object and reasons may also be looked into. In order to ascertain whether the provisions of S. 244 were mandatory or directory, a look to the section would itself indicate that in sub-cl. (1) of S. 244, the words used are ‘the Magistrate shall proceed to hear all the prosecution and take all such evidence as may be produced. In sub-cl. (2) of S. 244, the words used are ‘the Magistrate may’. Actually the words may and shall are used together. It is clear that the word ‘shall’ prima facie indicates that the provision is imperative is character when a provision has been made imperative, it indicated the intendment of the legislature and the consequences flowing from non observation. The legislature has put no option on the part of the Magistrate nor it has been made dependent on his discretion to follow or not to follow the procedure. Rather to put it differently he was bound to follow the procedure prescribed under. S. 244(1). It means that the Magistrate was bound to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Taking all such evidence as may have been produced was imperative in character, but in the instant case after recording statement of three witnesses, the Magistrate hastened to pass a detailed order, purporting to be an order of discharge on 27-8-84 without waiting for the remaining prosecution evidence. He made a mention in the order dt. 6-9-84 (subsequent order of discharge) that in the order dt. 27-8-84 he expressed opinion that evidence recorded was not sufficient to sustain the charge.

8. In the order dt. 27-8-84, in the last but one paragraph the following observation was made in Hindi translated in English was as under:

“His (Rajendra Kumar Tyagi, opposite party No. 2, the accused) statement recorded before the Enquiry Officer (in departmental enquiry) indicates that he has misused public fund, and some charge is invariably made out against him.”

9. But in the subsequent order dated 6-9-84 he made observation in Hindi (now translated in English), that he has observed in earlier order dt. 27-8-84 that evidence on record was insufficient to prove guilt against the accused. This is obviously a contradictory observation.

10. It may further be added that after making conflicting observations in a number of paragraphs about the sufficiency of evidence to support the charge, the Magistrate appeared to be satisfied that prima facie there was sufficient evidence, including the result of departmental enquiry and accused's own statement therein to the effect that the accused has imsappropriated the public fund and some offence against him appears to be invariably made out. To quote exact words: [Matter in Hindi hence omitted— Ed.]

11. In a number of paragraphs the definition of offence under Ss. 409, 420 and 468 were discussed. In fact, a number of documentary evidence including how the misappropriation of the public fund (Scholarship of students and other amount of the institution) was made by the accused filed by the complainant are on record. The sub-caste of a number of students was incorrectly shown, so many students other than Scheduled Castes were shown as Scheduled Caste Students. The Scholarships in the name of Scheduled Caste Students and compensatory amounts were received, when in fact, a number of students were not scheduled caste. Similarly misappropriation of public fund of other nature was prima facie made out. A list of those students and their caste has been given by the complainant (vide paper No. 75/1). Sri Devi Shankar Sharma, P.W 1 has conducted the departmental enquiry about the misappropriation of public fund by the accused, Rajendra Kumar Tyagi. In that Rajendra Kumar Tyagi admitted that he has committed the mistake. A copy of that report has also been file. Similarly, without permitting the complainant to lead the remaining evidence, there was no unusual necessity on the part of Magistrate to pass the impugned order as to whether the evidence already led (P.Ws 1 to 3) justified an order of discharge.

12. I am of the view that the learned Magistrate did not act according to the procedure provided under Ss. 244 to 245 of the Code. In case the Magistrate wanted to pass an order, he could have passed such order only before he started taking evidence on behalf of the prosecution as is clear from S. 245(2) of the Code. But for that it must have been proved that the charge against the accused was groundless. It has to be noticed that the word groundless has been deliberately used by the legislature. The word ‘ground’ connotes ‘basis’ or ‘foundation’ and the word ‘groundless’ means ‘without any basis or reason or foundation’. According to Henry Campbell Black's Law Dictionary (Fifth Edition), the word ‘ground’ means a basis of foundation for admissibility of evidence. The word ‘ground of action’ mean the foundation or fundamental-state of facts on which an action rests. The word ‘groundless’ would obviously mean without any foundation or fundamental state of facts on which action against accused can be said to rest. In other words without any evidence at all.

13. Sub-sec. (2) of S. 245 is more restricted in scope than S. 245(1). Section 245(1) provides that an order of discharge can be passed after taking all the evidence as referred to in S. 244 and after holding that no case against the accused has been made out, which would warrant his conviction. Whereas S. 245(2) provides that in order to pass an order of discharge before taking evidence, the learned Magistrate must be satisfied that the charge was groundless, i.e without any basis or foundation. The ambit of an order of discharge or considerations to be made by the Court in such matters has been pointed out by their Lordships of the Supreme Court in Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar, (1979) 4 SCC 274 : AIR 1980 SC 52, as quoted in R.S Nayak v. A.R Antulay, (1986) 2 SCC 716 : AIR 1986 SC 2045 at p. 2072, para 44 as follows:

“At this stage, as pointed out by this Court in State Of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : AIR 1977 SC 2018, the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage even a very strong suspicion founded upon materials before the Magistrate, which leads him to form presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge;

The language of sub-sec. (1) of S. 245 also places the matter beyond dispute by using the same test as suggested by Untwalia, J. in the case of Ramesh Singh (supra).”

14. In the present case the statement of three prosecution witnesses were already recorded. The Magistrate must have permitted the prosecution to examine the remaining witnesses and lead other evidence. However, instead of affording that opportunity, he proceeded to pass an order of discharge which was not warranted in view of S. 245(2) or S. 245(1). Under the circumstances, unless the prosecution indicated its inability to examine any other witness, there was no propriety or justification on the part of the Magistrate concerned to pass an order of discharge. The learned Magistrate without considering the mandatory provisions of Ss. 244 and 245 of the Code, adopted a unique procedure. Even though some doubts were expressed about the sufficiency of evidence to prove the charge against the accused in the order dt. 27-8-84, but in the last but one paragraph a finding was recorded by the learned Magistrate that there appears to be sufficient evidence to make out a case against the accused. Somewhat contradictory finding was recorded by the learned Magistrate in the second order dated 6-9-84 holding that in the earler order he has already expressed his opinion that evidence was not sufficient to prove the guilt of the accused. There can be no justification on the part of the Magistrate that he intended to pass an order of discharge under S. 245(2), when in fact, he has started taking evidence of the prosecution witnesses. Once he started taking statement of prosecution witnesses then he must cimplete that chain by examining all the witnesses and recording the entire evidence on behalf of the prosecution.

15. In R.S Nayak v. A.R Antulay, ((1986) 2 SCC 716 : AIR 1986 SC 2045) (supra), the scope of Ss. 244 and 245 has been considered as follows:

“The use of the words ‘If upon taking of the evidence refered to in S. 244’ in sub-sec. (1) of S. 245 is suggestive of the statutory intention that until ‘all such evidence as may be produced in support of the prosecution’ is taken, the stage for judicial consideration as to whether charge is to be framed is not reached.”

16. The matter can be viewed from another angle. The result of discussion in the order dt. 27-8-84 was in the last but one paragraph as indicated above to the effect that there appears to be evidence to prove the guilt against the accused, even though in the earlier paragraphs of that order he has discussed the scope of the offence under Ss. 409/420/468, I.P.C for which there was no propriety or justification unless the entire evidence has been led. Further in the departmental enquiry the accused has admitted that he has committed the mistake, meaning thereby that he accepted his guilt. I have perused a number of documentary evidence on record which I need not discuss in detail, indicating misappropriation of the fund and a prima facie case for an offence under Ss. 409, 420 and 468, I.P.C being made out. The impugned orders accordingly cannot be sustained.

17. In view of the discussions made hereinbefore, the present revision succeeds and is allowed. The order dt. 27-8-84 and 6-9-84 are set aside and the case is remanded back to the Magistrate with a direction to record the statement of other prosecution witnesses as well and to take other evidence. Only thereafter the Magistrate (other than Sri J.C Sharma) must proceed to pass an order under S. 245(1) after applying the principles or tests applicable in cases of discharge and the observations made above. The learned Sessions Judge, Meerut, is directed to entrust this case to be disposed of by some other Munsif Magistrate other than Sri J.C Sharma.

18. Revision allowed.