Prosecution evidence must be recorded first in warrant cases before discharge can be considered under the Code.

In a warrant case instituted otherwise than on a police report, the Magistrate must first hear the prosecution and record the evidence produced under section 244 before considering discharge under section 245. The requirement to take oral and documentary evidence at that stage is mandatory, and discharge is not permissible before the prosecution evidence has been recorded, except where the charge is already shown to be groundless on material lawfully before the court. A discharge petition entertained prematurely, alongside refusal to issue process and record evidence, is procedurally improper.

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Issues: Whether, in a warrant case instituted otherwise than on a police report, the Magistrate can consider an accused's discharge petition under section 245 before recording the prosecution evidence required by section 244 and whether refusal to issue process and to record such evidence is contrary to law.

Analysis: Sections 244 and 245 of the Code require the Magistrate, in a case instituted otherwise than on a police report, to hear the prosecution and take all evidence produced in support of the prosecution before considering discharge. The requirement to record oral and documentary evidence under section 244 was treated as mandatory, not directory. Discharge under section 245 is contemplated only after such evidence has been taken, except where the charge is shown to be groundless on the material lawfully before the court. A discharge application entertained without first recording the prosecution evidence, while simultaneously declining to issue process on the prosecution's request, was held to be procedurally improper.

Conclusion: The impugned order was set aside and the Magistrate was directed to issue process to the witnesses, record the prosecution evidence, and proceed in accordance with law.

Final Conclusion: The prosecution was entitled to have the case proceed under the warrant-case procedure prescribed by the Code, and premature consideration of discharge without recording evidence was not permissible.

Ratio Decidendi: In a warrant case instituted otherwise than on a police report, the Magistrate must first record the prosecution evidence under section 244 before entertaining discharge under section 245, and the power of discharge cannot be exercised before that stage is reached.

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