Authority: High Court of Sikkim, Gangtok (Single Bench)

Order Date: 24 August 2026

Case Overview

  • Parties: Revisionist/complainant Ms. Hemlata Agarwal (R/o M.G. Marg, Gangtok) versus Travel Venture International Express P. Ltd. and its directors – Tarun Tirkha, Varun Tirkha, Veena Tirkha, Shikha Tirkha, and Shakti Sharad.
  • Proceedings: Criminal Revision Petition Crl.Rev.P.No.01 of 2018, CNR SKHC01-000055-2018, filed under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.).
  • Original Complaint: Private Complaint Case No.05/2014 filed under Section 200 Cr.P.C. alleging offences under IPC Sections 420, 468, 409, 471 read with Section 120B (criminal conspiracy).
  • Impugned Order: Dated 29 December 2017, the learned Judicial Magistrate, Chungthang, held that the stage of the case was for examination of the complainant and her witness under Section 244 Cr.P.C., recorded the complainant’s examination on 13 December 2017, noted the non‑appearance of witness Dilip Kumar Modi (exempted due to kidney transplant), and dismissed the complaint, discharging the accused under Section 245 Cr.P.C., deeming the charge groundless.
  • Legal Issues: Whether the magistrate could correctly invoke Section 245(2) Cr.P.C. to discharge the accused after evidence under Section 244 had already been taken.
  • Supreme Court Precedent: Ajoy Kumar Ghose vs. State of Jharkhand & Anr. (2009) 14 SCC 115, paragraphs 24‑25, distinguishing the application of Sections 245(1) and 245(2). Section 245(2) permits discharge only at a prior stage before any evidence is led; it cannot be used once evidence taking under Section 244 has commenced.

Court’s Reasoning

  • The magistrate had already recorded the complainant’s evidence and was in the process of taking further evidence (pending examination of witness Dilip Kumar Modi and applications for additional documents).
  • Accordingly, the case was at the stage of Section 244 Cr.P.C., not a pre‑evidence stage where Section 245(2) could be invoked.
  • The magistrate’s reliance on Section 245(2) was therefore erroneous; the correct procedure would be to allow the revisionist to complete evidence production under Section 244 before considering discharge under Section 245(1).

Final Outcome

  • The High Court set aside the impugned order dated 29 December 2017.
  • The matter is remanded to the learned Judicial Magistrate, Chungthang Sub‑Division, to permit the revisionist to lead and close her evidence and thereafter proceed to the next stage in accordance with law.

Topics: Criminal Procedure, Judicial Review