Distinction Between Section 245(1) and 245(2) of CrPC

The scope and ambit of sub-clause (1) and (2) of Section 245 CrPC is distinct and different, which can be summed up as follows:

  • The Magistrate exercises power under Section 245 (1) on the accuse being produced before him under Section 244;
  • The evidence is led in the presence of the accused who has a right to cross examine the witnesses led at the stage of Section 244;
  • There being no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245 (1) CrPC.
  • Section 245(2) CrPC is a stage before the evidence of the prosecution under Section 244(1) is completed or any stage prior to that; such stages would be under Section 200 CrPC to Section 204 CrPC, because the next stage is only the appearance of the accused before the Magistrate in a warrant case under Section 244 CrPC;
  • The Magistrate can take decision under Section 245(2) CrPC before the accused is brought before the Court or before the evidence is led under Section 244 CrPC. There is no question of consideration of evidence at the stage as there is none. Mahesh Kumar State of U.P., 2016 (96) ACC 636.
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