Allahabad High Court
Laxmi And Others vs State Of U.P. And Another on 23 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 14.11.2022 Judgment delivered on 23.11.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 24138 of 2021 Applicant :- Laxmi And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Purushottam Dixit Counsel for Opposite Party :- G.A.,Ankit Srivastava,Ratnakar Giri Goswami Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Purushottam Dixit, learned counsel for applicants, Sri Munne Lal, learned A.G.A. for the State and Sri Kumar Ankit Srivastava, learned counsel for opposite party No.2.
2. The applicants (accused) are aggrieved that their application filed under Section 245 Cr.P.C. to discharge them from offence under Sections 406/418 I.P.C. arising out of Criminal Case No. 3896 of 2016 (Sunil vs. Ram Autar and others) under Section 406/418 I.P.C., Police Station- Civil Lines, District Etawah, pending before Additional Chief Judicial Magistrate-II, Etawah was rejected without considering that the complainant had given his evidence under Section 244 Cr.P.C. and without considering his cross examination that no case was made out against the accused which, if unrebutted, would warrant their conviction.
3. Learned counsel for applicants has vehemently argued that in the cross examination of complainant during the evidence recorded under Section 244 Cr.P.C. has specifically mentioned that he had never handed over any jewellery to his wife. Therefore, the essential ingredient of Section 405 I.P.C. i.e. criminal breach of trust was absent as there was no entrustment or dominion of the property of the applicants.
4. Learned counsel has further submitted that ingredients of Section 418 I.P.C. i.e. cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect, were also not made out since there was no entrustment of property with the applicants, therefore, the applicants were not bound to protect interest of complainant and circumstance would not fall under wrongful loss i.e. a loss by unlawful means to which person losing was legally entitle.
5. Per contra, Sri Munne Lal, learned A.G.A. for the State and Sri Kumar Ankit Srivastava, learned counsel for opposite party No.2 have vehemently argued that the standard to discharge any accused under Section 245 (1) Cr.P.C. was upon the accused who has to make out that no case was made out against him, if the version remains unrebutted. However, the applicants have not been able to satisfy such test.
6. Before considering the rival submissions, few paragraphs of a judgment of Supreme Court in the case of Sunil Mehta and another v. State of Gujarat, (2013) 9 SCC 209 relevant for adjudication of the case are mentioned hereinafter :-
"16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 CrPC is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.
17. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned.
18.Secondly, because evidence under Chapter XIX(B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence under Section 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. Section 245 of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in Section 244, he considers that no case against the accused has been made out which may warrant his conviction. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross-examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to cross-examine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot be jeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box.
19.Thirdly, because the right of cross-examination granted to an accused under Sections 244 to 246 even before framing of the charges does not, in the least, cause any prejudice to the complainant or result in any failure of justice, while denial of such a right is likely and indeed bound to prejudice the accused in his defence. The fact that after the court has found a case justifying framing of charges against the accused, the accused has a right to cross-examine the prosecution witnesses under Section 246(4) does not necessarily mean that such a right cannot be conceded to the accused before the charges are framed or that Parliament intended to take away any such right at the pre-charge stage.
20. We are supported in the view taken by us by the decision of this Court in Ajoy Kumar Ghose [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] . That was a case where the trial court had framed charges against the accused without the prosecution having any evidence whatsoever in terms of Section 244 CrPC. This Court held that the procedure adopted by the trial court was not correct because the language of Section 246(1) CrPC itself sufficiently indicated that charges have to be framed against the accused on the basis of some evidence offered by the complainant at the stage of Section 244(1). This Court observed: (SCC p. 128, para 39) "39. ... The language of the section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) CrPC that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 CrPC by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge."
21. This Court further clarified that the expression "or at any previous stage of the case" appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused even before any evidence was led under Section 244. This Court approved the decision of the High Court of Bombay in Sambhaji Nagu Koli v. State of Maharashtra [1979 Cri LJ 390 (Bom)] , where the High Court has explained the purport of the expression "at any previous stage of the case". The said expression, declared this Court, only meant that the Magistrate could frame a charge against the accused even before all the evidence which the prosecution proposed to adduce under Section 244(1) was recorded and nothing more. This Court observed: (Ajoy Kumar Ghose case [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] , SCC p. 129, para 44) "44. In Section 246 CrPC also, the phraseology is ''if, when such evidence has been taken', meaning thereby, a clear reference is made to Section 244 CrPC. The Bombay High Court in Sambhaji case [1979 Cri LJ 390 (Bom)] came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the learned Single Judge in that matter relied on the ruling in Abdul Nabi v. Gulam Murthuza Khan [1968 Cri LJ 303 (AP)] ."
22. More importantly, this Court recognised the right of cross-examination as a salutary right to be exercised by the accused when witnesses are offered by the prosecution at the stage of Section 244(1) of the Code and observed: (Ajoy Kumar Ghose case [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] , SCC p. 131, para 51) "51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) CrPC. The accused can show, by way of the cross-examination, that there is no justifiable ground against him for facing the trial and for that purpose the prosecution would have to offer some evidence. While interpreting this section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored."
23. In Harinarayan G. Bajaj v. State of Maharashtra [(2010) 11 SCC 520 : (2011) 1 SCC (Cri) 207] this Court reiterated the legal position stated in Ajoy Kumar Ghose [Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 : (2010) 1 SCC (Cri) 1301] and held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the court that there was no need for a trial against him and that the denial of the right of cross-examination under Section 244 would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him. The following passages are in this regard apposite: (Harinarayan G. Bajaj case [(2010) 11 SCC 520 : (2011) 1 SCC (Cri) 207] , SCC p. 526, paras 18 & 20) "18. This Court has already held that right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being a ground for presuming that the accused had committed an offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him.
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20. Therefore, the situation is clear that under Section 244 CrPC the accused has a right to cross-examine the witnesses and in the matter of Section 319 CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be reheard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence.""
7. As held in Sunil Mehta (supra), Section 245 Cr.P.C. empowers the Magistrate to discharge the accused upon taking all the evidence referred to in Section 244, if he considers that no case against the accused has been made out, which, if unrebutted, would warrant his conviction i.e. the evidence is of such nature that would not be sufficient to his conviction if goes unrebutted.
8. Under above factual and legal background, I have carefully perused evidence of Sunil Kumar (husband of applicant No.1) recorded under Section 244 Cr.P.C. as well as his cross examination. In examination in chief, he remained consistent that applicant No.1 along with other accused left his house with jewellery of 35 tola gold and Rs. 10,000/-. He narrated same version in cross examination except "जो जेवरात मैं लक्ष्मी के द्वारा ले जाना बता रहा हूँ वो मैंने कभी लक्ष्मी को नहीं दिए थे।."
9. In the impugned order, contention of applicants to consider above referred contradiction was rejected that while considering application for discharge, entire evidence was not required to be taken note of and further that to discharge under Section 254(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.
10. I am not in agreement with the approach of learned trial Court, who ought to have considered the case of applicants under Section 245(1) Cr.P.C. that after considering the evidence including cross examination also, under Section 244 Cr.P.C. to come to a conclusion whether or not no case against the accused has been made out which, if unrebutted, would warrant his conviction to discharge him, but Court has not considered case of applicants in terms of requirement of Section 245(1) Cr.P.C., therefore, an error erupted in the impugned order.
11. Accordingly, present application stands allowed. Impugned order dated 11.10.2021 is hereby set aside and matter is remanded back to pass a fresh order under Section 245 Cr.P.C. on the basis of evidence on record taking note of Sunil Mehta (supra) within a period of four weeks from today.
Order Date :- November 23, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.]