Gujarat High Court
Sub District Appropriate Authority Pc ... vs Dinesh Kanjibhai Patel on 1 May, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.RA/796/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 796 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed toYes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of theNo
judgment ?
4 Whether this case involves a substantial question of lawNo
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SUB DISTRICT APPROPRIATE AUTHORITY PC AND PNDT AND
Versus
DINESH KANJIBHAI PATEL & 1
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Appearance:
MS RV ACHARYA(1124) for the PETITIONER(s) No. 1
MR P P MAJMUDAR(5284) for the RESPONDENT(s) No. 1
MR KL PANDYA ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 01/05/2018
ORAL JUDGMENT
1. Rule. Respondents waive service.
2. Considering the short issue involved in the matter, by consent of the parties, the petition is decided forthwith.
Page 1 of 9R/CR.RA/796/2017 JUDGMENT
3. The short but interesting issue raised in this revision application is regarding interpretation of sub section 4 of Section 246 of the Code of Criminal Procedure ( for short 'Cr.P.C') in the following contextual facts.
4. The respondent no.1 has been booked under the provisions of Sections 4(3), 5, 6, 22, 23(3) of the PreConception and PreNatal Diagnostic Techniques (PCPNDT) Act, 1994 ( for short 'PC & PNDT Act') and Rules 9(1), 9(4), 10(1)(A), 17(2) of the PreNatal Diagnostic Techniques ( Regulation and Prevention of Misuse) Rules, 1996 ( for short 'the PNDT Rules'). He has been convicted by the procedure under Part B Chapter XIX of Cr.P.C.
5. The case was instituted against the said respondent as a warrant triable case otherwise than on police report. The process was issued to the respondent no.1 under section 204(1) (b), whereupon he appeared and the procedure under section 238 of Cr.P.C came to be followed and he was supplied with the complaint, free of cost under section 207 of Cr.P.C.
6. Under section 244 of the Cr.P.C, following witnesses came to be examined by the prosecution and were crossexamined by respondent no.1:
Sr. No. Exh. Prosecution Name of the Prosecution Witness Witness 1 Exh. 35 Complainant Dr. Ashokkumar Ratanlal Dabhi 2 Exh. 76 Prosecution witness Vinaben Kamleshbhai Vahoniya 3 Exh. 78 Prosecution witness Sundarsinh Raisinh Labana 4 Exh. 80 Prosecution witness Bhavinbhai Bhagubhai Parmar 5 Exh. 83 Panch witness Prafulaben Ramubhai Sharma 6 Exh. 84 Panch witness Shardaben Ramabhai Damor 7 Exh. 88 Prosecution witness Kalsingbhai Ramsingbhai Damor Page 2 of 9 R/CR.RA/796/2017 JUDGMENT
7. Following documentary evidences were also adduced:
Sr. No Exh. Details of Documentary Evidences
1 Exh. 1 Complaint
2 Exh. 36 Undertaking
3 Exh. 37 Panchnama of the currency notes
4 Exh. 38 Previous Panchnama
5 Exh. 39 to 58 Forms
6 Exh. 59 Slip regarding Sonography machine
7 Exh. 60 Sonography Register
8 Exh. 61 Statement of Decoy Patient after the
procedure
9 Exh. 62 Panchnama after the procedure
10 Exh. 89 and Ehx. 90 Prescription Letters of Janni Hospital
11 Exh. 94 Birth Certificate of daughter Misti of Decoy
Patient
12 Exh. 95 Certified copy of Special Civil application
No. 8142 of 2015 petition
13 Exh. 129 Gujarat Government Notification
8. It appears that after the evidence under Section 244, charge came to be framed under section 246 at Exh. 97 and statement of the accused who rebutted the charge and sought trial, came to be recorded at Exh. 98. Thereafter the prosecution tendered pursis Exh. 99 adopting the evidence already led under section 244(1). The closing pursis was tendered, which was objected by the first respondent.
9. It has been recorded by the learned trial Judge that the accused did not apply for the crossexamination of witness examined pre charge i.e. under section 244(1) of Cr.P.C. The trial Court therefore, inferred the implied consent of the accused that he did not desire to cross examine those witnesses. The court thereafter proceeded to record the statement of the accused under section 313 of Cr.P.C. Written Page 3 of 9 R/CR.RA/796/2017 JUDGMENT arguments under section 314 of Cr.P.C at Exh. 102 and 103 were also recorded, on consideration of which, the conviction as above referred was recorded and it was noticed by the trial court that except denials, the respondent failed to explain the circumstances appearing against him. His detailed explanation was also found to be in the nature of denials.
10. The first respondent successfully assailed the order of conviction in appeal, with the court of 3rd Additional Sessions Judge, Dahod being Criminal Appeal No. 27 of 2016, primarily for want of compliance of section 246(4) of Cr.P.C. Aggrieved complainant is thus before this court.
11. The submission is that when evidence under section 244(1) was recorded, the first respondent availed the opportunity contemplated under section 246(4) of the Code as well and therefore, section 246(4) was complied with. It is also contended that after evidence was closed by the prosecution, the first respondent, except recording his objection to the adoption of the evidence; did not apply for an opportunity under section 246(4) of Cr.P.C. In the submission of learned counsel for the petitioner, the opportunity must be sought by the accused and it is not the obligation on the Magistrate to offer one. The learned counsel for the petitioner as also the learned APP would contend that no opportunity was sought by the accused and that he even participated in the procedure under sections 313 and 314 of Cr.P.C without any demur or objection. Thus the order in appeal is sought to be assailed by the petitioner is supported by the learned APP.
12. On the other hand, the learned counsel for the first respondent would contend that the first respondent was entitled to opportunity twice Page 4 of 9 R/CR.RA/796/2017 JUDGMENT i.e. one at the stage of section 244(1) and the other at the stage of 246(4). He would contend that complainant is given two opportunities at the said two stages and so was the accused entitled to. The learned counsel would contend that section 244(1) and 246(4) are different in that scope in asmuch as the former initiates the inquiry with an object of ascertaining whether there is a material for sustaining the complaint after framing of the charge and the later introduces the wider scope of trial.
13. Learned counsel while relying upon section 246(4) would contend that it was obligatory for the Magistrate to ascertain with the accused, after he seeks trial, his desire to crossexamine any witnesses examined earlier and if so, accused is obligated to name such witnesses for recall. It was submitted that it was only in response to the said question that the accused would decide whether or not to cross examine the witnesses already examined. In his submission, in absence of such procedure trial was vitiated. To point out the scope of chapter XIX Part B, the learned counsel placed reliance upon Ajoy Kumar Ghose vs. State of Jharkhand 2009 (0) GLHELSC 43118 and Sunil Mehta vs. State of Gujarat & Anr. [ 2013 (1) G.L.H. 565].
14. Having considered the rival contentions, it would be appropriate at this stage to refer to chapter XIX Part B of Cr.P.C. This part relates to the cases instituted otherwise than on police report and contemplates the procedure for warrant cases. Subsection (1) of Section 244 of Cr.P.C contemplates hearing of the prosecution and recording of such evidences as may be produced in support of the prosecution, when the accused appears or is brought before the Court. The summons to the witnesses desired to be examined by the prosecution is also Page 5 of 9 R/CR.RA/796/2017 JUDGMENT contemplated in subsection (2). In Sunil Mehta (supra), the expression "evidence" used in section 244 was interpreted as the evidence within the meaning of section 3 of the Evidence Act comprehending the examination, crossexamination and reexamination of the witnesses.
15. It is pertinent to note that before the case reaches to section 246, the proceedings would be at a precharge stage. The scope would be limited to examining the evidence recorded in section 244 to find out whether such unrebutted evidence does not make out a case warranting the conviction of the accused. At that stage there would be no appreciation of evidence. Further taking into consideration the unrebutted evidence at its face value, without appreciating it, the accused may be discharged if no case is made out against him and he would not be discharged if there is a convincing evidence persuading the magistrate to frame the charge against the accused. Thus when the magistrate rejects the case under section 245, he in fact opines that there is a ground for presuming the commission of the offence triable under Chapter XIX, by the accused. When the case crosses beyond section 245, a crucial event occurs where the magistrate makes up his mind to frame the charge against the accused under section 246. The accused in section 246 is now required not only to defend himself against unrebutted evidence but the clutches of law against him gets tightened with framing of the charge and asking him to face trial. He would therefore be rebutting the evidence of the witnesses for the prosecution, already taken. It is in this context that the accused would be entitled to a wider opportunity under section 246 of Cr.P.C.
16. The accused gets an option under section 246 either to plead Page 6 of 9 R/CR.RA/796/2017 JUDGMENT guilty or opt for the defence or seek trial. The magistrate has also an option either to convict the accused on the plea of his guilt or to proceed to hear the case irrespective of accused pleading guilty.
17. Moot question however is the purport and meaning of section 246(4). On one hand it is contended that the magistrate is under no obligation to call upon the accused to state his wish to crossexamine the prosecution witnesses whose evidence has been taken. It is argued that it is for the accused to seek an opportunity under subsection (4) of Section 246, without it being offered to him by the magistrate. On the other hand, the expressions appearing in subsection (4) to an effect that " he shall be required to state ......", "whether he wishes to cross examine any......." and the expression "if he says he does so wish, ......." appearing in subsection (5) of section 246 are sought to be relied upon to point out the obligation cast upon the magistrate to ascertain the wish of the accused, above stated.
18. Sub section (4) of Section 246 contemplates a trial in the event the case proceeds beyond the stages contemplated in subsections (1), (2) and (3) of section 246; however with a circumscribed scope which offers to the accused to seek recall of the witnesses already examined by the prosecution, as may be desired by him for the purpose of their crossexamination. Subsection (4) of Section 246 is a crucial stage and not a mere empty formality. A dialogue takes place between court and the accused under the said provision. During such dialogue wish of the accused either to plead guilty or go for defence would be ascertained by the magistrate. If the accused is sought to be tried, the dialogue continues and overlaps into subsection (4) of section 246 where the magistrate is required to ascertain the desire of the accused to cross Page 7 of 9 R/CR.RA/796/2017 JUDGMENT examine the witnesses already examined by the prosecution. When the accused desires to crossexamine such witnesses, he is required to be called upon by the magistrate to select the witnesses already examined for recall for the purpose of their crossexamination and reexamination. The obligation of the magistrate to ascertain the wish of the accused is discernible from the expression " he shall be required to state....", "whether he wishes to crossexamine any ....." used in subsection (4) of Section 246. The affirmation by the accused as discernible from the expression "if he says he does so wish....", more particularly the word "says" implies a reply to a question put to accused and therefore it is difficult to accept the submission that the accused is not required to be questioned under subsection (4) of section 246 but it is he who must express his desire on his own.
19. Nowhere in the above exercise contemplated in section 246, the prosecution figures, and therefore, it was misconceived for the prosecution to step in at that stage for adopting the evidence or come up with a closing pursis. Infact, the provision does not offer any occasion to the prosecution to adopt the evidence at that stage inasmuch the provision merely proceeds further from the stage of section 244; with the intervention of sections 245 and 246(1). In other words, the occasion for adoption of the evidence taken under section 244 of the Code would not arise at all since such evidence already forms the record of the case and has to be considered subject to sections 246 and 247. It was therefore, misconceived for the prosecution to adopt the evidence and close it at the stage contemplated under section 246 of Cr.P.C.
20. In view of the above elaborate discussion, it is difficult to accede Page 8 of 9 R/CR.RA/796/2017 JUDGMENT to the submission made by the learned APP that the accused having participated in the procedure under sections 313 and 314 of Cr.P.C, cannot now ask for an opportunity under section 246(4). The arguments are required to be mentioned for rejection for the simple reason that section 246(4) is valuable statutory right extended to the accused and in a criminal jurisprudence, there can be no question of waiver of such crucial right.
21. Learned counsel for the petitioner submitted that statements of the witnesses were recorded under section 313 on 29.09.2015 and the judgement was delivered on 20.10.2016 by the trial court and the accused did not apply for the opportunity under section 246(4) of Cr.P.C even during the said span of one year. In the opinion of this Court, with the statement under section 313 of Cr.P.C, followed by the arguments, the trial virtually stood concluded; except for the judgement, leaving no scope for the accused to follow other nonexistent procedure. No substance is therefore found in this argument.
22. Having regard to the facts and circumstances discussed above, this court does not find any jurisdictional error in the impugned judgment and order rendered by the learned 3rd Additional Sessions Judge, Dahod in Criminal Appeal No. 27 of 2016. The petition therefore, must fail and accordingly is ordered to be dismissed. Rule is discharged.
(G.R.UDHWANI, J) niru* Page 9 of 9