Karnataka High Court
The State Of Karnataka vs S. Dhandapani Modaliar on 27 March, 1991
Equivalent citations: 1992CRILJ24, ILR1991KAR2040, 1991(2)KARLJ486
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT Singh, J.
1. This appeal has been preferred by the State of Karnataka against the judgment and order of the J.M.F.C., Malur, Dt. 24th Feb., 1987 in C.C. No. 270 of 1984 acquitting the respondent of the charges levelled against him. The respondent was prosecuting on the basis of a complaint filed by the Drugs Inspector, Kolar under S. 18A read with S. 28, S. 18(a)(vi) read with R. 65(6) and S. 27(b), S. 18(a)(vi) read with R. 65(18) of the Drugs and Cosmetics Act and the Rules framed thereunder. The learned Magistrate held that the prosecution had failed to prove the charges levelled against the respondent and consequently ordered his acquittal.
2. We heard the learned Additional State Public Prosecutor on behalf of the appellant and the counsel for the respondent at length. We found that some of the important suggestions which should have been put to the witnesses had not been put to them and therefore many statements made by the witnesses went untested by cross-examination. Obviously, this went against the interest of the respondent. On further investigation we found that though the case was tried as a warrant case instituted otherwise than on a police report, the procedure envisaged by S. 246 of the Criminal P.C. was not followed and we feel that that has resulted in prejudice to the respondent.
3. It is not in dispute that the Drugs Inspector, Kolar, filed a complaint which gave rise to C.C. No. 270 of 1984 before the court of the J.M.F.C., Malur. As earlier noticed, the complaint relates to the commission of offences under the Drugs and Cosmetics Act and the Rules framed thereunder.
4. Several witnesses were examined by the prosecution including P.W. 1 who is the complainant in the case. We find from the records that P.W. 1 was examined on 19-11-1985, 20-11-1985 and then again on 12-3-1986. Similarly, the other witnesses were examined on subsequent dates, but before the charges were framed against respondent. Ultimately, the learned Magistrate framed charges against the respondent on 6th Jan., 1987. From the order sheet of the Court of the learned Magistrate it appears that immediately after framing of the charges and recording the plea of the respondent, who pleaded not guilty, the Court proceeded to fix 16th January 1987 as the date for the examination of the respondent under S. 313 of the Criminal P.C. In the order sheet of 6th Jan., 1987 there is a noting to the effect that the counsel appearing for the parties have jointly stated that apart from the enquiry already made, no further enquiry is required to be made. The aforesaid noting in the order sheet, unfortunately, does not give a clear picture as to whether the accused-respondent had been questioned by the Court as to whether he wished to cross-examine the witnesses already examined by the prosecution.
5. Section 246 of the Criminal P.C. provides that after recording of evidence, if the Magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence triable under this Chapter, he shall frame in writing a charge against the accused. The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Further, sub-section (4) of S. 246 lays down that if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted on a plea of guilt, he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. It is, therefore, apparent from the scheme of S. 246 of the Criminal P.C. that the law provides the accused an opportunity of thinking over the matter in the light of the evidence that has been adduced before the Court and then to inform the Court whether he wishes to cross-examine the witnesses already examined by the prosecution before framing of the charge. Obviously, such an opportunity is to be given to the accused because in large number of cases they are ignorant of the law and must need advice before he can make up his mind whether to further cross-examine the witnesses already examined by the prosecution. The express words employed in S. 246(4) viz., 'at the commencement of the next hearing of the case' emphasises this aspect of the matter, so that the accused is not compelled to make a decision on the spot immediately after framing of charge. It is worth remembering that the evidence that is adduced before the framing of charge is only directed to establish a case which if unrebutted would lead to the conviction of the accused. Since that is the limited purpose for which evidence is adduced before framing of the charge, the accused may not feel it necessary to cross-examine such witnesses at length so as to make out his defence. The stage for serious consideration on this aspect of the matter arises only if the court decides to frame a charge and actually frames a charge against the accused. It is therefore of significance that law provides for some time to intervene between the date on which the charge is framed and the date on which the accused is required to state as to whether he wishes to cross-examine any or all the witnesses examined by the prosecution before the framing of the charge. 6. In the instant case, the order sheet dt. 6th Jan., 1987 is not clear as to whether the accused was, in fact, required to make such a statement. Joint statement made by the counsel appearing for the parties is of no avail because admittedly, at that stage, there was no question of putting any question to the counsel for the prosecution. Moreover, the Magistrate has not recorded any reason why he considered it necessary to require the accused to state on that date itself whether he wished to cross-examine any of the witnesses examined by the prosecution before the framing of the charge. We, therefore, hold that the learned Magistrate has not followed the procedure as laid down in S. 246 of the Criminal P.C. with the result that a valuable right of the respondent has been defeated.
7. This Court in State of Mysore v. Mangamma, 1966 (2) Mys LJ 762 laid down that the provisions of S. 256(1) of the Code of 1898 were imperative and failure to follow the procedure was an illegality. Except in cases where the Magistrate wants to proceed to question the accused the same day, in all other cases, the case will be adjourned to another date in order to afford the accused an opportunity to think over his line of defence and then state his case. The view that we have taken is in accord with the observations of this court in the aforesaid judgment.
8. The failure to give an opportunity to the accused to state whether he wishes to cross-examine any of the witnesses already examined by the prosecution on a subsequent date is not an illegality which will vitiate the trial itself. However, having regard to the prejudice that may be caused to the accused, it would be proper, in such cases to remit the case to the court of the learned Magistrate to proceed with the trial from the stage of S. 246 of the Criminal P.C. In the instant case, we have therefore decided to follow that procedure.
9. In the result, the judgment and order of the learned Magistrate are set aside and the matter is remitted to the Court of the JMFC, Malur, who shall fix a date on which he shall require the respondent-accused to state whether he wishes to cross-examine the witnesses examined for the prosecution before the framing of the charge and, if so, which of the witnesses. If the respondent-accused states that he wishes to cross-examine the witnesses mentioned by him, the learned Magistrate shall summon those witnesses for cross-examination by the respondent-accused and thereafter proceed in accordance with law. Nothing said by us in this judgment shall be considered as expression of final opinion on the merit of the case and the learned Magistrate shall proceed to dispose of the matter uninfluenced by any such observation. This appeal is disposed of accordingly.
10. Order accordingly.