Karnataka High Court
Sri E X Anthony vs Mrs Maliakkal Perianchery Ansa on 13 July, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.2635/2017
BETWEEN:
SRI. E.X. ANTHONY
AGED ABOUT 60 YEARS
S/O LATE E.M. XAVIOUR
RESIDENT OF THE PREMISES
BEARING NO.7/48, 4TH CROSS
LINGARAJAPURAM
BANGALORE-560 084.
... PETITIONER
(BY SRI. RAGHAVENDRA K, ADVOCATE)
AND:
MRS. MALIAKKAL PERIANCHERY ANSA
AGED ABOUT 54 YEARS
D/O MALIAKAL PERIANCHERY
VARUNNI SEBASTIAN
RESIDENT OF THE PREMISES
BEARING NO.87
R. KRISHNA REDDY'S HOUSE
APPA REDDYPALYAM
INDIRANAGAR POST
BANGALORE-560 038.
... RESPONDENT
(BY SMT. MALIAKKAL PERIANCHERY ANSA, PARTY-IN-
PERSON)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 17.9.2016 PASSED IN C.C.NO.14696/1991 ON THE
FILE OF VI ADDL.C.M.M, BANGALORE ON THE
APPLICATION FILED BY THE PETITIONER U/S 246 OF
CR.P.C AND GRANT THE SAID APPLICATION IN ITS
TOTALITY.
THIS CRIMINAL PETITION COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
A short, but an important question of law which arises for consideration in this petition is:
"Whether a complainant is entitled to be examined afresh or permitted to lead further evidence after evidence came to be tendered by the accused in a proceedings initiated on a private complaint?
BRIEF BACKGROUND OF THE CASE:
2. Respondent herein filed a complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate alleging that during the subsistence of her marriage 3 with the petitioner, he had married another lady i.e. accused No.2 and as such, accused Nos.1 & 2 had committed offences punishable under Sections 107, 111, 112, 117, 493 and 494, 496 and 497 of IPC.
3. On recording of sworn statement of the complainant, process came to be issued to the petitioner and after recording the plea of the accused, respondent-
complainant got herself examined as P.W.1 on more than one occasion and was subjected to cross- examination. Two (2) witnesses were examined on behalf of complainant and they were also cross examined. After hearing the arguments before charge, learned Magistrate by order dated 28.09.2004 ordered for framing of charge against the petitioner-accused No.1 and accused No.2 for the offence punishable under Section 494 IPC. Said order came to be questioned by the petitioner herein before the Sessions Court, which challenge came to be negatived and it was confirmed by this Court on 25.11.2010 in Cr.P.No.3832/2005. On 30.07.2011 charge came to be framed against accused 4 Nos. 1 and 2 and matter came to be listed for recording complainant's evidence and evidence in part came to be recorded on 24.07.2012 and adjourned to 15.09.2012. On 26.07.2013 petitioner-first accused filed an application under Section 246 Cr.P.C. contending interalia that after framing of charge accused-petitioner had pleaded not guilty and had also not proposed to cross-examine the complainant and her witnesses as provided under Section 246(5) Cr.P.C. and as such, next step which the learned Magistrate will have to take is to record the evidence of remaining witnesses of the complainant, if any and trial Court would not be empowered to record further evidence of the complainant. It was also contended that further examination-in-chief of complainant after framing of charge is contrary to the procedure contemplated or prescribed under Section 246(5) and 246(6) of Cr.P.C. On these grounds, petitioner-accused sought for a direction to the complainant to examine the remaining witnesses, if any and to reject the prayer of the complainant for her further examination-in-chief. This 5 application came to be opposed by the complainant i.e., respondent herein by filing objections. Trial Court after considering rival contentions by impugned order dated 17.09.2016 dismissed the application filed by accused on the ground that matter was posted for recording of further examination-in-chief of P.W.1 on 26.07.2013 and adjourned from time-to-time to hear on the application filed under Section 246 Cr.P.C. by the accused and on account of non-prosecution, complaint had been dismissed on 18.01.2014, which order came to be set aside by the Fast Track Court on 14.10.2014 directing the Magistrate to proceed with the matter in accordance with law by concluding and holding complainant has a right to lead further evidence and also on the ground that complainant is master of her case and as such, it would not be proper for the Magistrate to direct the complainant to lead the evidence of her witnesses only.
4. I have heard the arguments of Sri.C.V.Nagesh, learned Senior Counsel appearing on 6 behalf of Sri.K.Raghavendra for petitioner, Smt.Malaikkal Perianchery Anse, party-in- person/respondent and Sri.Sandesh J. Chouta - Amicus Curiae, who was requested by the Court to assist in the matter. Perused the records.
5. Chapter XIX of Cr.P.C. deals with the procedure in respect of warrant-cases either instituted on a police report i.e., under Sections 238 to 243 Cr.P.C. or instituted otherwise than on a police report i.e., Sections 244 to 247. Sections 248 to 250 Cr.P.C. deals with the conclusion of trial. Heading 'A' under Chapter XIX, would indicate that it relates to Cases instituted on a police report, whereas heading 'B' relates to Cases instituted otherwise than on police report.
6. When a complaint under Section 200 is presented before a Magistrate, before taking cognizance of offence alleged in the complaint, Magistrate would examine the complainant and witnesses present upon oath if any, by recording the substance of such 7 examination and may take cognizance of the offence, if he is of the opinion that there is sufficient ground for proceeding or refer the matter for investigation under Section 156(3) of Cr.P.C. and after considering the statements made on oath by the complainant and witnesses or based on the result of investigation, learned Magistrate is of the opinion that there is no sufficient ground for proceeding, he would dismiss the complaint under Section 203 of Cr.P.C. by recording the reasons in brief.
7. A plain reading of Section 244(1) of Cr.P.C. would disclose that where the Magistrate does not dismiss the complaint under Section 203 of Cr.P.C. and process is issued under Section 204 and accused appears or is brought before the Court then Magistrate is required to hear the prosecution and take all such evidence produced in support of the prosecution. This step is held as commencement of trail of a warrant-case. The Magistrate is also required to summon such persons whom the prosecution/complainant intends to 8 examine in support of its case. It is trite law that such evidence must be taken in the manner laid down under Section 138 of the Indian Evidence Act, 1872. It is required to be noticed at this stage that expression "all such evidence" occurring in Section 244(1) of Cr.P.C. does not limit to witnesses mentioned in the list appended to the complaint and it would also be referable or include any other witnesses mentioned in the application that may be filed by the complainant subsequently. Sub-section (2) of Section 244 Cr.P.C. would disclose that Magistrate on an application of prosecution/complainant would be required to issue summons to such of the witnesses directing him/her to attend or produce any document or other thing in their possession.
8. On receiving all such evidence referred to in Section 244 Cr.P.C., if the Magistrate for the reasons to be recorded in writing, considers that no case against the accused has been made out which, if unrebutted, would not warrant his conviction, he would discharge 9 the accused and sub-section (2) of Section 245 Cr.P.C. would clearly indicate that nothing is deemed to prevent a Magistrate from discharging the accused at any previous stage, if he considers the charge to be groundless.
9. In order to adjudicate the point formulated hereinabove, this Court is of the considered view that scheme of Section 246 of Cr.P.C. requires to be analysed and in the instant case, pivotal issue has hinged upon Section 246 of Cr.P.C., as such said provision is extracted hereinbelow.
"246. Procedure where accused is not discharged.-
(1) xxx (2) xxx (3) xxx (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-
section (3), 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.
10(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-
examination (if any), they shall also be discharged.
10. Where the accused is not discharged and the Magistrate is of the opinion that there is a ground for presuming that accused has committed an offence triable under said Chapter, he has to frame in writing a charge against the accused as per Section 246(1) Cr.P.C. and said charge has to be read out and explained to the accused and accused would be called upon to answer as to whether he pleads guilty or has any defence to make as indicated under Section 246(2) Cr.P.C. In the event of accused pleading guilty, Section 246(3) Cr.P.C. mandates that Magistrate should record such plea and in his discretion convict the accused thereon. The plea must be recorded in the accused's own words unless there are reasons for dispensing with that safeguard.
11
11. A bare reading of sub-section (4) of Section 246 Cr.P.C. would disclose that Magistrate after framing the charge and on recording plea of the accused not pleading guilty or pleads to be tried or refused to plead or accused is not convicted under sub-section (3), extends an opportunity to the accused to further cross- examine the witnesses, who have already been examined for the prosecution. In other words, after recording the plea of the accused under sub-section (4) of Section 246 Cr.P.C. the Magistrate is required to state at the commencement of next hearing of the case as to whether accused wishes to cross-examine any, and, if so, which of the witnesses already examined for the prosecution whose evidence has been taken and this step is mandatory. The scheme of sub-section (4) of Section 246 Cr.P.C. would clearly indicate that law provides the accused an opportunity to think over the matter in the light of evidence that has been already adduced before the Court and to inform the Court whether he (accused) wishes to cross-examine the 12 witnesses any, and if so the witnesses for the prosecution whose evidence has been taken. This opportunity is statutorily extended to the accused in the light of express words employed in sub-section (4) of Section 246 Cr.P.C. namely, 'at the commencement of next hearing of the case', so that accused may not be compelled to take a decision on the spot after framing of charges. In other words, expression referred to herein above would indicate that sufficient time should be given to the accused to consider, apply his mind, delve upon the depositions of prosecution witnesses and then form an opinion as to whether accused wishes to cross- examine any of the prosecution witnesses after framing of charge. In the event of accused intends to cross- examine the witnesses whose evidence has already been tendered on behalf of prosecution to be recalled and after cross-examination and re-examination, if any, such witnesses are to be discharged as per sub-section (5) of Section 246 Cr.P.C. and it is a positive or mandatory duty cast upon the Magistrate. 13
12. There may be instances where the complainant along with complaint, a list of witnesses would have been filed and they might have been examined at the first instance namely, at the time of Magistrate taking cognizance of offence or their evidence recorded under Section 244(1) Cr.P.C. when accused appears or brought before the Magistrate or in some instances, the complainant may propose to examine additional witnesses. It is in this background, expression "remaining witnesses" occurring in sub- section (6) of Section 246 Cr.P.C. would acquire significance. A bare reading of sub-section (6) of Section 246 Cr.P.C. would disclose that expression 'remaining witnesses' is not limited to those witnesses referred to in Section 244 Cr.P.C. alone and it would include any other witnesses, who according to the prosecution may be able to support its case, though they might have not been summoned and named before framing of the charge. There may be instances where in the witness list furnished along with the complaint, some of the witnesses who have been named in the list 14 had not been examined when evidence on behalf of prosecution/complainant came to be recorded under Section 244 Cr.P.C. and thereafter, complainant/prosecution may be of the view that evidence of those persons whose name/s is already found in the list is also required to be tendered since they would be able to support the case of the complainant/prosecution and as such, complainant/prosecution intends to examine such of the witnesses whose names are already appearing in the list. Even such witnesses would fall within the four corners of expression 'remaining witnesses'. Further, complainant may also intend to examine witnesses whose names are not found in the list already furnished along with the complaint by submitting an additional list or supplementary list of witnesses. Thus, sub- section (6) of Section 246 Cr.P.C. enable the complainant/prosecution to furnish additional list of witnesses for being examined on behalf of prosecution to prove the guilt of the accused.
15
13. Thus, incidental question which would arise or in other words, answer to be furnished to the point already formulated hereinabove would be:
"Whether complainant can get himself/herself examined afresh?"
14. Hon'ble Apex Court in the case of SAYEEDA FARHANA SHAMIM vs. STATE OF BIHAR AND ANOTHER reported in (2008) 3 SCC (Crl.) 449 has held that Magistrate has discretion before he closes the trial, to summon any of the witnesses if it advances the cause of justice and such discretion should not be used fancifully and for malafide purpose or to harass the accused. It has been held:
"9. Now, the question is whether a supplementary list of witnesses can be furnished by the complainant and the Magistrate can summon those witnesses to be examined. The question is whatever witnesses who have been examined under Section 244 CrPC, whether the Magistrate cannot entertain any further list of witnesses to be examined by the complainant to substantiate his allegation in the complaint. It is true that under Section 244 CrPC if the charge is framed, then the prosecution has to examine the evidence produced by it in support of its 16 case. After that the accused will have the right to cross-examine and the matter will proceed to be decided under Section 246. But before the matter is decided and during the pendency of the trial can the Magistrate entertain any petition filed by the prosecution for examining additional evidence in support of its case.
10. Learned counsel for the appellant invited our attention to the following decisions of various High Courts:
(i) Jamuna Rani v. S. Krishna
Kumar
(ii) Nawal Kishore Shukla v. State of
U.P.
(iii) S. Vivekanantham v. R.
Viswanathan
(iv) V. Ratna Shenoy v. S.A.Prabhu
(v) State of Bombay v. Janardhan
(vi) K. Somasundaram v. Gopal
11. Before we refer to decisions of various High Courts, it may be mentioned here that the discretion of the Magistrate is nowhere fettered by any of the provisions contained in CrPC. Section 244 CrPC reads as under:
"244. Evidence for prosecution.--(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a 17 summons to any of its witnesses directing him to attend or to produce any document or other thing."
The expression used is, "the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution". Similarly, sub-section (6) of Section 246 CrPC reads as under:
"(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged."
The expression used is, "the evidence of any remaining witnesses for the prosecution shall next be taken".
Therefore, the Magistrate has discretion, before he closes the trial, to summon the witnesses if it advances the cause of justice. Here we want to say a word of caution that the discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6) CrPC should be used in appropriate cases for reasons to be recorded. The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case. This should be checked but in case it is found that in fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may 18 exercise such power in appropriate case."
15. In the case of AJOY KUMAR GHOSE vs. STATE OF JHARKHAND AND ANOTHER reported in (2009) 14 SCC 115 Hon'ble Apex Court has held that right of cross-examination of a witness is a very salutary right and accused has to be given an opportunity to cross examine the witnesses, who have tendered their evidence in support of a complaint, even at the stage prescribed under Section 244(1) Cr.P.C. It has been held:
"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."
"53. Now, coming to the facts of this case, it is clear that the opportunity to the accused to cross-examine the witnesses is 19 lost as the trial court has straightaway proceeded to frame the charge. In that view, we would have to quash the order, framing the charge. It is accordingly quashed. The matter will now go back before the trial court where the prosecution may offer the witnesses under Section 244(1) CrPC and the opportunity to cross-examine would be offered to the accused. It is only thereafter, that the trial court would proceed to decide as to whether the charge is to be framed or not. The charge framed in this case is clearly premature, in view of the reasons given by us. The order framing the charge would, therefore, have to be set aside."
16. Hon'ble Apex Court in AJAY KUMAR GHOSE's case above referred to has further held that even under the category of cases instituted otherwise than on the police report, complainant gets two (2) opportunities to lead evidence. It has been held:
"21. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) CrPC on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) CrPC, 20 whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) CrPC. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity.
22*. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the framing of the charge. Of course, under Section 245(2) CrPC, a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.
23. Essentially, the applicable sections are Sections 244 and 245 CrPC since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) CrPC or to summon its witnesses under Section 244(2) CrPC. This did not happen and instead, the accused proceeded to file an application under Section 245(2) CrPC on the ground that the charge was groundless.
24. Now, there is a clear difference in Sections 245(1) and 245(2) of CrPC. Under Section 245(1), the Magistrate has 21 the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section2 45(1) CrPC.
25. The situation under Section 245(2) CrPC is, however, different. There, under sub-section (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e., even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under Section 244 CrPC. The words appearing in Section 245(2) CrPC "at any previous stage of the case", clearly bring out this position.
26. It will be better to see what is that "previous stage". The previous stage would obviously be before the evidence of the prosecution under Section 244(1) CrPC is completed or any stage prior to that. Such stages would be under Section 200 CrPC to Section 204 CrPC.
Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not 22 necessary, where the compliant has been made by a public servant in discharge of his official duties or where a court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 CrPC. Under Section 201 CrPC, if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper court or direct the complainant to a proper court."
17. A combined reading of sub-section (4), (5) and sub-section (6) of Section 246 Cr.P.C. it would clearly disclose that an opportunity for the prosecution to lead evidence is available even after framing of the charge. When the accused appear or is brought before the Magistrate under Section 244(1), the Magistrate would hear the prosecution and take all such evidence as may be produced in support of the prosecution. The Magistrate may also issue summons to the witnesses directing the witnesses to attend or produce any document or thing in exercise of power vested under Section 244(2) on the application of the prosecution. The evidence so recorded would be before framing the charge. It is this evidence which would be so recorded 23 by the Magistrate either under Section 244(1) or under Section 244(2), which would sway in the mind of the learned Magistrate to discharge the accused under Section 245(1), inasmuch as, it is this evidence which the Magistrate has to consider to examine as to whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and in the event of Magistrate arriving at a conclusion that there is no such case made out against the accused, he may proceed to discharge the accused. However, if the Magistrate is of the view and being satisfied that sufficient material exists against the accused for framing the charge, he would proceed to do so under Section 246(1) of Cr.P.C. In fact, the Magistrate is also empowered to discharge the accused under Section 245(2) Cr.P.C. at any previous stage of the case for reasons to be recorded that charge is groundless as already noticed hereinabove. At this stage, consideration of evidence would not arise, inasmuch as, there would be no evidence. Thus, the expression "at any previous stage" occurring in sub-section (2) would necessarily 24 mean before evidence of the prosecution as contemplated under Section 244(1) Cr.P.C. is completed or any stage prior to that.
18. Even otherwise, Section 246(5) of Cr.P.C. enables the prosecution and Court is also empowered to recall any of the witnesses for purposes of recording further evidence, to advance the cause of justice. As such, it cannot be construed or held that the expression "remaining witnesses" occurring in sub-section (6) of Section 246 would act either as a complete bar or a fetter on the complainant not to tender further evidence which could not have been tendered at earlier stage and thereby scuttle the right of the complainant/prosecution. It would be always open to the accused to demolish such further evidence if any tendered by the complainant/prosecution, inasmuch as, accused would have a right to cross examine either the complainant or the witnesses who have already been examined and thereby no prejudice whatsoever would be caused to the accused.
25
19. The Hon'ble Apex Court in the case of SUNIL MEHTA vs STATE OF GUJARAT reported in (2013)9 SCC 209 while examining the right of cross examination available to an accused under Sections 244 to 246 Cr.P.C has held that such 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 state. It has been held:
"11. A simple reading of the above section would show that the Magistrate is required to frame in writing a charge against the accused "when such evidence has been taken" and there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and adequately punish.
12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section
244. The expression "when such evidence has been taken" appearing 26 in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the 27 approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross-examine the witnesses produced by the prosecution."
20. In the light of authoritative pronouncement of Hon'ble Apex Court referred to herein supra and the facts already analyzed herein above, leaves no manner of doubt that right of the complainant to tender further evidence after the stage prescribed under sub-section (4) of Section 246 would not in anyway curtail the right of the accused or in other words, complainant is not prevented from tendering further evidence. The ultimate test and goal is determining or discerning the truth which would otherwise not be possible in the absence of the probable evidence that may be tendered by the complainant. The right of the accused to cross examine the witness in the event of any fresh evidence being tendered, being available, it cannot be gainsaid by the accused that tendering of further evidence by the 28 complainant after recording the plea of the accused as contemplated under Section 246 (4) is over, would take away the valuable right of the accused and said contention cannot be accepted.
21. For the reasons aforestated, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby dismissed.
(ii) Order dated 17.09.2016 passed in C.C.No.14696/1991 dismissing the application filed by the petitioner -
accused under section 246 Cr.P.C. is hereby affirmed.
(iii) Since complaint in question came to be filed by the respondent -
complainant on 02.11.1990 and same has been pending for the past 28 years, a direction is issued to the jurisdictional learned Magistrate to dispose of the said proceedings 29 expeditiously at any rate, within three months from the date of receipt of certified copy of this order.
(iv) Learned Magistrate would be at liberty to impose such conditions on the parties to regulate the proceedings and to ensure the conclusion of the proceedings within the timeframe fixed by this Court.
Sd/-
JUDGE *sp/DR