Gujarat High Court
Pravinkumar Manilal Mehta vs Jyotindra M. Bhatt And Anr. on 7 December, 1988
Equivalent citations: (1989)1GLR523
Author: G.T. Nanavati
Bench: G.T. Nanavati
JUDGMENT G.T. Nanavati, J.
1. The opponent No. 1 has filed a complaint against the petitioner in the Court of Metropolitan Magistrate, Ahmedabad, alleging that the accused has committed an offence punishable under Section 206 of the Indian Penal Code. The Court issued process and pursuant thereto the accused appeared before the Court on 10-9-1987. Neither on that day nor on any day subsequent thereto the learned Magistrate took any evidence and straightway framed a charge on 6-8-1988. The petitioner challenged in the Sessions Court that action of the learned Magistrate by filing a revision application. The Sessions Court rejected the same on the ground that it was against an interlocutory order and, therefore, it was not maintainable. The Petitioner has, therefore, filed this application under Section 482 of the Code of Criminal Procedure for quashing the charge and for directing the learned Magistrate to follow the procedure as laid down in Sections 244, 245 and 246 of the Code of Criminal Procedure.
2. It is true that the petitioner has approached this Court under Section 487 of the Code after his revision application to the Sessions Court has been rejected. Ordinarily this Court would not entertain such an application, but, looking to the facts of this case and in order to avoid wastage of public time and money, I have thought it just and proper to entertain this application.
3. It is not in dispute that this is a warrant case instituted otherwise than upon a police report. It is also not in dispute that on the day on which the accused appeared before the learned Magistrate, the prosecution had not kept any witness present, nor any evidence was led on that day. It is also not in dispute that the learned Magistrate framed the charge without any thing more than the complaint and the substance of examination of the complainant under Section 200 of the Code.
4. What is submitted by the learned Counsel for the petitioner is that the learned Magistrate should not have framed the charge without following the procedure laid down in Section 244 of the Code. He further submitted that the procedure prescribed by Sections 244 to 246 of the Code does not permit the Magistrate to frame a charge in the manner in which the learned Magistrate has done in this case. He also submitted that the petitioner had brought this defect in the procedure to the notice of the learned Magistrate immediately and for that reason also this Court should interfere at this stage and direct the learned Magistrate to follow the correct procedure.
5. Section 244 of the Code provides that when, in any warrantcase 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. Plain reading of Section 244 makes it clear that it is now necessary for the Magistrate to take down the entire evidence which may be produced by the prosecution. Section 245 further provides that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. This section empowers the Magistrate to discharge the accused, if he considers that no case against the accused has been made out. But that can be done only after taking all the evidence referred to in Section 244. Sub-section (2) of that section then provides that nothing in that section shall be deemed to prevent the Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Thus, under Section 245 of the Code the Court has two alternatives to follow; it may take all the evidence and then decide whether the accused should be discharged or not, or it may not complete recording of all the evidence and discharge the accused at any previous stage of the case. Obviously the words, "at any previous stage of the case" in Sub-section (2) of Section 245 cannot mean any stage previous to the position contemplated by Sub-section (1). If the said words are interpreted to mean that it can be any stage previous to the stage contemplated by Sub-section (1), then that would make Sub-section (1) of that section redundant. Such an interpretation would also lead to inconsistency between Sub-section (2) of Section 245 and Section 244 of the Code. Therefore, the words, "at any previous stage of the case", in the context in which they are used will have to be interpreted to mean any stage before recording of all the evidence or conclusion of the entire evidence. The scheme of the sections does not permit the Magistrate to discharge the accused before any evidence contemplated by Section 244 is recorded. Section 246 provides that when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, he shall frame in writing a charge against the accused, provided that he is competent to try that offence and, in his opinion he can adequately punish the accused. The correct meaning of the words, "at any previous stage of the case" occurring in this section is the point which arises for determination in this case.
6. It was contended by the learned Counsel for the petitioner that the words, "at any previous stage of the case" occurring in Section 246 of the Code should be given that meaning which is consistent with the Scheme of Sections 244, 245 and 246 of the Code. On the other hand, it was contended by the learned Advocate appearing for opponent No. 1 that the words, "at any previous stage of the case" are wide enough to permit the Magistrate to frame a charge even before the evidence contemplated by Section 244 is recorded. In support of his submission, he relied upon these words of Section 246: "If, when such evidence has been taken...." He submitted that words "such evidence" have a reference to the evidence contemplated by Section 244 and yet it is provided by the Legislature that at any previous stage of the case the Magistrate can frame a charge.
7. In my opinion, there is much substance in the contention raised on behalf of the petitioner. The words, "at any previous stage of the case" though themselves are capable of wide interpretation, in the context in which they are used, they must be so interpreted as to make the scheme of Sections 244, 245 and 246 consistent. It stands to reason that those words and similar words used in Section 245 should be given the same meaning. If the words, "at any previous stage of the case" occurring in Sections 245 and 246 of the Code are interpreted to mean the stage where the accused appears before the Court and no evidence as contemplated by Section 244 is recorded, then that would induce the prosecution not to produce any evidence in all the cases before the charge is framed. That would also enable the accused to urge that he should be discharged even at that stage and no charge should be framed against him. That could not have been the object of the Legislature because following such a procedure would be prejudicial to both the prosecution and the accused. The words, "at any previous stage of the case" occurring in Section 246, therefore, should be interpreted to mean the stage before the recording of the evidence is complete, but not a stage previous to the position contemplated by Sub-section (1) of Section 245. It would mean the stage when some evidence produced by the prosecution has been recorded. Such an interpretation would be in consonance with the object of these provisions viz., balancing the interests of the prosecution and the accused.
8. The interest of the prosecution which is required to be protected, is that the Magistrate should not be permitted to discharge the accused without giving the prosecution an opportunity of producing such evidence as it may think it in support of the case. The interest of the accused which is required to be protected is that he should not be made to undergo a trial when evidence led against him is not found sufficient. In view of this interpretation, which I have put upon the words, "at any previous stage of the case", it will have to be held that the Magistrate cannot frame a charge as long as the evidence led by the prosecution is found sufficient by him for the purpose of framing a charge.
9. Mr. Desai, in support of his submission has relied upon the decision of this Court in the case of K.C. Saksena, Asstt. Collector of Customs v. Virbhadrasinhji K. Gohel and Anr. 1985 (1) GLR 517. The facts of that case clearly show that in that case evidence was recorded before framing the charge. The point which was arisen for consideration in this case did not arise in that case. Therefore, the general observations made in para 8 of the said judgment cannot be regarded as a ratio of that case.
10. For the reasons stated above this application is allowed. The charge framed by the learned Magistrate is quashed and he is directed to proceed with the case in accordance with the procedure laid down in Sections 244 to 246 of the Code of Criminal Procedure. Rule is made absolute.