Allahabad High Court
Sanjeev Kumar Gupta vs State Of U.P. on 11 May, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 48 Case :- APPLICATION U/S 482 No. - 6812 of 2017 Applicant :- Sanjeev Kumar Gupta Opposite Party :- State Of U.P. Counsel for Applicant :- In Person Counsel for Opposite Party :- G.A. Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Sanjeev Kumar Gupta, the applicant in person, learned A.G.A. for the State and Sri Nitin Gupta, learned counsel for opposite party no. 2 who has put in appearance today.
Facts:
2. The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 30.01.2017 in Case No. 2923 of 2016 (Sanjeev Gupta Vs. Ashok Sabarwal and others) whereby the application dated 28.05.2016 filed by the applicant herein was rejected by the learned Addl. Chief Judicial Magistrate, Court No. 3, Ghaziabad.
3. By the aforesaid impugned order, the learned Addl. Chief Judicial Magistrate has rejected the application of the applicant which was filed for permitting the applicant for examination-in-chief.
4. Briefly stated facts of the present case are that the examination-in-chief of the applicant under Section 244 Cr.P.C. was recorded on 07.05.2016. Thereafter, charges were framed under Sections 323, 406, 420 read with 120-B IPC and on the same day matter was fixed for recording the statement under Section 246 Cr.P.C. Thereafter, 17.05.2016, 21.05.2016 were fixed. Now at this stage on 28.05.2016 the applicant has moved the aforesaid application presenting him for examination-in-chief. The learned court below has considered the submissions of learned counsel for the applicant and the provisions of Section 244 and 246 Cr.P.C. and came to the conclusion that there is no provision under Section 246 Cr.P.C. for again permitting the applicant for examination-in-chief. Consequently, the application was rejected. Aggrieved with this order dated 31.01.2017 the applicant has filed the present application.
Submissions:
5. Learned counsel for the applicant submits the impugned order is wholly arbitrary and illegal. He submits that it is a complaint case under Section 200 Cr.P.C. and therefore, the complainant gets two opportunity of leading evidence in view of the law laid down by Hon'ble Supreme Court in the case of Ajoy Kumar Ghose Vs. State of Jharkhand and others (2009) 14 SCC 115 and the law laid down by Hon'ble Supreme Court in the case of Sunil Mehta and Anr Vs. State of Gujarat and Anr (2013) 9 SCC 209 (para 16) which reads as under:
"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."
6. Learned A.G.A. and learned counsel for the opposite party no. 2 supports the impugned order.
Discussions and findings:
7. I have carefully considered the submissions of the parties.
8. To examine the controversy in question, it would be relevant to reproduce the provisions namely Sections 200, 202, 203, 204, 244 and 246 of Cr.P.C. as under:-
Relevant provisions of Cr.P.C.:
200.- Examination of complainant.-- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
202.- Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
203.- Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
204.- Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accom- panied by a copy of such complaint.
(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
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 summons to any of its witnesses directing him to attend or to produce any document or other thing.
246.-- Procedure where accused is not discharged. (1) If, 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 triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) 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.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(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.
(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."
9. Section 200 Cr.P.C. provides that a Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses present, if any. The proviso to the said section provides an exception that when the complaint is made in writing, the Magistrate need not to examine the complainant and the witnesses in cases where complaint is filed by a public servant acting or purporting to act in discharge of his official duties or in case where the court has made the complaint. In such cases, the complainant and the witnesses need not to be examined. If the Magistrate is satisfied that there is sufficient ground for proceeding, he can straightaway issue process. The three options available to the Magistrate at this stage are as under:
(i) to issue process of complaint, if he is satisfied that there is sufficient ground for proceeding against the accused under Section 204 Cr.P.C.; or
(ii) to dismiss the complaint under Section 203 Cr.P.C.; or
(iii) to hold an inquiry--
(a) by himself; or
(b) by directing investigation by the police officer; or
(c) by any other person for the purpose of deciding whether or not there is sufficient ground for proceeding.
10. The inquiry under Section 202 Cr.P.C. is of a limited nature to find out whether there is a prima-facie case to issue process against the person accused of the offence in the complaint and to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such person. At that stage, the evidence is not to be meticulously appreciated, inasmuch as, the limited purpose is to find out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinizing the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 Cr.P.C. the accused has no right to intervene and that it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interest of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430, Vadilal Panchlal Vs. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113, Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar AIR 1962 SC 876, Nirmaljit Singh Hoon Vs. State of West Bengal (1973) 3 SCC 753, Mohinder Singh Vs. Gulwant Singh and others (1992) 2 SCC 213, Kewal Krishna Vs. Suraj Bhan and another 1980 Supp SCC 499 and Rosy and another Vs. State of Kerala and others (2000) 2 SCC 230 (para 10 and 11). In the case of Rosy (supra) Hon'ble Supreme Court considered the effect of Section 202 Cr.P.C. and held as under:
15. The Madras High Court in M.G. Pillai v. T. Pillai, (1983) Crl. L.J. 917 has held that order of committal passed under Section 209 by the Magistrate taking cognizance of an offence under Section 200 and there-after straightway issuing process under Section 204 is a valid committal order and that cannot be challenged as illegal on the ground that Magistrate has not availed himself of an inquiry under Section 202. How-ever, the Court further held that once the Magistrate decides to follow Section 202, which is an enabling provision, the proviso to Section 202 (2) would come into operation, which makes it obligatory for Magistrate to call upon the complainant to produce all his witnesses and examine them on oath; the failure on his part to comply with the statutory direction given under the said proviso would vitiate the further proceedings taken by him.
16. We agree with the conclusion of the Madras High Court to the effect that Section 202 is an enabling provision and it is a direction of the Magistrate depending upon the facts of each case, whether to issue process straightway or to hold the enquiry. However, in case where enquiry is held, failure to comply with the statutory direction to examine all the witnesses Would not vitiate further proceeding in all cases for the reasons that
(a) in a complaint filed by a Public servant acting or purporting to act in dis-charge of his official duties, the question of holding inquiry may not arise,
(b) whether to hold inquiry or not is discretionary jurisdiction of the Magistrate,
(c) even if he decided to hold inquiry it is his further discretion to examine the witnesses on oath. If he decides to examine witnesses on oath in a case triable exclusively by the court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath,
(d) it would also depend upon facts of each case depending upon the prejudice caused to the accused by non-compliance of the proviso (Sec. 465), and
(e) that the objection with regard to non-compliance of proviso should be taken at the earlier stage when the charge is framed by the Sessions Court.
17. At the initial stage, if objection is raised and it is found by the Sessions Court that by non-holding of inquiry, prejudice is caused to the accused, he may direct the Magistrate to follow the procedure prescribed under the proviso. It is no doubt true that by the use of the words "shall", it appears that language used in the proviso is of mandatory nature. At the same time, it is a procedural law and it is to be read in context of Section 200 which enables the Magistrate to issue process without holding any inquiry and that inquiry under Section 202 is itself discretionary one-- giving option to examine or not to examine witnesses. Hence, proviso to the said sub-section is required to be read accordingly though couched in mandatory term by using the word 'shall'. Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a case where a complaint is filed, not by the public servant, and where the offence is exclusively triable by the court of Session the Magistrate should follow the proviso to sub-section (2) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which inter alia provides for supply of copy of statements and documents to accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused. In the Sessions triable case, under Section 226 the prosecution has to open its case by describing the charge brought against the accused and stating by what evidence it proposes to prove the guilt of the accused. On such submission, the Sessions Court is required to consider the record of the case and the documents submitted therewith and after hearing the submissions of the accused and prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such considera-tion, if the court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, court is required to frame the charge as provided under Section 228. Hence, for the purpose of framing the charge also the recording of such evidence is necessary. It also facilitates the accused to know allegation made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all Sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established.
20. Hence, what emerges from the above discussion is :
I. (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence oa the complaint after examining upon oath the complainant and the witnesses present;
(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses.
(c) In such case Court may issue process or dismiss the complaint.
II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person ac-cused. Such inquiry can be held by him or by the police officer or by other person authorised by him.
(b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory direc-tions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be com-mitted to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204 (2) before issuance of the process,
(c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complain-ing of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. if he fails to raise such objection at the earliest stage. he is precluded from raising such objection later.
11. In the case of Ajoy Kumar Ghose (supra) (paras 21 to 41 and 51) Hon'ble Supreme Court considered the provisions of Section 200, 202, 204, 244 and 246 Cr.P.C. and held as under:
"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) Cr.P.C., 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) Cr.P.C. 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) Cr.P.C., 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) Cr.P.C. 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 charge. Of course, under Section 245(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.
23. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., 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) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr.P.C., on the ground that the charge was groundless.
24. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has 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 Section 245(1) Cr.P.C.
25. The situation under Section 245(2) Cr.P.C. 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) Cr.P.C., 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 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "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) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. 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 necessary, where the complaint 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 Cr.P.C. Under Section 201 Cr.P.C., 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.
27. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court.
28. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding.
29. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C.
30. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him.
31. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge.
32. In the present case, the Magistrate did not dismiss the complaint under Section 203 Cr.P.C. However, since this was a complaint made by the Court, there was no question of examining complainant or any of his witnesses under Section 200 Cr.P.C. Further, there was no question of even issuing any direction for investigation under Section 202 Cr.P.C., since the complaint was made by the Court. This is clear from the wordings of Section 202(1) Cr.P.C. It is as under:-
"202. Postponement of issue of process.--(1) ...........
Provided that no such direction for investigation shall be made-
(a) x x x x x
(b) where the complain has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200."
33. We have already pointed out that since this was a complaint made by the Court, therefore, there would be no question of there being any examination of complainant or his witnesses on oath. As has already been stated earlier, the Magistrate simply issued the process under Section 204 Cr.P.C.
34. When the accused appeared in pursuance to the summons sent to him, under Section 244 Cr.P.C., the defence came out with an application. There can be no difficulty that the discharge application was perfectly in order at that stage. Therefore, what was available before the Magistrate besides this discharge application was, a bare complaint. There was absolutely nothing beyond the complaint available, for the Magistrate to consider the framing of charge. The Magistrate could, undoubtedly, have proceeded under Section 245(2) Cr.P.C., on the basis of discharge application and discharge him. However, he would have been required to give reasons for discharging at that stage, when no evidence or no material, whatsoever, was available with him, excepting a bare complaint.
3. The Magistrate, in this case, not only dismissed the application, but also proceeded to frame the charge, which order was also in challenge in the Writ Petition filed before the Division Bench. We have now to see as to whether the Magistrate was justified in dismissing the discharge application and then straightaway to frame a charge under Section 246(1) Cr.P.C. If under Section 245(2) Cr.P.C., there could be a discharge at any previous stage which we have discussed about, there is a necessary sequel, an application could also be made at that stage.
36. The Magistrate has the power to discharge the accused under Section 245(2) Cr.P.C. at any previous stage, i.e., before the evidence is recorded under Section 244(1) Cr.P.C., which seems to be the established law, particularly in view of the decision in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. reported in 1971 (3) SCC 239, as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo Vs. Mahadev reported in 1984 Criminal Law Journal 513. The same decision was followed by Kerala High Court in Manmohan Malhotra Vs. P.M. Abdul Salam & Anr. reported in 1994 Criminal Law Journal 1555 and Hon'ble Justice K.T. Thomas, as the Learned Judge there was, accepted the proposition that the Magistrate has the power under Section 245(2) Cr.P.C. to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of Madras High Court in Mohammed Sheriff Vs. Abdul Karim reported in AIR1928 Madras 129, as also the judgment of Himachal Pradesh High Court in Gopal Chauhan Vs. Smt. Satya reported in 1979 Criminal Law Journal 446.
37. We are convinced that under Section 245(2) Cr.P.C., the Magistrate can discharge the accused at any previous stage, i.e., even before any evidence is recorded under Section 244(1) Cr.P.C. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.
38. However, the real difficulty arises in the Trial Court's proceeding to frame the charge under Section 246 Cr.P.C. It is obvious that at that stage of framing a charge in this case, no material, whatsoever, was available with the Trial Court, excepting the complaint, which was also not supported by any statement on oath, by the complainant or any of his witnesses, which ordinarily are recorded at the stage of Section 200 Cr.P.C. In this case, since the complaint was by the Court, no such statement came to be recorded, of the complainant or any of his witnesses present. Here also, the Trial Court has committed no mistake. Again, the Trial Court has also not made any mistake in issuing the process, if the Trial Court felt that there was a ground for proceeding. The real question, which comes, however, is as to how after rejecting the application made by the accused under Section 245(2) Cr.P.C., the Trial Court straightaway proceeded to frame the charge.
39. The charge is framed under Section 246(1) Cr.P.C., which runs as under:-
"246. Procedure where accused is not discharged.--(1) If, 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 triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused."
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) Cr.P.C., 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 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.
40. Now here, there is, however, one grey area. Section 246(1) Cr.P.C. is very peculiarly worded. The said grey area is on account of phrase "or at any previous stage of the case". The question is as to whether, even before any evidence is led under Section 244 Cr.P.C., can the Magistrate straightaway proceed to frame a charge. The debate on this question is not new, though there is no authoritative pronouncement of this Court, on that issue. There are cases, where the High Courts have specifically taken a view that the phrase does not empower the Magistrate to frame any charge in the absence of any evidence, whatsoever. It must be, at this stage, borne in mind that the word used in Section 246 Cr.P.C. is "evidence", so also, in Section 244 Cr.P.C., the word used is "evidence". Therefore, ordinarily, the scheme of the Section 246 Cr.P.C. is that, it is only on the basis of any evidence that the Magistrate has to decide as to whether there is a ground to presume that the accused has committed an offence triable under this Chapter.
51. Accordingly, the appeal is disposed of with the direction that the matter shall now go back to the Trial Court and the Trial Court shall proceed to examine all the witnesses offered by the prosecution and it is only after the evidence of those witnesses is recorded, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The appeal, thus, succeeds partly."
12. In the case of Sunil Mehta and Anr (supra) (paras 12, 17 to 19) Hon'ble Supreme Court considered the provisions of Sections 244 and 246 Cr.P.C. and held as under:
"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 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 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.
17. 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.
18. 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 the Parliament intended to take away any such right at the pre-charge stage.
19. We are supported in the view taken by us by the decision of this Court in Ajoy Kumar Ghose (supra). 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 of the Cr.P.C. This Court held that the procedure adopted by the trial Court was not correct because the language of Section 246(1) Cr.P.C. 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:
"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) Cr.P.C., 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 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.""
13. Perusal of the provisions of Section 244, 245 and 246 Cr.P.C. and the discussions made and the law laid down by Hon'ble Supreme Court, as aforenoted, leaves no manner of doubt that once the accused appears and is brought before the Magistrate, the prosecution has to be heard and all such evidence as is brought in support of its case are recorded. The trial of an accused under Chapter XIX Part B (Section 244, 245, 246 and 247) Cr.P.C. and the evidences relevant for it, has no nexus, proximate or otherwise with the evidence adduced at the initial stage whether the Magistrate records depositions and examines the evidence for the purpose of Section 204 Cr.P.C. to decide whether a prima-facie case for proceeding further has been made out.
14. The evidence adduced at that stage may often be the same which may be adduced subsequently but the difference lies between approach that the court adopts at the time of taking cognizance and summoning of the accused and that recorded at the trial. While former is the process i.e. conducted in the absence of the accused, the latter is undertaken in presence of the accused with a liberty to him to cross examine the witnesses produced by the prosecution. The evidence referred in Section 244, 245, 246 Cr.P.C. read with 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 person against whom this evidence is produced to cross examine the witnesses concerned. The whole object behind recording of evidence under Section 244 Cr.P.C. after the accused had appeared, is to ensure that not only the accused has opportunity to hear the evidence adduced against him, but also to defend himself by cross examining the evidence with a view to show that the witnesses are either unreliable or that a statement made by him does not have any evidenciary value and that it does not incriminate him.
15. In warrant trial instituted otherwise than the police report, the complainant gets two opportunity to lead evidence, firstly, before charges framed and secondly after the charges. Ordinarily when the evidence is led under Section 244 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge. The phrase "if, when such evidence has been taken" used in section 246 Cr.P.C. clearly refers to the evidence under Section 244 Cr.P.C. Thereafter, the prosecution again have an opportunity to lead evidence of any remaining witnesses under Section 246(6) Cr.P.C.
16. The applicant/ complainant herein has availed the opportunity to lead evidence under Section 244 Cr.P.C. on 07.05.2016 and thereafter, the charges were framed and on the same day, the matter was put up for statement under Section 246 Cr.P.C. at 2.15 p.m. Thereafter 17.05.2016 and 21.05.2016 were fixed in the matter. On 28.05.2016 the applicant/ complainant moved an application to present himself again for examination-in-chief. Section 246(6) Cr.P.C. permits a complainant to produce the evidence of any remaining witness. This section 246 does not permit the applicant/ complainant to present himself again for examination-in-chief as has been sought by the applicant herein vide his application dated 28.05.2016.
17. Under the circumstances, rejection of the aforesaid application dated 28.05.2016 by the impugned order dated 30.01.2017 does not suffer from any error or law. Consequently, the present application under Section 482 Cr.P.C. deserves to be dismissed.
18. In view of the above discussions, the application is dismissed.
Order Date :- 11.5.2017 IrfanUddin