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Submission of learned counsel for the petitioners is that without recording evidence as contemplated under Section 244 Cr.P.C., learned Magistrate has proceeded to frame the charge. Submission is that the charge could not have been framed without giving opportunity of cross-examination in respect of the evidence adduced under Section 244 (1) Cr.P.C. Learned counsel submits that non-examination of witnesses in the presence of the accused persons and further denying them right to cross-examine the witnesses will prejudice their case and the veracity of the allegations will not be established in a correct manner. Submission is that charge, which has been framed without recording evidence under Section 244 Cr.P.C. is wholly illegal and phrase occurring in Section 246 Cr.P.C. "or at any previous stage of the case" does not mean that any evidence which has been recorded at the time of summoning could be used for the purpose of framing of charge. Learned counsel submits that the evidence as required under Section 3 and Section 138 of the Indian Evidence Act is the proper evidence to be considered and a right to cross-examine cannot be foreclosed before framing the charge. If such right is foreclosed, then authenticity of the evidence cannot be judged by the trial court and the truth will not come to light. He has placed reliance upon the judgment rendered by the Apex Court in the case of Sunil Mehta and Anr. v. State of Gujarat and Anr., (2013) 9 SCC 209.

The question involved in the present petition is as to whether the charge can be framed without recording evidence under Section 244 (1) Cr.P.C. is not res integra and stands decided by the Apex Court in the case of Sunil Mehta (supra).

Learned Magistrate has not recorded any evidence as contemplated under Section 244 (1) Cr.P.C. and has proceeded to frame the charge as contemplated under Section 246 (1) Cr.P.C.

The question is as to when the accused persons will get opportunity to cross-examine the witness if they put their appearance under Section 246 Cr.P.C. without recording any evidence as contemplated under Section 244 (1) Cr.P.C. In this regard, the Apex Court while considering the similar question held as under:-

In paragraphs 11 and 12 of the case of Sunil Mehta (supra), it was held as under:-

"11. A simple reading of the above 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 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."

In paragraph-17 of the case of Sunil Mehta (supra), it was held as under:-

"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 crossexamining 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."