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ANALYSIS OF THE PROVISIONS OF SECTION 246 OF Cr.P.C.

8. For making an appropriate analysis of the provisions carried in Section 246 of Cr.P.C., it is deemed imperative to extract them. Therefore, the provisions of Section 246 of Cr.P.C., become extracted hereinafter.

"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 EFFECT OF ABOVE NON-COMPLIANCE OF THE PROVISIONS OF SECTION 246(4) OF Cr.P.C., BY THE ACCUSED AT THE POST CHARGE STAGE

12. Be that as it may, the effect of compliance to the mandate carried in sub-Section 4 of Section 246 of Cr.P.C., rather being not meted, hence post the drawing of charges against the accused, and, to which they pleaded not guilty, and, claimed trial, yet does not have any fatal consequence, upon, the impugned verdict of acquittal. The reason for drawing the above conclusion, flows from the statutory requirement as carried in sub-Section 4 of Section 246 of Cr.P.C., 6 of 11 becoming required to be complied with rather by the accused, and, that too through a written expression being made immediately post the order framing charges against the accused. However, post the drawing of charges against the accused they did not express before the learned trial Magistrate concerned, hence their wish to cross-examine the preliminary evidence, as became adduced at the pre-charge stage nor also any objective consideration was thereons made by the learned Magistrate concerned, qua the above expressed wish of the accused becoming for recorded reasons rather forthwith allowed. Contrarily, in the order framing charges, as became drawn on 22.01.2015, the learned Magistrate concerned, rather ordered the complainant to adduce evidence in support of the charge(s). Though, the salutary purpose behind the engraftment of sub-Section 4 in Section 246 of Cr.P.C., is to ensure speedy and expeditious trial of the complaint, as the testifications of the complainant's witnesses, as became recorded at the pre-charge stage, are but deemed or do obviously embody only their respective examinations-in-chief. Thus, at the above stage the apposite completest testimony(ies) as also comprised in their respective cross- examinations hence are not then recorded. Therefore, since at the post charge stage the said preliminary evidence as becomes adduced at the pre-charge stage, does not enclose the completest testimony(ies) of the witnesses concerned, rather the pre-charge stage recorded testifications of the complainant witnesses, thus only embody their respective examinations-in-chief, and but for gauging their respective truth, rather requires that each of the complainant's witnesses are necessarily put to cross-examination(s). The cross-examination(s) of the preliminary evidence, is but obviously to test the veracity of the complainant's witnesses who have at the pre-charge stage, echoed in their respective examinations-in-chief, an incriminatory role against the accused. Importantly, 7 of 11 also in other words, unless the complainant asks for adducing post charge stage evidence, in addition to the evidence adduced at the pre-charge stage, the veracity of the pre-charge evidence, is required to be tested only through cross- examinations being made upon the witnesses concerned, but only with the leave of the Court, being granted within the ambit of sub-Section 4 of Section 246 of Cr.P.C.

PURPOSE OF SUB-SECTION 4 OF SECTION 246 OF Cr.P.C.

13. If the purpose of sub-Section 4 of Section 246 of Cr.P.C., is to ensure a speedy trial of the complaint case, yet an incisive reading thereof, makes it abundantly clear, that the statutory privilege (supra) is but reserved exclusively qua the accused. Resultantly, for want of derivings by the accused of the benefits of sub-Section 4 of Section 246 of Cr.P.C., rather the complainant cannot draw any leverage. If so, the non-availment of sub-Section 4 of Section 246 of Cr.P.C., by the accused, did not yet relieve the complainant, to adduce evidence in support of the charges as became drawn against the accused, through an order made on 22.01.2015. However, the complainant did not lead evidence to support the charges despite an opportunity being granted for the afore purpose. If he had done so, then only an opportunity would hence have arisen qua the accused cross-examining the post charge adduced evidence by the complainant. Necessarily, since the complainant did not adduce the post charge evidence. Thus he obviously also forbade the accused to impeach the credit of the witnesses who but never stepped into the witness box, post the drawings of charge(s) against the accused. Moreover also the want of adduction of evidence by the complainant, and that too post, the drawing of charges against the accused, does work adversely qua the complainant, and, not against the accused. Moreover, when at the post charge stage, no express wish was conveyed by the 8 of 11 accused to the learned Magistrate concerned, to re-call the preliminary evidence for hence cross-examinations being made upon the same. Thus, when the above statutory privilege became not availed, resultantly it is deemed to have been waived or abandoned by the accused. The reason being that the pre-charge adduced preliminary evidence, became the foundation for the framing of charges against the accused, but did not become the foundation for the drawings of any valid verdict of conviction against the accused, in respect of such drawn charges, as become anchored upon preliminary evidence. Emphasizingly when the veracity of the pre-charge adduced preliminary evidence, as in the instant case, remained rather untested through cross-examinations being not made, given the non-availment by the accused qua the statutory privilege cast, in sub- Section 4 of Section 246 of Cr.P.C., nor obviously when the complainant's witnesses who stepped into the witness box at the pre-charge stage, never stepped into the witness box at the post charge stage, for theirs making themselves available for theirs becoming cross-examined by the accused. Resultantly, it was but for the complainant to support the charges, not through earlier adduced preliminary evidence, but through his adducing post charge evidence.

CONCLUSION

14. As above stated when the Magistrate concerned, enters upon a trial of a complaint case, he becomes enjoined to ensure that the complainant adduces preliminary evidence to support the makings of a valid summoning upon the accused. Therefore, the preliminary evidence alike a report under Section 173 of Cr.P.C., as becomes drawn by the investigating officer concerned, in respect of a police case, rather becomes the sheet anchor hence for valid assumptions of jurisdictions, besides for valid assumptions of cognizances by 9 of 11 the jurisdictionally empowered Court, besides becomes the bedrock for framing charges against the accused. Conspicuously, it does not become the foundation for the drawing either a verdict of conviction or a verdict of acquittal, unless the veracity of the pre-charge adduced preliminary evidence, becomes tested through the accused availing the mandate of sub-Section 4 of Section 246 of Cr.P.C. However, for reasons (supra), since the above mandate of sub-Section 4 of Section 246 of Cr.P.C., became abandoned or waived by the accused, but has a natural corollary, that when the relevant benefit is statutorily conferred only upon the accused. Therefore, it was amenable for being waived only by the accused. Thus when it has been waived by the accused, resultantly the complainant was required to adduce post charge evidence to support the charge(s). Since he has not done so despite the granting of an opportunity. Resultantly, the closure of the complainant's evidence besides the verdict of acquittal becomes well merited.