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"at any previous stage of the case", clearly bring out this position. It will be better to see what is that "previous stage".

18. 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. 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. 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. 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. 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. 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.

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. 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.

24. The Bombay High Court, in a decision in Sambhaji Nagu Vs. State of Maharashtra reported in 1979 Criminal Law Journal 390, has considered the matter. While interpreting the words "at any previous stage" under Section 246(1) Cr.P.C., the Learned Single Judge in that case, came to the conclusion that the phraseology only suggested that the Magistrate can frame charge, even before "all" the evidence is completed under Section 244 Cr.P.C. Section 244 Cr.P.C. specifically mandates that as soon as the accused appears or is brought before the Court, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Further, Section 245 Cr.P.C. also mandates that if upon taking all the evidence referred to in Section 244 Cr.P.C., 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. In Section 246 Cr.P.C. also, the phraseology is "if, when such evidence has been taken", meaning thereby, a clear reference is made to Section 244 Cr.P.C. The Bombay High Court came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge, even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the Learned Single Judge in that matter relied on the ruling in Abdul Nabi Vs. Gulam Murthuza reported in 1968 Criminal Law Journal 303. The similar view seems to have been taken in T.K. Appu Nair Vs. Earnest reported in AIR 1967 Madras 262 and in re. M. Srihari Rao reported in AIR 1964 Andhra Pradesh 226. The similar view has been expressed in P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal 762, where it has been expressed that previous stage is a stage, after recording some evidence. It is neither a stage before recording any evidence at all nor a stage after recording the entire evidence, but is in between. The interpretation, thus, placed on words "at any previous stage of the case", occurring in Section 246(1) Cr.P.C. also appears to be more in consonance with the order of the Sections numbered in the Code and also with the heading given to Section 246 Cr.P.C., viz., "Procedure where accused is not discharged". The very heading of the Section even indicates that it would come into play only after the matter is examined in the light of Section 245 Cr.P.C. and the accused is not discharged thereunder. Therefore, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under Section 245 Cr.P.C. and it is only when he finds it otherwise, he could have resort to Section 246 Cr.P.C.

26. There is only one judgment of the Andhra Pradesh High Court in Verendra Vs. Aashraya Makers reported in 1999 Criminal Law Journal 4206, which has taken the view that the Magistrate can frame the charge even without any evidence having been taken under Section 244 Cr.P.C. We do not think that is a correct expression of law, as the right of the accused to cross-examine the witnesses at the stage of Section 244(1) Cr.P.C. would be completely lost, if the view is taken that even without the evidence, a charge can be framed under Section 246(1) Cr.P.C. 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) Cr.P.C. 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. Unfortunately, the earlier cases of the same Court, which we have referred to above, were brought to the notice of the Learned Judge. Again, the Learned Judge has not considered the true impact of the clause "at any previous stage of the case", which could only mean that even with a single witness, the Magistrate could proceed to frame the charge.