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21. 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.

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.

23. Before we approach this question, we must note that while Section 245(2) Cr.P.C. speaks about the discharge of the accused on the ground that the charge is groundless, Section 246(1) operates in entirely different sphere. An order under Section 245(2) Cr.P.C. results in discharge of the accused, whereas, an order under Section 246 Cr.P.C. creates a situation for the accused to face a full-fledged trial. Therefore, the two Sections would have to be interpreted in slightly different manner, keeping in mind the different spheres, in which they operate. The words "or at any previous stage of the case" appearing in Section 246 Cr.P.C. would include Section 245 also, where the accused has not been discharged under Section 245 Cr.P.C., while the similar term in Section 246(2) can include the stage even before any evidence is recorded. It cannot, therefore, be held that the words "at any previous stage of the case" as appearing in Section 245 Cr.P.C., would have to be given the same meaning when those words appear in Section 246 Cr.P.C.

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.