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Section 246 Cr.P.C., reads:-

"(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......etc., etc."

The learned Senior Counsel Shri Venkataranga Iyengar mainly relied on the phraseology "or at any previous stage of the case" used in Section 246 Cr.P.C. On the basis of this phrase he constructed an argument that it was not necessary that the complainant should lead or should have led evidence in order to enable the Court to frame a charge. According to him, the said words mean that the Magistrate was at liberty to frame a charge after recording any evidence mentioned in Sections 244 and 245 Cr.P.C. He relied for that purpose in re UMAYYATHANTAGATH PUTHEN VEETIL KUNHI KADIR, AIR 1922 Madras 126; PRITHVI NATH v. B.C. KAUL, 1975 Crl.L.J. 216; SANTIRAM MANDAL v. EMPEROR, AIR 1929 Calcutta 229; KEWAL RAM v. EMPEROR, AIR 1935 Patna 515 and RATILAL BHANJI MITHANI v. STATE OF MAHARASHTRA & OTHERS, AIR 1979 SC 94. The said decision of the Supreme Court is not an authority for the proposition now involved in this case. The facts involved in that case are altogether different.

The said decision of the Supreme Court is a clear authority for the proposition that when the Court considers the question as to whether the materials on record are sufficient or not to frame a charge, it must have before it legal evidence contemplated under Sections 244 and 245 Cr.P.C. The words "at any previous stage of the case" found in Section 246 Cr.P.C. only mean that the complainants need not lead all the evidence proposed by them to lead but the Court, even before the complainants adduce all the materials cited by them in the complaint, at any stage before recording all such evidence, may proceed to frame a charge, if the evidence already on record is sufficient to sustain the charge. It does not mean that even before recording any evidence on behalf of the complainants the Court can frame a charge only on the sworn statement of the witnesses, if at all examined by the complainants, before ordering issue of process.

10. Section 244 Cr.P.C. makes it absolutely clear that the complainants should lead evidence after the accused appears or is brought before the Magistrate. Section 245 speaks that after such evidence as referred to in Section 244 is lead, the Court may, if it finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, discharge him. Therefore, it is only after recording the evidence of the complainant and his witnesses, if any, after the accused appears or is brought before the Court as laid down in Section 244 Cr.P.C., the Court may proceed to frame a charge or discharge the accused. If the complainant does not choose to lead any evidence before charge, after the accused appears or is brought before the Court, no case which, if unrebutted, would warrant a conviction can be said to have been made out. Therefore, if the complainant does not choose to lead any evidence after the accused appears or is brought before the Court, then it is a clear case for discharge. The learned Counsel Shri Venkataranga Iyengar, submitted that the sworn statement of the complainant would come within the ambit of Sections 244, 245 and 246 Cr.P.C. and it would be evidence and so if the Court proposes to rely on such sworn statement for the purpose of framing a charge it cannot be said to be wrong.

That the sworn statement of the complainant before the issue of process is not evidence within the meaning of Sections 244, 245, and 246 Cr.P.C., does not require any further authority on the point.

11. The learned Counsel Shri Venkataranga Iyengar referred to Section 244 Cr.P.C and urged that the Magistrate may only hear the prosecution and proceed to dispose of the case. The words "to hear the prosecution" cannot be read disjunctively from the subsequent words, namely, "and take all such evidence as maybe produced in support of the prosecution." Therefore, the decision rendered in AIR 1922 MADRAS, 126 (supra)' on this point runs contrary to the words used in Section 244 Cr.P.C. and appears to have been not approved in the subsequent decision (SUPRA),