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Showing contexts for: 246 criminal procedure code in Sri E X Anthony vs Mrs Maliakkal Perianchery Ansa on 13 July, 2018Matching Fragments
3. On recording of sworn statement of the complainant, process came to be issued to the petitioner and after recording the plea of the accused, respondent-
complainant got herself examined as P.W.1 on more than one occasion and was subjected to cross- examination. Two (2) witnesses were examined on behalf of complainant and they were also cross examined. After hearing the arguments before charge, learned Magistrate by order dated 28.09.2004 ordered for framing of charge against the petitioner-accused No.1 and accused No.2 for the offence punishable under Section 494 IPC. Said order came to be questioned by the petitioner herein before the Sessions Court, which challenge came to be negatived and it was confirmed by this Court on 25.11.2010 in Cr.P.No.3832/2005. On 30.07.2011 charge came to be framed against accused Nos. 1 and 2 and matter came to be listed for recording complainant's evidence and evidence in part came to be recorded on 24.07.2012 and adjourned to 15.09.2012. On 26.07.2013 petitioner-first accused filed an application under Section 246 Cr.P.C. contending interalia that after framing of charge accused-petitioner had pleaded not guilty and had also not proposed to cross-examine the complainant and her witnesses as provided under Section 246(5) Cr.P.C. and as such, next step which the learned Magistrate will have to take is to record the evidence of remaining witnesses of the complainant, if any and trial Court would not be empowered to record further evidence of the complainant. It was also contended that further examination-in-chief of complainant after framing of charge is contrary to the procedure contemplated or prescribed under Section 246(5) and 246(6) of Cr.P.C. On these grounds, petitioner-accused sought for a direction to the complainant to examine the remaining witnesses, if any and to reject the prayer of the complainant for her further examination-in-chief. This application came to be opposed by the complainant i.e., respondent herein by filing objections. Trial Court after considering rival contentions by impugned order dated 17.09.2016 dismissed the application filed by accused on the ground that matter was posted for recording of further examination-in-chief of P.W.1 on 26.07.2013 and adjourned from time-to-time to hear on the application filed under Section 246 Cr.P.C. by the accused and on account of non-prosecution, complaint had been dismissed on 18.01.2014, which order came to be set aside by the Fast Track Court on 14.10.2014 directing the Magistrate to proceed with the matter in accordance with law by concluding and holding complainant has a right to lead further evidence and also on the ground that complainant is master of her case and as such, it would not be proper for the Magistrate to direct the complainant to lead the evidence of her witnesses only.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-
examination (if any), they shall also be discharged.
10. Where the accused is not discharged and the Magistrate is of the opinion that there is a ground for presuming that accused has committed an offence triable under said Chapter, he has to frame in writing a charge against the accused as per Section 246(1) Cr.P.C. and said charge has to be read out and explained to the accused and accused would be called upon to answer as to whether he pleads guilty or has any defence to make as indicated under Section 246(2) Cr.P.C. In the event of accused pleading guilty, Section 246(3) Cr.P.C. mandates that Magistrate should record such plea and in his discretion convict the accused thereon. The plea must be recorded in the accused's own words unless there are reasons for dispensing with that safeguard.
11. A bare reading of sub-section (4) of Section 246 Cr.P.C. would disclose that Magistrate after framing the charge and on recording plea of the accused not pleading guilty or pleads to be tried or refused to plead or accused is not convicted under sub-section (3), extends an opportunity to the accused to further cross- examine the witnesses, who have already been examined for the prosecution. In other words, after recording the plea of the accused under sub-section (4) of Section 246 Cr.P.C. the Magistrate is required to state at the commencement of next hearing of the case as to whether accused wishes to cross-examine any, and, if so, which of the witnesses already examined for the prosecution whose evidence has been taken and this step is mandatory. The scheme of sub-section (4) of Section 246 Cr.P.C. would clearly indicate that law provides the accused an opportunity to think over the matter in the light of evidence that has been already adduced before the Court and to inform the Court whether he (accused) wishes to cross-examine the witnesses any, and if so the witnesses for the prosecution whose evidence has been taken. This opportunity is statutorily extended to the accused in the light of express words employed in sub-section (4) of Section 246 Cr.P.C. namely, 'at the commencement of next hearing of the case', so that accused may not be compelled to take a decision on the spot after framing of charges. In other words, expression referred to herein above would indicate that sufficient time should be given to the accused to consider, apply his mind, delve upon the depositions of prosecution witnesses and then form an opinion as to whether accused wishes to cross- examine any of the prosecution witnesses after framing of charge. In the event of accused intends to cross- examine the witnesses whose evidence has already been tendered on behalf of prosecution to be recalled and after cross-examination and re-examination, if any, such witnesses are to be discharged as per sub-section (5) of Section 246 Cr.P.C. and it is a positive or mandatory duty cast upon the Magistrate.
12. There may be instances where the complainant along with complaint, a list of witnesses would have been filed and they might have been examined at the first instance namely, at the time of Magistrate taking cognizance of offence or their evidence recorded under Section 244(1) Cr.P.C. when accused appears or brought before the Magistrate or in some instances, the complainant may propose to examine additional witnesses. It is in this background, expression "remaining witnesses" occurring in sub- section (6) of Section 246 Cr.P.C. would acquire significance. A bare reading of sub-section (6) of Section 246 Cr.P.C. would disclose that expression 'remaining witnesses' is not limited to those witnesses referred to in Section 244 Cr.P.C. alone and it would include any other witnesses, who according to the prosecution may be able to support its case, though they might have not been summoned and named before framing of the charge. There may be instances where in the witness list furnished along with the complaint, some of the witnesses who have been named in the list had not been examined when evidence on behalf of prosecution/complainant came to be recorded under Section 244 Cr.P.C. and thereafter, complainant/prosecution may be of the view that evidence of those persons whose name/s is already found in the list is also required to be tendered since they would be able to support the case of the complainant/prosecution and as such, complainant/prosecution intends to examine such of the witnesses whose names are already appearing in the list. Even such witnesses would fall within the four corners of expression 'remaining witnesses'. Further, complainant may also intend to examine witnesses whose names are not found in the list already furnished along with the complaint by submitting an additional list or supplementary list of witnesses. Thus, sub- section (6) of Section 246 Cr.P.C. enable the complainant/prosecution to furnish additional list of witnesses for being examined on behalf of prosecution to prove the guilt of the accused.