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Sections 207 and 208 Cr.P.C. respectively make it mandatory for the Magistrate to complete the formalities before Committing the case to the Sessions Court. There are two different provisions for framing of charges by a Magistrate, i.e. under Section 240 Cr.P.C. when the case is based upon police report and Section 246 Cr.P.C. when the case is founded on a complaint.

A careful analysis of Section 244 Cr.P.C. makes it clear that Magistrate has to hear prosecution and take all evidence as may be produced after appearance of accused. It nowhere lays down or suggests that this exercise is only confined to the offences which are triable by Magistrate 9 of 17 CRR-993-2011 (O&M) -10- only. It needs to be noticed that the expression 'Prosecution' as appearing in Section 244 Cr.P.C. relates to complainant and therefore, it is obligatory upon the complainant to bring all his evidence in support of the complaint. At this stage, the accused also gets a valuable right to cross-examine the prosecution witnesses. It is this evidence which is considered by the Magistrate either at the stage of discharging the accused under Section 245 Cr.P.C. or framing of charges under Section 246 Cr.P.C., as the case may be. But, where the offences are triable by Sessions Court, the case has to be Committed after complying with Section 208 Cr.P.C.

During the course of argument, learned counsel was unable to point out as to why Section 246 Cr.P.C. was inserted separately, if according to him, Section 244 Cr.P.C. relates to the trial of offences by the Magistrate alone. The requirement of Section 246 Cr.P.C. could have been added in the said Section, i.e. Section 244 Cr.P.C. It is also not disputed by Mr. Ankur Mittal, Advocate that the procedure for trial before the Court of Sessions is common whereas, before the Magistrate, it is different considering the two modes of the prosecution.

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21. However, the real difficulty arises in the Trial Court's proceeding to frame the charge under Section 246 Criminal Procedure Code. 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 Criminal Procedure Code. 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) Criminal Procedure Code, the Trial Court straightaway proceeded to frame the charge.

13 of 17 CRR-993-2011 (O&M) -14- 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) Criminal Procedure Code, 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 Criminal Procedure Code 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) Criminal Procedure Code 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 Criminal Procedure Code, 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 Criminal Procedure Code is "evidence", so also, in Section 244 Criminal Procedure Code, 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."