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3. By the aforesaid impugned order, the learned Addl. Chief Judicial Magistrate has rejected the application of the applicant which was filed for permitting the applicant for examination-in-chief.

4. Briefly stated facts of the present case are that the examination-in-chief of the applicant under Section 244 Cr.P.C. was recorded on 07.05.2016. Thereafter, charges were framed under Sections 323, 406, 420 read with 120-B IPC and on the same day matter was fixed for recording the statement under Section 246 Cr.P.C. Thereafter, 17.05.2016, 21.05.2016 were fixed. Now at this stage on 28.05.2016 the applicant has moved the aforesaid application presenting him for examination-in-chief. The learned court below has considered the submissions of learned counsel for the applicant and the provisions of Section 244 and 246 Cr.P.C. and came to the conclusion that there is no provision under Section 246 Cr.P.C. for again permitting the applicant for examination-in-chief. Consequently, the application was rejected. Aggrieved with this order dated 31.01.2017 the applicant has filed the present application.

40. 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.

15. In warrant trial instituted otherwise than the police report, the complainant gets two opportunity to lead evidence, firstly, before charges framed and secondly after the charges. Ordinarily when the evidence is led 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. The phrase "if, when such evidence has been taken" used in section 246 Cr.P.C. clearly refers to the evidence under Section 244 Cr.P.C. Thereafter, the prosecution again have an opportunity to lead evidence of any remaining witnesses under Section 246(6) Cr.P.C.

16. The applicant/ complainant herein has availed the opportunity to lead evidence under Section 244 Cr.P.C. on 07.05.2016 and thereafter, the charges were framed and on the same day, the matter was put up for statement under Section 246 Cr.P.C. at 2.15 p.m. Thereafter 17.05.2016 and 21.05.2016 were fixed in the matter. On 28.05.2016 the applicant/ complainant moved an application to present himself again for examination-in-chief. Section 246(6) Cr.P.C. permits a complainant to produce the evidence of any remaining witness. This section 246 does not permit the applicant/ complainant to present himself again for examination-in-chief as has been sought by the applicant herein vide his application dated 28.05.2016.