Heard Mr.Subedar Khan, learned counsel for the petitioners and Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
The petitioner has challenged the order dated 26th of April, 2011, passed by the learned Magistrate, rejecting the petitioner's application of cross examination of prosecution witness at the stage of proceeding under Section 244 of the Code of Criminal Procedure with the finding that the petitioner shall get the opportunity of cross examination under Section 246 of the Code of Criminal Procedure after framing of charge.
Section 244 of the Code of Criminal Procedure is extracted below:-
"244.Evidence for prosecution.-(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
As is evident from the aforesaid Section the Magistrate is under obligation to take all such evidences as may be produced in support of prosecution.
In light of the aforesaid provisions the question arises as to whether at this stage the accused has a right of cross examination of prosecution witnesses before framing of charge. In identical situation the Hon'ble Supreme Court has dealt with the controversy in the case of Ajoy Kumar Ghose versus State of Jharkhand and another, reported in (2009) 14 SCC 115, in which the Hon'ble Supreme Court held as under:-
"51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show by way of the cross-examination that there is no justifiable ground against him for facing the trial and for that purpose the prosecution would have to offer some evidence. While interpreting this section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored."
In the said case trial court straight way proceeded to frame the charge without giving opportunity to the accused to cross examine the witness. The Hon'ble Supreme Court in the light of the aforesaid observations quashed the same and remanded the matter to the trial court to give opportunity to the accused to cross examine the prosecution witness before framing of charges.
Further the Hon'ble Supreme Court in its recent judgment rendered in the case of Harinarayan G.Bajaj versus State of Maharashtra and others, reported in 2010 (70) ACC 955 by referring the aforesaid judgment has held that there would be a complete denial of the accused of an important right of cross examination of the witnesses before framing of charge. It would only then mean that such accused would remain a mute expectator till the framing of charge.
The facts of the present case are very much clear which establish that the learned Magistrate has rejected the application to cross examine the prosecution witness, therefore, in light of the aforesaid judgments of the Hon'ble Supreme Court, I am of the view that the order impugned dated 26th of April, 2011, passed in Case No.1238 of 2009, suffers from error and the same is hereby quashed with the direction to the court below to permit the petitioners to cross examine the prosecution witnesses and only then he shall proceed with the case in accordance with law.
In the aforesaid terms the petition is allowed.
Order Dated: 14.06.2011 Banswar