Through this petition, the petitioners have challenged the order of framing of charge dated 11.11.2014 passed by the Addl. Chief Judicial Magistrate, Court No.4, Aligarh in Case No.579 of 2012 (Yatindra Kumar Vs. Mohit Kumar Kankar and another) under Section 246 of the Code of Criminal Procedure (for short "Cr.P.C.") in a warrant case instituted other than police report.
The fact in short giving rise to the present dispute are that an application under Section 156 (3) Cr.P.C. was moved by opposite party no.2 on 30.11.2012, which was treated as complaint by the trial court vide order dated 19.12.2012. In the said complaint, opposite party no.2 alleged that he and petitioner no.1 were the friends and one and a half years ago, petitioner no.1 borrowed Rupees one lakh from him and again after six months, he (petitioner no.1) borrowed Rupees one lakh from him (opposite party no.2), but when petitioner no.1 failed to return the money in cash, he gave a cheque of Rupees two lakh dated 8.11.2012 but the cheque was dishonoured as the account was closed. On 25.11.2012, it is alleged that the petitioners came to the shop of the informant and they used abusive language and threatened him to kill. The application moved by opposite party no.2 under Section 156 (3) Cr.P.C. was treated as complaint and opposite party no.2 was examined under Section 200 Cr.P.C before the trial court and one Vishal Kumar was examined as witness under Section 202 Cr.P.C. Learned Addl. Chief Judicial Magistrate, Aligarh proceeded to summon the petitioners vide order dated 4.6.2013 on the basis of the aforesaid evidence. On 11.11.2014, the trial court proceeded to frame charge against the petitioners under Sections 323, 504, 506 & 379 IPC. It is this order, which is under challenge in this petition.
Submission of learned counsel for the petitioners is that without recording evidence as contemplated under Section 244 Cr.P.C., learned Magistrate has proceeded to frame the charge. Submission is that the charge could not have been framed without giving opportunity of cross-examination in respect of the evidence adduced under Section 244 (1) Cr.P.C. Learned counsel submits that non-examination of witnesses in the presence of the accused persons and further denying them right to cross-examine the witnesses will prejudice their case and the veracity of the allegations will not be established in a correct manner. Submission is that charge, which has been framed without recording evidence under Section 244 Cr.P.C. is wholly illegal and phrase occurring in Section 246 Cr.P.C. "or at any previous stage of the case" does not mean that any evidence which has been recorded at the time of summoning could be used for the purpose of framing of charge. Learned counsel submits that the evidence as required under Section 3 and Section 138 of the Indian Evidence Act is the proper evidence to be considered and a right to cross-examine cannot be foreclosed before framing the charge. If such right is foreclosed, then authenticity of the evidence cannot be judged by the trial court and the truth will not come to light. He has placed reliance upon the judgment rendered by the Apex Court in the case of Sunil Mehta and Anr. v. State of Gujarat and Anr., (2013) 9 SCC 209.
Learned AGA, on the other hand, has drawn the attention of the Court towards the phrase "or at any previous stage of the case" and has tried to justify the order of framing of charge on the reasoning that the evidence which has been recorded at the time of summoning can be used as evidence for framing of the charge and he has also submitted that as and when the charge is framed and the accused person adduces his evidence, he will have a right for cross-examination.
I have heard learned counsel for the parties and perused the record.
The question involved in the present petition is as to whether the charge can be framed without recording evidence under Section 244 (1) Cr.P.C. is not res integra and stands decided by the Apex Court in the case of Sunil Mehta (supra).
Learned Magistrate has not recorded any evidence as contemplated under Section 244 (1) Cr.P.C. and has proceeded to frame the charge as contemplated under Section 246 (1) Cr.P.C.
The question is as to when the accused persons will get opportunity to cross-examine the witness if they put their appearance under Section 246 Cr.P.C. without recording any evidence as contemplated under Section 244 (1) Cr.P.C. In this regard, the Apex Court while considering the similar question held as under:-
"7. It is difficult to appreciate the logic underlying the above observations. It appears that the High Court considered the deposition of this complainant and his witnesses recorded before the appearance of the accused Under Section 202 of the Code of Criminal Procedure to be 'evidence' for purposes of framing of charges against the Appellants. Not only that, the High Court by some involved process of reasoning held that the accused persons had an opportunity to crossexamine the witnesses when the said depositions were recorded. The High Court was, in our opinion, in error on both counts. We say so for reasons that are not far to seek. Chapter XV of the Code of Criminal Procedure, 1973 deals with complaints made to Magistrates. Section 200 which appears in the said Chapter inter alia provides that the Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and signed by the complainant and the witnesses, as also the Magistrate. An exception to that general rule is, however, made in terms of the proviso to Section 200 in cases where the complaint is made by a public servant acting or purporting to act in the discharge of his official duties, or where a Court has made the complaint, or the Magistrate makes over the case for enquiry or trial by another Magistrate Under Section 192 of the Code of Criminal Procedure."
In paragraph-7 of the case of Sunil Mehta (supra), the Apex Court while elaborating the difference between the evidence recorded at the summoning stage under Section 200 Cr.P.C. and the evidence to be recorded after the accused has put in appearance by the prosecution has further considered in paragraphs-11 & 12.
The nature of evidence to be adduced by the prosecution has been found to be the evidence which is acceptable under Section 3 of the Indian Evidence Act and under Section 138 of the Evidence Act. Section 138 of the Evidence Act refers to cross-examination whereas Section 3 of the Indian Evidence Act refers to the evidence recorded before the court. Section 138 of the Evidence Act casts duty upon the court to allow the adverse party to cross-examine if he so desires. Examination and cross-examination have to be held in the presence of the parties.
In paragraphs 11 and 12 of the case of Sunil Mehta (supra), it was held as under:-
"11. A simple reading of the above would show that the Magistrate is required to frame in writing a charge against the accused "when such evidence has been taken" and there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and adequately punish.
12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also Under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded Under Section 244. The expression "when such evidence has been taken" appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons Under Section 246 thereof without the same being produced Under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross-examine the witnesses produced by the prosecution."
The Apex Court further proceeded to hold that the evidence under Chapter XIX (B) has to be recorded in the presence of the accused and if a right of cross-examination was not given to him, then he would be no more than an idle spectator in the entire process. The object of the whole process is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him.
In paragraph-17 of the case of Sunil Mehta (supra), it was held as under:-
"17. Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence Under Section 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by crossexamining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. Section 245 of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in Section 244, he considers that no case against the accused has been made out which may warrant his conviction. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross-examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge Under Section 245 of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to cross-examine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot be jeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box."
The Apex Court proceeded to rely upon the case of Ajoy Kumar Ghose v. State of Jharkhand and Anr., (2009) 14 SCC 115 and also placed reliance upon a judgment rendered in the case of Harinarayan G. Bajaj v. State of Maharashtra and Ors., (2010) 11 SCC 520, wherein the similar view was expressed.
In the case of Ajoy Kumar Ghose (supra), it was held as under:-
"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) Code of Criminal Procedure, 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 Code of Criminal Procedure by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge."
The Apex Court in the case of Sunil Mehta (supra) has further held as under:-
"20. This Court further clarified that the expression "or at any previous stage of the case" appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused even before any evidence was led Under Section 24. This Court approved the decision of the High Court of Bombay in Sambhaji Nagu Koli v. State of Maharashtra, MANU/MH/0185/1978 : 1979 Cri. LJ 390 (Bom), where the High Court has explained the purport of the expression "at any previous stage of the case". The said expression, declared this Court, only meant that the Magistrate could frame a charge against the accused even before all the evidence which the prosecution proposed to adduce Under Section 244(1) was recorded and nothing more. This Court observed:
44. In Section 246 Code of Criminal Procedure also, the phraseology is "if, when such evidence has been taken", meaning thereby, a clear reference is made to Section 244 Code of Criminal Procedure. The Bombay High Court came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge, even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the Learned Single Judge in that matter relied on the ruling in Abdul Nabi v. Gulam Murthuza Khan MANU/AP/0074/1968: 1968 Cri LJ 303 (AP)."
In the case of Harinarayan G. Bajaj (supra), the principles laid down in the case of Ajoy Kumar Ghose (supra) were held to be the correct principles and it was laid down that an accused has right to cross-examine the witness produced by the prosecution before framing of charge against him and has a valuable right.
Paragraph-22 of the case of Sunil Mehta (supra) is as follows:-
"22. In Harinarayan G. Bajaj v. State of Maharashtra and Ors. MANU/SC/0006/2010 : (2010) 11 SCC 520, this Court reiterated the legal position stated in Ajoy Kumar Ghose (supra) and held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trial against him and that the denial of the right of cross-examination Under Section 244 would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him. The following passages are in this regard apposite:
18. This Court has already held that right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge Under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination Under Section 244, then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him.
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20. Therefore, the situation is clear that Under Section 244, Code of Criminal Procedure the accused has a right to cross-examine the witnesses and in the matter of Section 319, Code of Criminal Procedure when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be reheard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence.
23. In the light of what we have said above, we have no hesitation in holding that the High Court fell in palpable error in interfering with the order passed by the Revisional Court of Sessions Judge, Gandhi Nagar. The High Court was particularly in error in holding that the Appellant had an opportunity to cross-examine the witnesses or that he had not availed of the said opportunity when the witnesses were examined at the stage of proceedings under Chapter XV of the Code. The High Court, it is obvious, has failed to approach the issue from the correct perspective while passing the impugned order.
24. In the result we allow this appeal with costs Assessed at Rs.50,000/-, set aside the order passed by the High Court and restore that passed by the Sessions Judge. The costs shall be deposited by Respondent No. 2-company in the SCBA Lawyers' Welfare Fund within two weeks of the pronouncement of this order."
On a consideration of the above case laws and the principles laid down therein, the order impugned does not appear to be correct order and the trial court has proceeded to commit illegality in framing the charge without recording evidence under Section 244 (1) Cr.P.C. The order framing charge, therefore, cannot be sustained in law.
The petition is accordingly allowed. The order dated 11.11.2014 is hereby set aside and the matter is remitted to the trial court to proceed considering the principles laid down hereinabove.
December 19th, 2014 RBS/-