P. Ugender Rao and Others Vs J. Sampoorna and Others

@JUDGMENTTAG-ORDER

1. This is a petition filed under S. 482, Cr.P.C. to quash the charges framed against the petitioners-accused.

2. The complaint in these quash proceedings is that the Magistrate, before whom the 1st respondent complainant filed the complaint against the petitioners, has without recording any evidence - though not the entire evidence - framed charges against the petitioners and others under different heads, thereby denying them opportunity of being considered for discharge in terms of S. 245 of the Code of Criminal Procedure and therefore the charges are liable to be quashed.

3. To appreciate the above submission of the learned counsel, Shri Veerabhadra Rao, it is necessary to advert to certain provisions in the Code that have bearing on the present matter. Whenever a complaint is presented before a Magistrate, S. 220, Cr.P.C. obligates the Magistrate to examine the complainant on oath beside the witnesses, if any. After such an examination of the complainant and the witnesses, if any, and on consideration of the statements recorded so, in case the Magistrate is of opinion that there was no ground to proceed ahead with the complaint, shall dismiss the complaint under S. 203, Cr.P.C. after recording his reasons therefor. In case the Magistrate is of the opinion that there is sufficient ground for proceeding ahead with the complaint, he shall issue summons or warrant as the case may be. In the instant case, it is not in dispute the Magistrate had issued process for appearance of the accused under S. 204, Cr.P.C. and in response there to the accused-petitioners also appeared before him. Further this is a complaint instituted by a private party, i.e. the respondent, and the case is also one triable under criminal procedure. The procedure in such cases is laid under the Chap. XIX-B (trial of warrant cases instituted otherwise than on police report). Chapter XIX-B starts with S. 244, Cr.P.C. The section reads thus :

"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) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

Therefore, as per S. 244, Cr.P.C. on the appearance of the accused the Magistrate shall hear the prosecution and take all such evidence as may be adduced. The contention of Mr. Veerabhadra Rao is that the Magistrate in this case has not recorded any, muchless the entire, evidence, had the Magistrate recorded at least some evidence, the counsel submitted, the accused petitioners would have had an opportunity of being considered for discharge under S. 245, Cr.P.C. Section 245, Cr.P.C. reads :

"245. When accused shall be discharged :

(1) If upon, taking all the evidence referred to in S. 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(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."

(Stress is mine)

4. As seen S. 245, Cr.P.C. contemplates discharge of the accused at two stages, viz. (i) after recording of all the evidence referred to in S. 244 and (ii) at any previous stage of the case. It is S. 246, Cr.P.C. that provides procedure in cases where the accused is not discharged. It runs as under :

"246. Procedure where accused is not discharged :

(i) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to any and which, in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused."

Thus, we again come across the phrase ''at any previous stage of the case'' in S. 246(1). The phrase, as such was the subject-matter of interpretation by this Court in Solomon v. Luke (1963 1 An WR 173 : (1963 (1) Cri LJ 347), Referring to the phrase ''at any previous stage of the case occurring in Sections 253(2) and 254 of the old Code (corresponding to Sections 245(2) and 246 of the present Code), Justice Sharfuddin Ahmed held (at pp. 348, 349 of Cri LJ) :

"Now, S. 253(1) provides for taking all the evidence referred to in S. 252 and the order of discharge has to follow in the event the Magistrate finds that no case against the accused has been made out. ''Previous stage'' in this context would any stage before the recording of the entire evidence. To my mind, sub-section (2) empowers the Magistrate, to discharge the accused if he finds the charge to be groundless on recording a few witnesses or even on examination of the complainant. The restriction imposed in sub-section (1) has been relaxed as the Magistrate has been empowered to act under sub-section (2) if before completing the evidence he finds the charge to be groundless. It does not do away completely with the necessity of examining some witness or hearing the@ complainant to say the least before recording an order of discharge. The words ''previous stage'' also appears in S. 254, Cr.P.C. Therein the Magistrate has been empowered to frame a charge at any previous stage of the case if there is ground for presuming that the accused has committed an offence. The interpretation I have Placed on the words ''previous stage'' in S. 253(2), Cr.P.C., seems to be consistent with the use of the words and vesting of the power in the Magistrate to frame charge under S. 254, Cr.P.C."

Previous stage, thus, is a stage after recording some evidence. It is neither a stage before recording of any evidence at all nor a stage after recording of the entire evidence but is in between. The interpretation, thus, placed on the words ''at any previous stage of the case'' occurring in S. 246(1) also appears to be more in consonance with the order of sections numbered in the Code and also with the heading given to S. 246, viz. ''procedure where accused is not discharged.'' The very heading of the section in fact indicates that it would come into play only after the matter was examined in the light of S. 245, Cr.P.C. and the accused was not discharged thereunder. Therefore, it is incumbent upon, the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under S. 245, Cr.P.C. and it is only When he finds it otherwise he can have resort to S. 246, Cr.P.C. In otherwords, a valuable right for consideration or the case of the accused for purpose of discharge is conferred by S. 245, Cr.P.C. Accordingly, he cannot jump over S. 245, Cr.P.C. and frame charges under S. 246, Cr.P.C.

5. Again in Abdul Nabi Vs. Gulam Murthuza Khan and Another, this Court was to interpret the same phrase ''at any pervious stage'' occurring in S. 253(2) (corresponding to S. 245 of the present Code). While so interpreting this Court held (para 7) :

"It can only mean that after the stage of S. 203 is passed, but some evidence is recorded under S. 252 (corresponding to S. 244 of the present Code) and before all the evidence referred to in S. 252 is recorded the Magistrate can discharge the accused. He cannot dismiss the complaint and discharge the accused before recording any evidence whatsoever under S. 252, Cr.P.C. That will not only militate against the natural conclusion which must follow from the reading of Sections 203 and 294 but would be contrary to Sections 252 and 253, Cr.P.C. themselves."

The Magistrate, thus, cannot discharge the accused before recording any evidence whatsoever under S. 244 of the present Code. Exactly same is the observation of the Supreme Court in Cricket Association of Bengal and Others Vs. State of West Bengal and Others, while dealing with the phrase in question occurring in S. 253(2), Cr.P.C. of the old Code. In view of this case law, when even, for purposes of discharging the accused under S. 245, Cr.P.C. it is incumbent upon the Magistrate to record some evidence, though not the entire evidence under S. 244, Cr.P.C. the case for framing of charges under S. 246, Cr.P.C. is on afortiori one and accordingly unless and until the matter receives consideration under S. 245, Cr.P.C. the charges contemplated by S. 246, Cr.P.C. cannot be framed.

6. No doubt a decision of the Supreme Court in R.S. Nayak Vs. A.R. Antulay and Another, is brought to my notice wherein, though it is held that the stage for discharge under S. 245 is reached only after the evidence referred to in S. 244 has been taken it is observed the stage at which the Magistrate is required to consider the question of framing of charge is a preliminary one and the test of ''prima facie'' case has to be applied. As a matter of fact, the framing of charges was not challenged before the Supreme Court in the light of S. 246, Cr.P.C. Further, admittedly, in the case before the Supreme Court the charges were framed only after recording the evidence of as many as 57 witnesses, who were also cross-examined. These facts did not, obviously warrant an interpretation of the present phrase in question viz. ''at any previous stage the case'' occurring in S. 246(1), Cr.P.C. Therefore, this decision in the light of the earlier decision of the earlier decision of the Supreme Court in Cricket Association of Bengal and Others Vs. State of West Bengal and Others, cannot be understood as one laying down the interpretation of the phrase ''at any previous stage of the case'' occurring in S. 246, Cr.P.C.

7. For the aforementioned reasons, the charges framed against the accused in the instant case are not in accordance with law and therefore they are quashed. The Court below is, however, directed to proceed from the state ''on appearance of the accused'' in pursuance of the process issued in the light of the law herein before dealt with. The petition is accordingly allowed.

8. Petition allowed.