In
Harinarayan G. Bajaj v. State of Maharashtra & Ors. (2010) 11
SCC520, 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.
Print Page
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.
xx xx xx 20. Therefore, the situation is clear that under Section 244,
Cr. P.C. the accused has a right to cross-examine the witnesses and in
the matter of Section 319, Cr.P.C. 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 re-heard and
then there would be such a right. Merely presenting such witnesses for
cross-examination would be of no consequence.
Sunil Mehta & ANR. Vs. State of Gujarat & ANR.
[Criminal Appeal No. 327 of 2013 arising out of S.L.P. (CRL.) No.374 of 2012]
T.S. THAKUR, J.
1. Leave granted.
2.
The short question that falls for our determination in this appeal is
whether depositions of the complainant and his witnesses recorded under
Chapter XV of the Code of Criminal Procedure, 1973 before cognizance is
taken by the Magistrate would constitute evidence for the Magistrate to
frame charges against the accused under Part B of Chapter XIX of the
said Code. The question arises in the following backdrop:
3. A
complaint alleging commission of offences punishable under Sections 406,
420 and 114 read with Section 34 of the Indian Penal Code, 1860 was
filed by respondent No.2-Company before the Chief Judicial Magistrate,
Gandhi Nagar, Gujarat. The Magistrate upon examination of the complaint
directed an enquiry in terms of Section 156(3) of the Cr.P.C. by the
jurisdictional police station. The report received from the police
suggested that the dispute between the parties was of a civil nature in
which criminal proceedings were out of place. The Chief Judicial
Magistrate was not, however, satisfied with the police enquiry and the
conclusion, and hence conducted an enquiry in terms of Section 202 of
the Cr.P.C. and issued process against the appellants for offences
punishable under Sections 406 read with 114 IPC.
4.
Aggrieved, the appellants unsuccessfully questioned the summoning order
before the High Court in Criminal Misc. Application No.10173 of 2010.
Inevitably the matter came up before the trial Court under Section 244
of the Cr.P.C. where the accused appeared pursuant to the summons issued
by the Court. Instead of adducing evidence in support of the
prosecution as mandated by Section 244, the complainant filed a pursis
(memo) stating that he did not wish to lead any additional evidence and
that the evidence submitted along with the complaint may be considered
as evidence for purposes of framing of the charge. The Magistrate took
the pursis on record and fixed the case for arguments on framing of
charges. The appellants' case is that written submissions filed by them
before the Magistrate raised a specific contention that no charge could
be framed against them as the complainant had not led any evidence in
terms of Section 244 of the Code and that the depositions recorded
before the Magistrate under Section 202 of the Cr.P.C. could not be
considered as evidence for the purposes of framing of charges. The
Magistrate, however, brushed aside that contention and framed charges
against the appellants under Sections 406 and 420 read with Section 34
of the IPC.
5.
Aggrieved by the order passed by the Magistrate, the appellants
preferred Criminal Revision Application No.56 of 2011 before the
Sessions Judge at Gandhi Nagar who allowed the same by his order dated
18th July,2011 primarily on the ground that non-compliance with the
provisions of Section 245(2) of the Cr.P.C. rendered the order passed by
the Magistrate unsustainable. The Sessions Judge accordingly remitted
the matter back to the trial Court with a direction to proceed in
accordance with the provisions of Sections 244 to 247 of the Code
keeping in view the decision of this Court in Ajoy Kumar Ghose v. State
of Jharkhand and Anr. (2009) 14SCC 115.
6.
Undeterred by the revisional order the respondent-company filed Special
Criminal Application No.1917 of 2011 before the High Court of Gujarat at
Ahmedabad which application has been allowed by the High Court in terms
of the order impugned before us. The High Court observed: "In the facts
of the case, it is not that the witnesses of the complainant have not
been examined, therefore, the evidence has been recorded. Therefore, at
that stage the opportunity was available with the accused as provided
under law to cross examine the witnesses, however, it is not availed of
by exercising the right of cross examination. It cannot be said that the
procedure, as required, is not followed. Therefore, the observation
made by the learned Sessions Judge relying on this judgment are
misconceived.
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 Cr.P.C. 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 cross-examine 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. Section200 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 200in 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 Cr.P.C.
8.
Section 201 deals with the procedure which a Magistrate not competent to
take cognizance of the case is required to follow. Section 202 empowers
the Magistrate to postpone the issue of process against the accused
either to inquire into the case himself or direct an investigation to be
made by a police officer for the purpose of deciding whether or not
there is sufficient ground for proceeding. Sub-section (2) of Section
202 empowers the Magistrate to take evidence of witnesses on oath in an
inquiry under sub-section (1) thereof. Section 203, which is the only
other provision appearing in Chapter XV, empowers the Magistrate to
dismiss the complaint if he is of the opinion that no sufficient ground
for proceeding with the same is made out.
9.
There is no gainsaying that a Magistrate while taking cognizance of an
offence under Section 200, whether such cognizance is on the basis of
the statement of the complainant and the witnesses present or on the
basis of an inquiry or investigation in terms of Section 202, is not
required to notify the accused to show cause why cognizance should not
be taken and process issued against him or to provide an opportunity to
him to cross-examine the complainant or his witnesses at that stage.
10.
In contra distinction, Chapter XIX of the Code regulates trial of
warrant cases by Magistrates. While Part A of that Chapter deals with
cases instituted on a police report, Part B deals with cases instituted
otherwise than on a police report. Section 244 that appears in Part B of
Chapter XIX requires the Magistrate to "proceed to hear the
prosecution" and "take all such evidence as may be produced in support
of the prosecution" once the accused appears or is brought before him.
Section 245 empowers the Magistrate to discharge the accused upon taking
all the evidence referred to in Section 244, if he considers that no
case against the accused has been made out which if un rebutted would
warrant his conviction. Sub-section (2) of Section 245 empowers the
Magistrate to discharge an accused even "at any previous stage" if for
reasons to be recorded by such Magistrate the charges are considered to
be "groundless". In cases where the accused is not discharged, the
Magistrate is required to follow the procedure under Section 246 of the
Code. That provision may at this stage be extracted: "246. Procedure
where accused is not discharged -
(1)
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 try and which, in his opinion,
could be adequately punished by him, he shall frame in writing a charge
against the accused.
(2)
The charge shall then be read and explained to the accused, and he shall
be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4)
If the accused refuses to plead, or does not plead or claims to be tried
or if the accused is not convicted under sub-section (3), he shall be
required to state, at the commencement of the next hearing of the case,
or, if the Magistrate for reasons to be recorded in writing so thinks
fit, forthwith, whether he wishes to cross-examine any, and, if so,
which, of the witnesses for the prosecution whose evidence has been
taken.
(5)
If he says he does so wish, the witnesses named by him shall be recalled
and, after cross-examination and re-examination (if any), they shall be
discharged.
(6)
The evidence of any remaining witnesses for the prosecution shall next
be taken, and after cross-examination and re- examination (if any), they
shall also be discharged.
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 tent amounts 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.
13.
Mr. U.U. Lalit, learned senior counsel appearing for the
respondent-complainant strenuously argued that Section 244 does not
envisage, leave alone provide for in specific terms, cross-examination
of witnesses produced by the prosecution by the accused. He submitted
that since the provision of Section 244 did not recognise any such right
of an accused before framing of charges, it did not make any difference
whether the Court was evaluating evidence adduced at the stage of
cognizance and summoning of the accused or that adduced after he had
appeared before the Magistrate under Section 244.
He
particularly drew our attention to sub-section (4) to Section 246 which
requires the Magistrate to ask the accused whether he wishes to
cross-examine any, and if so, which of the witnesses for the prosecution
whose evidence has been taken. It was contended by Mr. Lalit that the
provision of sub-section (4) to Section 246 provides for
cross-examination by the accused only after charges have been framed and
not before. There is, in our opinion, no merit in that contention which
needs to be noticed only to be rejected. We say so for reasons more
than one. In the first place, the expression "Magistrate shall proceed
to hear the prosecution and take all such evidence as may be produced in
support of the prosecution" appearing in Section 244 refers to evidence
within the meaning of Section 3 of the Indian Evidence Act, 1872.
Section 3 reads asunder: 3. Interpretation clause - In this Act the
following words and expressions are used in the following senses, unless
a contrary intention appears from the context:- xx xx xx
"Evidence".-"Evidence" means and includes-
1)
all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry, such
statements are called oral evidence;
2)
all documents including electronic records produced for the inspection
of the Court, such documents are called documentary evidence.
14.
"We may also refer to Chapter X of the Evidence Act which deals with
examination of witnesses. Section 137 appearing in that Chapter defines
the expressions examination-in-chief, cross and re-examination while
Section138 stipulates the order of examinations and reads as under:
"138. Order of examinations.- Witnesses shall be first examined-
in-chief, then (if the adverse party so desires) cross-examined, then
(if the party calling him so desires) re-examined. The examination and
cross-examination must relate to relevant facts, but the
cross-examination need not be confined to the facts to which the witness
testified on his examination- in-chief. Direction of re-examination.-
The re-examination shall be directed to the explanation of matters
referred to in cross- examination; and, if new matter is, by permission
of the Court, introduced in re-examination, the adverse party may
further cross-examine upon that matter.
15. "
It is trite that evidence within the meaning of the Evidence Act and so
also within the meaning of Section 244 of the Cr.P.C. is what is
recorded in the manner stipulated under Section 138 in the case of oral
evidence. Documentary evidence would similarly be evidence only if the
documents are proved in the manner recognised and provided for under the
Evidence Act unless of course a statutory provision makes the document
admissible as evidence without any formal proof thereof.
16.
Suffice it to say that evidence referred to in Sections 244, 245 and246
must, on a plain reading of the said provisions and the provisions of
the Evidence Act, be admissible only if the same is produced and, in the
case of documents, proved in accordance with the procedure established
under the Evidence Act which includes the rights of the parties against
whom this evidence is produced to cross-examine the witnesses concerned.
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
Section244 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 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. 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 bejeopardised leave alone taken away without
conceding to the accused the right to question those deposing against
him from the witness box.
18.
Thirdly, because the right of cross-examination granted to an accused
under Sections 244 to 246 even before framing of the charges does not,
in the least, cause any prejudice to the complainant or result in any
failure of justice, while denial of such a right is likely and indeed
bound to prejudice the accused in his defence. The fact that after the
Court has found a case justifying framing of charges against the
accused, the accused has a right to cross-examine the prosecution
witnesses under Section 246(4)does not necessarily mean that such a
right cannot be conceded to the accused before the charges are framed or
that the Parliament intended to take away any such right at the
pre-charge stage.
19.
We are supported in the view taken by us by the decision of this Court
in Ajoy Kumar Ghose (supra). That was a case where the trial Court had
framed charges against the accused without the prosecution having any
evidence whatsoever in terms of Section 244 of the Cr.P.C. This Court
held that the procedure adopted by the trial Court was not correct
because the language of Section 246(1) Cr.P.C. itself sufficiently
indicated that charges have to be framed against the accused on the
basis of some evidence offered by the complainant at the stage of
Section 244(1). This Court observed: "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) Cr.P.C., 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 Cr.P.C. by the prosecution, the Magistrate has to
consider the same, and if he is convinced, the Magistrate can frame the
charge.
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 1979 Cri
LJ390 (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 Cr.P.C. also, the phraseology
is "if, when such evidence has been taken", meaning thereby, a clear
reference is made to Section 244 Cr.P.C. 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 1968 Cri LJ 303 (AP).
21.
"More importantly, this Court recognised the right of cross-examination
as a salutary right to be exercised by the accused when witnesses are
offered by the prosecution at the stage of Section 244(1) of the Code
and observed: "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."
22.
In Harinarayan G. Bajaj v. State of Maharashtra & Ors. (2010) 11
SCC520, 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.
xx xx xx 20. Therefore, the situation is clear that under Section 244,
Cr. P.C. the accused has a right to cross-examine the witnesses and in
the matter of Section 319, Cr.P.C. 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 re-heard 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-companyin the SCBA Lawyers' Welfare Fund within two weeks of the
pronouncement of this order.
.............................J. (T.S. THAKUR)
.............................J. (SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi
February 20, 2013
No comments:
Post a Comment