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2009 (3) TMI 1049 - SC - Indian LawsPower of Magistrate to frame the charge - discharge of the accused on the ground that the charge is groundless - Whether, even before any evidence is led u/s 244 CrPC, can the Magistrate straightaway proceed to frame a charge - HELD THAT:- It must be, at this stage, borne in mind that the word used in Section 246 CrPC is "evidence", so also, in Section 244 CrPC, the word used is "evidence". Therefore, ordinarily, the scheme of the Section 246 CrPC 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. We must note that while Section 245(2) CrPC speaks about the discharge of the accused on the ground that the charge is groundless, Section 246(1) operates in entirely different sphere. An order u/s 245(2) CrPC results in discharge of the accused, whereas, an order u/s 246 CrPC creates a situation for the accused to face a full-fledged trial. Therefore, the two Sections would have to be interpreted in slightly different manner, keeping in mind the different spheres, in which they operate. There is only one judgment of the Andhra Pradesh High Court in Verendra Vs. Aashraya Makers[1999 (4) TMI 661 - ANDHRA PRADESH HIGH COURT], which has taken the view that the Magistrate can frame the charge even without any evidence having been taken u/s 244 CrPC. We do not think that is a correct expression of law, as the right of the accused to cross-examine the witnesses at the stage of Section 244(1) CrPC would be completely lost, if the view is taken that even without the evidence, a charge can be framed u/s 246(1) CrPC. 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) CrPC. 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. Unfortunately, the earlier cases of the same Court, were brought to the notice of the Learned Judge. Again, the Learned Judge has not considered the true impact of the clause "at any previous stage of the case", which could only mean that even with a single witness, the Magistrate could proceed to frame the charge. It is clear that the opportunity to the accused to cross-examine the witnesses is lost, as the Trial Court has straightaway proceeded to frame the charge. In that view, we would have to quash the order, framing the charge. It is accordingly, quashed. The matter will now go back before the Trial Court, where the prosecution may offer the witnesses u/s 244(1) CrPC and the opportunity to cross-examine, would be offered to the accused. It is only thereafter, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The charge framed in this case is clearly premature, in view of the reasons given by us. The order framing the charge would, therefore, have to be set aside. We are not expressing anything on merits, particularly because we have directed the evidence of the prosecution to be led u/s 244 (1) CrPC. Any expressions on our part are likely to cause prejudice to the prosecution, as the case may be, accused. We are, therefore, leaving the matter at this. Accordingly, the appeal is disposed of with the direction that the matter shall now go back to the Trial Court and the Trial Court shall proceed to examine all the witnesses offered by the prosecution and it is only after the evidence of those witnesses is recorded, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The appeal, thus, succeeds partly.
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