TMI Blog2009 (3) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 177, 181, 182, 192, 196, 199, 209, 466, 468, 471 and 474 of the Indian Penal Code (hereinafter referred to as `IPC' for short), before the Chief Judicial Magistrate, Ranchi. These charges are based on an official complaint filed by the Registrar General, Patna High Court against these accused persons including the present appellant, who, at the relevant time was Director, Indian School of Mines, Dhanbad. In the said complaint it is, inter alia, contended: (i) That one Shri M.S. Chhabra, who was the Assistant Professor in the Indian School of Mines, Dhanbad, was proceeded against for misconduct and accordingly punishment of compulsory retirement was imposed on him. (ii) Indian School of Mines, Dhanbad, a registered Society, is a deemed university governed by the Rules Regulations and bye-laws of the School. In the matter of classification and method of appointment and terms and conditions of service for academic staff, Rules are framed with the approval of the Central Government. Rule 4 of the Rules Regulations prescribes the constitution of General Council. The classification and method of appointment are governed by the bye-laws. Selection to the post of Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cieties Registration Act. (iv) That the counter affidavit had been filed to this writ petition by Shri M. Ramakrisha, S/o Shri M. Subbarao on behalf of the respondents in his alleged capacity of Acting Registrar. In para 37 of the said counter affidavit, the contention made by Shri M.S. Chhabra in paras 69 to 77 of the writ petition were denied and it was asserted that in view of the subsequent amendments made in the Rules Regulations of the School, which were ratified by the Inspector General of Registration, the necessary amendments were made in the Rules Regulations of the School and that was prior to the sitting of the General Council meeting dated 11.06.1992. A certificate to that effect was obtained from the office of the Inspector General of Registration, Patna, Bihar and the letter issued by the Inspector General, Registration was enclosed as Annexure-A to the counter affidavit. The said letter dated 09.06.1992 was allegedly issued by one Shri Vikas Prasad, Assistant Inspector General of Registration, Patna, Bihar. (v) That Shri M. Ramakrishna had, in his counter affidavit stated that the contents of para 37, which have been quoted above, were based on information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fabricated and forged letter in the Court of law with active connivance and conspiracy on their part. 4. Cognizance was taken on the basis of this complaint by an order dated 20.08.1999 and summons were ordered to be issued by the CJM, Ranchi. 5. There are some events which took place before the cognizance was taken, for example, on 06.03.1998, Shri M.S. Chhabra had handed over an application which was purportedly an application under Section 340 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for short) The High Court accepted that application on the same day and directed that a notice be issued to the respondents including the present appellant by the Registry for their appearance before the Court on 02.04.1998. This order was challenged by the Indian School of Mines and some other persons including the present appellant by way of a Special Leave Petition in this Court whereupon this Court disposed it of as being premature. It was observed that the petitioners, instead of giving reply to the notice in the High Court, had rushed through a Special Leave Petition and, therefore, this Court did not find it a fit case to interfere. 6. The appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge application and the order framing charge, before the High Court of Jharkhand at Ranchi which was dismissed on 03/07.07.2006, necessitating the filing of present Special Leave Petition. 9. In the impugned order, the High court quoted the judgment passed by the Patna High Court dated 16.07.1999 and observed that the letter dated 09.06.1992 was found to be forged and fabricated in the inquiry instituted by the Department and, therefore, offence under Section 195(1) (b) Cr.P.C. appeared to have been committed in respect of that letter. The High Court came to the conclusion that since the Division Bench of the Patna High Court, by its earlier elaborate judgment, had clearly found, on the basis of evidence on record, that the appellant was well aware of filing of such counter affidavit in which a forged letter was used before the Court on behalf of Indian School of Mines, it could not be said that the allegations against the appellant were based on mere suspicion. It further recorded a finding that documentary evidence was sufficient to frame charge against the appellant. It is this judgment of the Patna High Court, which has fallen for our consideration. 10. Shri Ranji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t committed in respect of the document dated 09.06.1992 when the letter was custodia legis. Learned counsel also invited our attention to the earlier order passed by the High Court wherein three other accused were discharged, who were similarly circumstanced as the appellant herein. 11. As against this, it was urged on behalf of respondent No.2 that the High Court was correct in rejecting the petition of the petitioner/appellant and in refusing discharge from the prosecution. Learned counsel urged that there was enough material with the complainant and it was clear that the appellant was aware of the aforementioned forgery and he was party to the conspiracy of using forged letter. 12. There can be no doubt that in the present case, this Court had specifically granted liberty to the appellant to file a discharge application. We have quoted that order of this Court in para 7 of this judgment. Accordingly, the appellant filed a discharge application in the Trial Court, where the trial was pending, contending therein that there was no material available even for framing the charge. It was specifically pleaded in the said application that the said discharge was being sought for un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless. 15. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being any examination of complainant or his witnesses on oath. As has already been stated earlier, the Magistrate simply issued the process under Section 204 Cr.P.C. When the accused appeared in pursuance to the summons sent to him, under Section 244 Cr.P.C., the defence came out with an application. There can be no difficulty that the discharge application was perfectly in order at that stage. Therefore, what was available before the Magistrate besides this discharge application was, a bare complaint. There was absolutely nothing beyond the complaint available, for the Magistrate to consider the framing of charge. The Magistrate could, undoubtedly, have proceeded under Section 245(2) Cr.P.C., on the basis of discharge application and discharge him. However, he would have been required to give reasons for discharging at that stage, when no evidence or no material, whatsoever, was available with him, excepting a bare complaint. 20. The Magistrate, in this case, not only dismissed the application, but also proceeded to frame the charge, which order was also in challenge in the Writ Petition filed before the Division Bench. We have now to see as to whether the Magistrate was justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trial Court has also not made any mistake in issuing the process, if the Trial Court felt that there was a ground for proceeding. The real question, which comes, however, is as to how after rejecting the application made by the accused under Section 245(2) Cr.P.C., the Trial Court straightaway proceeded to frame the charge. 22. The charge is framed under Section 246(1) Cr.P.C., which runs as under:- 246(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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords at any previous stage under Section 246(1) Cr.P.C., the Learned Single Judge in that case, came to the conclusion that the phraseology only suggested that the Magistrate can frame charge, even before all the evidence is completed under Section 244 Cr.P.C. Section 244 Cr.P.C. specifically mandates that as soon as the accused appears or is brought before the Court, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Further, Section 245 Cr.P.C. also mandates that if upon taking all the evidence referred to in Section 244 Cr.P.C., 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. 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 ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression in the aforementioned case of Cricket Association of Bengal Ors. Vs. State of West Bengal Ors. (cited supra). That was a case under old Section 253(2), which is pari materia to the present Section 245(1). On the other hand, the Court has very specifically stated therein that Section 253(2) gives ample jurisdiction to the Magistrate to discharge the accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. It is further stated in Para 13 that sub-Section (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-Section (2). Since we have found error in the above mentioned judgment, we have mentioned so. However, the ruling in Cricket Association of Bengal Ors. Vs. State of West Bengal Ors. (cited supra) also supports our earlier finding that the Magistrate has the power to discharge the accused, even before any evidence is recorded and thus, an application for discharge at that stage is perfectly justifiable. However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the clear opinion that some evidence would have to be there for framing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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