JUDGMENT - Rele B.J. J.-The rule raises an interesting question whether the Magistrate should first decide the question, before examination of the accus-ed under section 313 of the Code of Criminal Procedure, 1973, whether the evidence of a witness recorded before framing charge should be expunged, or should be treated as non est, since the witness was not available for cross-examination by the accused after the charge was framed. 2. For determining the question it would not be necessary for me to state the full facts of the case. A synopsis, sufficient for the determination of the question, would suffice. The first respondent filed a complaint in the Court of the Additional Chief Metropolitan Magistrate, 33rd Court at Ballard Estate, Bombay, against the petitioner-accused No. 1 and another accused, who is respondent No. 2 in this petition and who has been served but he has not appeared, for having committed an offence under sec-tions 120-B and 408 of the Indian Penal Code. During the period from 25th February 1964 to 9th March 1972 Shri Haridas Mudhra is alleged to have been in the management and control of the complainant Turner Morri-son Company Limited under the circumstances mentioned in the com-plaint. The petitioner was a Director in that Company during that period. On 30–6-1969 the complainant Turner Morrison Company Limited opened an account with the Bank of Maharashtra. It appears that two of the Directors of the complainant Company were authorised to create an equitable mortgage of fixed assets of Messrs Mallet Welding Works, a division of the complainant-Company. The said account was opened in order to enable the complainant-Company to raise funds on security of the fixed assets. It is alleged by the complainant-Company that by a subterfuge adopted by the petitioner in collusion with respondent No. 2, the petitioner-accused No. 1 managed to obtain Rs. 7,00,000 for the benefit of himself. The modus operandi adopted by the petitioner-accused No. 1 and respondent No. 2 - accused No. 2 is that on 2–7-1969 Rs. 7,00,000 were withdrawn from the Bank of Maharashtra in favour of one Kashi Prasad Kedia, who is the witness examined in this case before the charge was framed. On the same day, i. e., on 2–7-1969, Kashi Prasad Kedia transferred the said amount of Rs. 7,00,000 in favour of Basant Trading Company, a financing Company. 7,00,000 were withdrawn from the Bank of Maharashtra in favour of one Kashi Prasad Kedia, who is the witness examined in this case before the charge was framed. On the same day, i. e., on 2–7-1969, Kashi Prasad Kedia transferred the said amount of Rs. 7,00,000 in favour of Basant Trading Company, a financing Company. On the same day, i. e., 2–7-1969, Basant Trading Company issued two drafts, one for Rs. 4,00,000 in favour of Hind Product Pvt. Ltd., Calcutta, and the second for Rs. 3,00,000 in favour of Tapuria and Sons Pvt. Ltd. It appears that the said two drafts were encashed by the payees thereof on 7–7-1969. Hind Pro-ducts Pvt. Ltd, Calcutta, and Tapuria Sons Pvt. Ltd. got their respective amounts transferred in favour of the present Petitioner-accused No. 1. It is in these circumstances that the complainant-Turner Morrison Co. Ltd. have alleged that the Petitioner-accused No. 1 has misappropriated the said amount of Rs. 7,00,000 in conspiracy with respondent. No 2. 3. Before the charge was framed, the learned Metropolitan Magistrate examined the said Kashi Prasad Kedia as a witness under the provisions of section 244 of the Code of Criminal Procedure and in that examination witness Kedia produced some documents, which are marked as Exhibit 'B' and Exhibit 'C. Witness Kedia was cross-examined on behalf of respon- dent No. 2, accused No. 2, and in his cross-examination a document was produced which is marked as Exhibit 4. 4. The learned Metropolitan Magistrate thereafter framed a charge under section 120-B read with section 408 of the Indian Penal Code against both the accused, viz., the petitioner and the respondent No. 2, and under section 408 of the Indian Penal Code against the petitioner. Thereafter, the petitioner required witness Kashi Prasad Kedia for cross-examination. Some adjournments were granted at the instance of the prosecution for producing witness Kashi Prasad Kedia for cross-examination. It appears that the matter was referred to by the Court to Police Inspector Kamat of the D. C. B. C. I. D., Bombay, for tracing witness Kashi Prasad Kedia. On 4th February 1980 Police Sub-Inspector Kamath filed a report that Kashi Prasad Kedia was not traceable. Thereafter the matter progressed and the prose-cution closed its case and the case is now posted for examination of the accused under section 313 of the Code of Criminal Procedure. 5. On 4th February 1980 Police Sub-Inspector Kamath filed a report that Kashi Prasad Kedia was not traceable. Thereafter the matter progressed and the prose-cution closed its case and the case is now posted for examination of the accused under section 313 of the Code of Criminal Procedure. 5. Pending examination of the accused under the said section 313 of the Code on 4th February 1980, on behalf of the complainant an application was made to the Court that the evidence given by P. W. 4 Kashi Prasad Kedia be treated as relevant under section 33 of the Evidence Act for proving the prosecution case. In continuation of the said application, another appli- cation was made on behalf of the complainant-Turner Morrison Co. Ltd. on 7th April 1980 that the evidence recorded of P. W.4 Kashi Prasad Kedia be also treated as relevant and admissible under section 32, sub-clause (3) of the Evidence Act. On behalf of the petitioner-accused No. 1 a reply was tiled on 14th April 1980 to the said two applications that in order to attract the provisions of section 32 (3) of the Evidence Act it has to be shown that persons making the statements knew that it was against their pecuniary or proprietary interest and that none of the requirements of section 32 (3) of the Evidence Act have been fulfilled. In the reply some decisions of the Supreme Court and of this Court have been referred to and it was submitted that the right to cross-examine witnesses accrued to the petitioner-accused No. 1 after the charge was framed and that since the right did not accrue at an earlier stage, section 33 of the Evidence Act could not be availed of by the prosecution. In the said premises, it was submitted that two applica- tions made by the complainant-Company should be rejected and a prayer was added that the evidence of P. W. 4 Kashi Prasad Kedia should be expunged. The learned Metropolitan Magistrate by his order dated 28–4-1980 stated : - “Question of the admissibility of evidence of P. W. 4 who has not become available after part evidence recorded will be considered only at the stage of argument and decided along with judgment.” 6. The learned Metropolitan Magistrate by his order dated 28–4-1980 stated : - “Question of the admissibility of evidence of P. W. 4 who has not become available after part evidence recorded will be considered only at the stage of argument and decided along with judgment.” 6. It is in these circumstances that the petitioner accused No. 1 has moved this Court invoicing its inherent powers under section 482 of the Criminal Procedure Code for expunging or for treating the evidence of P. W. 4 Kashi Prasad Kedia as non est. 7. Shri Rai has argued that unless the learned Magistrate decides before he examines the petitioner accused No. 1 under section 313 of the Code of Criminal Procedure, whether to treat the evidence recorded ofwitness Kashi Prasad Kedia as evidence in this case, the petitioner would be gravely prejudiced as he would not be able to enter upon his defence unless he knows for certain whether the evidence recorded of witness Kashi Prasad Kedia would be treated or would not be treated as evidence in this case. Shri Rai has argued that keeping this aspect of the matter hanging, the Magistrate has kept the petitioner accused No. 1 guessing as to what should be his defence, especially in regard to the evidence of witness P. W. 4 Kashi Prasad Kedia. Shri Rai has further argued that it is a cardinal principle of jurisprudence that no man should be taken by surprise and to require the accused to explain the circumstances appearing against him with-out even knowing whether the evidence of Kashi Prasad Kedia is to be treated as evidence or not would result in failure of justice and would also cause grave prejudice to the accused. Shri Rai has also submitted that the evidence of a witness who has not been made available for cross-examination is no evidence at all. To be evidence within the meaning of ;section 3 of the Evidence Act, it must be a complete evidence meaning thereby that the witness should be subjected to cross-examination and if necessary for re-examination and without a witness being submitted for cross-examination or re-examination, the evidence of a witness, though recorded on oath, is on no better footing than armere affidavit in a case where even the accused is not given an opportunity to reply to the same. Shri Rai has submitted that the object and purpose of cross-examination is for extracting the truth and exposing falsehood and if a witness is not made available for the purpose of cross-examination, an effective right, which is given to the accused for extracting the truth and for exposing the falsehood, is denied to the petitioner accused No. i and that, therefore, mere examination-in-chief cannot be treated as evidence and the question as to whether it would be treated as evidence and the circumstances which may appear against the accused in the evidence recorded of witness Kashi Prasad Kedia should first be decided by the learned Magistrate before requiring the accused to explain the cir-cumstances that may be put to him in his examination under section 313 of the Code of Criminal Procedure. Shri Rai has further argued that evidence of a witness, who is not subjected to cross-examination, being no evidence at all it should be treated as non est and the question as to whether the evi-dence would be treated as non-est should be determined before the accused is examined under section 313 of the Code. Shri Rai has also referred to the provisions of section 32 (3) of the Evidence Act and he has contended that unless the evidence is against the pecuniary or proprietary interest of the deponent, the evidence does not become relevant under the provision of sec-tion 32 (3) of the Evidence Act and, therefore, it is not admissible. Shri Rai has also referred to the provisions of section 33 of the Evidence Act and to the second para of the proviso to that section and he has contended that the adverse party, petitioner accused No. 1, had no right to cross-examine witness Kashi Prasad Kedia before framing charge and that though after the charge was framed, a right accrued to the petitioner accused No. 1 as pro-vided in section 246 of the Code of Criminal Procedure, 1973, he did not have an opportunity to cross-examine witness Kashi Prasad Kedia, and that, therefore, the petitioner-accused No. 1 having neither the right nor the opportunity of cross-examining witness Kashi Prasad Kedia, the provisions of section 33 are not attracted and on this ground also the evidence of P. W.4 Kashi Prasad Kedia recorded before the charge was framed should be treated as non est. Shri Rai has also referred to the provisions of sub-section (2) of section 397 of the Code of Criminal Procedure, 1973, and he has submit-ted that the said order 28–4-1980 is not an interlocutory order. He has submitted that inherent powers of the Court under section 482 are wide enough to exercise jurisdiction in a matter of this kind and, therefore, this Court would exercise its jurisdiction under the facts and circumstances of this case and issue directions to the Magistrate to decide the question which has been posed in this case, whether the evidence of witness Kashi Prasad Kedia should be treated as relevant and admissible or whether it should be treated as non-est, or it should be expunged or it should not be treated against accused No. 1 in this case, should be decided first. Shri Rai has further contended that leaving the matter open till after the arguments and for deciding this in the judgment is an abuse of the process of the Court and this Court under its inherent jurisdiction would stop the abuse of the process of the Court. 8. Shri Desai, learned counsel appearing on behalf of respondent No. 1, has submitted that there is no controversy that the arimissibility of evidence must be decided immediately or at least as early as possible. He has referred to the provisions of section 137 of the Evidence Act and he has distinguished between admissibility of evidence and the probative value thereof. He has contended that a statement made before a Court in examina-tion-in-chief is as much evidence as the evidence of a witness who has been cross-examined and re-examined. According to Shri Desai, 'evidence' means and includes all statements which the Court permits or requires to be made before it by a witness and in a given case a witness may not be cross-examin-ed. In such a case, his deposition given in examination-in-chief would be evidence. Therefore, to say that in order that statements made by a witness, who is permitted or required to make such statements before the Court, to be evidence, there must be examination-in-cruef, cross-examination and re-examination is erroneous. The statements recorded in examination-in-chief, according to Shri Desai, would be as much evidence as any other evidence. Therefore, to say that in order that statements made by a witness, who is permitted or required to make such statements before the Court, to be evidence, there must be examination-in-cruef, cross-examination and re-examination is erroneous. The statements recorded in examination-in-chief, according to Shri Desai, would be as much evidence as any other evidence. The only question would be that if such a witness is not made available for cross-examination, then what should be the weight that should be attached to such type of evidence is a matter which is altogecher different from the relevancy and admissibility of evidence and that, therefore, the application made by the petitioner accused No. 1 that the evidence of P. W. 4 Kashi Prasad Kedia should be expunged or should be treated as non est is contrary to law. He has referred to the provisions of Part B of Chapter XIX of the Code of Criminal Procedure, 1973, which deab with trial of warrant-cases by Magistrates and he has contended that on a plain reading of the provisions of sections 244 to 247, which fall in the said Pan B, the proce-dure that is required to be followed in a trial of warrant cases instituted otherwise than on police report, as in the present case, is that the Magistrate is empowered to record the evidence of witnesses before framing of charge and after the charge is framed, there is no further examination-in-chief of sach witnesses; but, as provided in sub-section (4) of section 246 such witnes-ses should be made available for cross-examination. Therefore, even under the provisions of Part B of Chapter XIX, the evidence recorded before the charge is framed is evidence and is relevant and admissible. The onlything is what weight should be attached to such evidence against an accused person who has been denied the right as also the opportunity of cross-examining the witnesses conferred upon the accused persons by sub-section (4) of sec-tion 246 could only be considered after the arguments are heard and in the judgment. It is only at that stage that the Court can consider this question. It is only at that stage that the Court can consider this question. The evidence of P. W. 4 Kashi Prasad Kedia has been admitted as being relevant and admissible without any grievance being made on behalf of the petitioner accused No. 1 and in fact on behalf of respondent No 2-accused No. 2, witness Kashi Prasad Kedia has been cross-examined and document Exhibit 4 has been produced in cross-examination. Once the evidence is admitted, admissibility of the evidence cannot be challenged at a later stage. What can at the most be said is that no weight should be attached to such evidence inasmuch as the accused has been denied the right and opportunity of cross-examining the witness. But that is altogether a different thing. Shri Desai has contended that there is no provision in the Code of Criminal Procedure that the evidence once recorded should be expunged or should be treated as non-est. In the words of Shri Desai, there is no provision in law that before judgment what has been ruled in has to be ruled out. Shri Desai has submitted that since the evidence has already been admitted, the circumstances appearing in the evidence would have to be put to the peti-tigner accused No. 1 in his examination under section 313 of the Code of Criminal Procedure, 1973. It will be considered in the judgment as to what should be done with such a type of evidence. Whether the Court would rely upon such type of evidence, the truth or the falsity of which has not been decided by the process of cross-examination, should be expected in the final analysis. 9. Section 3 of the Evidence Act defines 'evidence' as- “ '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 produced for the inspection of the Court; such documents are called documentary evidence”. Witness Kashi Prasad Kedia appeared in the Court in response to the summons issued to him for giving evidence and his examination-in-chief is as much evidence as any other deposition of a witness who has been examin-ed-in-chief, cross-examined and re-examined. It is not the relevancy or admissibility of the evidence of witness Kashi Prasad Kedia that is the ques-tion in issue at this stage. It is not the relevancy or admissibility of the evidence of witness Kashi Prasad Kedia that is the ques-tion in issue at this stage. The real question is what weight should be attached to the evidence inasmuch as the right and opportunity of extracting the truth and exposing the falsehood by process of cross-examination has been denied in this case to the petitioner accused No. 1 10. In this view of the matter, the question whether the learned Magistrate should at this stage decide the question in regard to the relevancy and admissibility of evidence as has been prayed for in the two applications made by the complainant-company or whether it should be expunged as prayed by the petitioner accused No. 1 before even the petitioner accused No. 1 is called upon to explain the circumstances-appearing against him does not arise. 11. The object of section 313 of the Code of Criminal Procedure, 1973, is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution, which may be prima facie against him, are not true or are consistent with his innocence. The examination under sec-tion 313 of the Code of Criminal Procedure, 1973, is not an idle formality. The opportunity must be real and adequate. (See Rama Shankar Singh v. State of West Bengal1). It would be for the learned Metropolitan Magistrate to consider whether in view of the fact that the petitioner-accused No. 1 having been denied the right and opportunity to cross-examine witness Kashi Prasad Kedia, he should put any of the circumstances to,the accused, which are appearing against him, in his examination under section 313 of the Code of Criminal Procedure, 1973. 12. Reference may be usefully made to the provisions of Part B of Chapter XIX of the Code of Criminal Procedure, 1973. Sub-section (1) of section 244 requires the Magistrate to proceed to hear the prosecution in any warrant-case instituted otherwise than on police report and take all such evidence as may be produced in support of the prosecution. Sub-section (2) thereof requires the Magistrate to issue summons to any of the prosecution ' witnesses directing him to attend or to produce any document or other thing Section 245 empowers the Magistrate to discharge the accused if no case against the accused has been made out. Sub-section (2) thereof requires the Magistrate to issue summons to any of the prosecution ' witnesses directing him to attend or to produce any document or other thing Section 245 empowers the Magistrate to discharge the accused if no case against the accused has been made out. It also empowers the Magistrate by sub-section (2) to discharge the accused even at any previous stage if he considers the charge to be groundless. Sub-section (1) of section 246 provides that where a prima facie case has been made out against the accused, the Magistrate has to frame a charge against the accused. Sub-section (2) enjoins upon the Magistrate to read and explain the charge to the accused and to ask the accused whether he pleads guilty or has any defence to make Under sub-section (3) if the accused pleads guilty, the Magistrate shall record the plea and convict him thereon. Sub-section (4) of section 246 provides - “246. (4) If the accused refuses to plead, or does not plead or claims to be tried, or rif the accused is not convicted under 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.” And under sub-section (5), if the accused wishes to cross-examine any of the witnesses, the Magistrate is required to recall such witnesses for the purpose of cross-examination and re-examination. Sub-section (6) of section 246 provides that 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. The scheme of Part B, therefore, shows that the right to cross-examine any of the witnesses, who have been examined on behalf of the prosecution before trial, arises to the accused only after the charge is framed. The section, however, does not preclude an accused person from cross-examining any of the witnesses before the charge is framed. This is amp!y clear from the language used in sub-section (4) of section 246 as also sub-section (6). The section, however, does not preclude an accused person from cross-examining any of the witnesses before the charge is framed. This is amp!y clear from the language used in sub-section (4) of section 246 as also sub-section (6). The words “evidence of any remaining witnesses” used in sub-section (6) show that once a witness is examined-in-chief before the charge is framed, he is not to be ordinarily further examined-in-chief after the charge is framed but he isrequired to be recalled for the purpose of cross-examination. The word “recalled” in sub-section (5) of section 246 makes this amply clear. In the present case this valuable right has been denied to the accused for no fault of the petitioner-accused No. 1. But merely because the petitioner-accused No. 1 has been denied a valuable right of cross-examining P. W. 4 Kashi Prasad Kedia, it does not mean that the Magistrate should, at this stage of the proceedings before his examination under sec-tion 313 of the Code, consider as to what is to be done with the evidence. 13. The question is one of proof, disproof or non-proof of any evidence. The word “proved” has been defined in section 3 of the Evidence Act as- “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” The word “disproved” has been defined as “A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circum-stances of the particular case, to act upon the supposition that it does not exist.” And the word “Not proved” has been defined as - “A fact is said not to be proved when it is neither proved nor disproved.” Now, the application for expunging the evidence of P. W. 4 Kashi Prasad Kedia even before the examination of the petitioner-accused No. 1 under section 313 of the Code would have this effect that the Court is called upon to decide whether the fact is proved or not proved. Whether a tact is proved, disproved or not proved has to be considered by the Court only after the arguments are heard and in the judgment. The learned Magistrate has not committed any abuse of the process of the Court in deferring the ques-tion to be decided at the time the judgment is delivered. It would be travesty of law to require the Magistrate to consider the question of proof, disproof or non-proof of any evidence that has been recorded at an interlocutory stage of the trial. The petitioner has prayed that Kashi Prasad Kedia's evidence should be expunged. The ground put forth by the petitioner that he has not had the opportuaity of cross-examining the witness is no ground for expunging the evidence. The application made by the petitioner-accused No. 1 invoking the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for expunging the evidence of witness Kashi Prasad Kedia cannot, therefore, be granted. It is needless for me to consider the other arguments of the learned counsel, viz., whether the stage is an interlocutory stage or not, whether this Court can interfere at this inter-iocutory stage under its revisionary powers under section 397(2) of the Code of Criminal Procedure, 1973, which prohibits any interference at an inter-iocutory stage, as these are questions which need not be gone into. 14. It would be entirely for the learned Metropolitan Magistrate to consider whether, in view of the fact that witness Kashi Prasad Kedia not having been subjected to cross-examination and the opportunity to cross-examine him having been denied to the petitioner-accused No. 1, he should put any circumstances appearing in his evidence to the accused in his examination under section 313 of the Code. But one thing can surely be said that it would be ultimately for the learned Magistrate to consider after he arguments are heard and in the judgment as to what weight should be attached to the evidence of a witness who has not been subjected to cross-examination, the petitioner-accused No. 1 having been denied the opportunity of extracting the truth and exposing the falsehood. 15. In the result, the rule is discharged. Rule discharged -----