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Madhya Pradesh High Court · body

2002 DIGILAW 836 (MP)

Banshilal S/o Gangaramji v. State of M. P.

2002-09-04

S.L.KOCHAR

body2002
ORDER : 1. This petition has been directed against the order dated 12th July, 02 passed by Ist ASJ Ratlam in Criminal Revision No. 43/02, arising out of order dated 14-1-2002 passed by the learned JMFC Jaora in Criminal Case No. 509/02. 2. Succinctly, the case of the applicant as well as the prosecution before the trial Court was that learned JMFC Jaora filed Criminal Complaint against the applicant Banshilal for giving false statements on oath in Court, before the Chief Judicial Magistrate Ratlam. Learned Chief Judicial Magistrate, Ratlam, took cognizance of the complaint in accordance with law and transmitted the same for trial to the Court of Judicial Magistrate, Jaora. 3. Learned Judicial Magistrate, First Class, Ratlam on receiving the case from the Court of learned Chief Judicial Magistrate, framed the charge against the applicant under section 193, Indian Penal Code and examined prosecution witnesses. The applicant was given full opportunity to cross-examine all the prosecution witnesses. After completion of the prosecution witnesses accused statement was recorded under section 313, Criminal Procedure Code. The applicant did not produce any defence witness. Therefore, arguments were heard finally and the case was fixed for judgment on 14-1-2002. While considering the case for judgment, learned Magistrate, found that offence under section 193, Indian Penal Code is punishable for 7 years, therefore, procedure as prescribed under Chapter 19-B Cases instituted otherwise than on police report should have been followed, but the said procedure has not been adopted and under section 244 Criminal Procedure Code an examination of prosecution witnesses should have been done and only thereafter the procedure for discharge of framing of charge as enumerated under sections 245 and 246, Criminal Procedure Code should have been adopted. Finding this procedural mistake in trial learned trial Court found it bona fide mistake in procedure, again called upon the parties to address the Court for framing of charge on the basis of statements of prosecution witnesses recorded earlier after framing charge treating the same as recorded under section 244, Criminal Procedure Code. 4. Learned trial Court upon hearing both the parties framed charge under section 193 Indian Penal Code against the applicant and fixed the case for calling the prosecution witnesses after framing charge for cross-examination, as per the provisions under section 246, sub-section (4) and (5) of the Code of Criminal Procedure. 5. 4. Learned trial Court upon hearing both the parties framed charge under section 193 Indian Penal Code against the applicant and fixed the case for calling the prosecution witnesses after framing charge for cross-examination, as per the provisions under section 246, sub-section (4) and (5) of the Code of Criminal Procedure. 5. Against this order dated 14-1-2002, the applicant preferred revision before the learned I ASJ Ratlam. Learned ASJ Ratlam dismissed the same. It is the impugned order, which is challenged in this Misc. Cri. Case. 6. The contention of the counsel for the applicant is that learned trial Court without observing the procedure prescribed under sections 200-202 Criminal Procedure Code for recording the statements of the prosecution witnesses, framed charge. He further, put forth that in view of the provisions under sections 460 and 461, Criminal Procedure Code, the Course adopted by the learned trial Court suo moto passing the order dated 14-1-2002 for treating the statements of the prosecution witnesses as recorded under section 244, Criminal Procedure Code the trial Court has erred in framing the charge against the applicant and thereby committed illegality, which will vitiate the whole trial. He also argued that because of illegality committed in procedure, the applicant should have been acquitted on the date of pronouncement of judgment instead of passing the order dated 14-1-2002. 7. Against this, learned Deputy Advocate General Mr. Desai, submitted that no illegality, irregularity or impropriety has been committed by the learned trial Court in passing the order dated 14-1-2002 since the complaint was filed by the learned Magistrate, therefore, under sections 200-202, Criminal Procedure Code the trial Court was not obliged to examine his statement under these provisions. After filing of the complaint and taking cognizance of the matter, learned trial Court has rightly issued process for appearance of the applicant. After appearance of the applicant, learned trial Court should have adopted procedure prescribed under section 244, Criminal Procedure Code because it is the case instituted otherwise than on police report. 8. Learned trial Court, while considering the case for Judgment, suo moto found its illegality in the procedure, framed the charge after hearing both parties. Considering the statements of the witnesses as recorded under section 244, Criminal Procedure Code. 9. According to Mr. Desai, Dy. 8. Learned trial Court, while considering the case for Judgment, suo moto found its illegality in the procedure, framed the charge after hearing both parties. Considering the statements of the witnesses as recorded under section 244, Criminal Procedure Code. 9. According to Mr. Desai, Dy. A.G. the trial Court has not committed any mistake, which may vitiate the whole trial and the revisional Court has also rightly dismissed the revision. 10. Having heard learned counsel for the parties, this Court is of the view that learned trial Court has not committed any illegality, irregularity or impropriety, which may vitiate the whole trial as per provision under section 461, Criminal Procedure Code. On the contrary by adopting this course, the applicant/accused will again get another chance to cross-examine the prosecution witnesses as per provision under section 246 sub-section 2, 4 and 5 of the Code of Criminal Procedure. 11. While passing the order dated 14-1-2002, learned Court treated the statements of the prosecution witnesses recorded after framing charge as recorded under section 244, Criminal Procedure Code. At the time of that recording the statements of prosecution witnesses, the applicant got an opportunity to cross-examine the witnesses. 12. Section 244, Criminal Procedure Code provides for taking of such evidence as may be produced in support of the prosecution before deciding the question of framing of charge or discharging the accused. Though under section 244, Criminal Procedure Code a specific right has not been given to the accused to cross-examine the witness but the word evidence therein is used in the same sense as in section 3 of the Evidence Act and includes examination, cross-examination and re-examination. Thus, the Magistrate is obliged to follow this procedure under section 244, Criminal Procedure Code before framing the charge against accused, otherwise, accused would be deprived of this right to cross-examine the witness and establish a case for his discharge. 13. In the present case, after receiving the case by the learned Magistrate from the Court of Chief Judicial Magistrate, learned Magistrate directly framed charge under section 193, Indian Penal Code and thereafter recorded the statements of the prosecution witnesses giving full opportunity to cross-examine the applicant. In view of treating this evidence as recorded under section 244, Criminal Procedure Code the applicant will again get second chance for calling prosecution witnesses as per his wishes and desire for cross-examination. In view of treating this evidence as recorded under section 244, Criminal Procedure Code the applicant will again get second chance for calling prosecution witnesses as per his wishes and desire for cross-examination. Therefore, no illegality has been committed by the learned Magistrate in passing the order dated 14-1-2002, which may vitiated the trial. 14. The course adopted by the learned Magistrate is well within the ambit of the provisions of law and there is no failure of justice or prejudice caused to the applicant. In the initial stage by not adopting the procedure as prescribed in section 244 of Chapter XIX(B) of the Criminal Procedure Code, no prejudice has been caused to the applicant. This Court is of the opinion that if learned trial Court would have not corrected irregularity committed by it in procedure and would have passed the judgment at that juncture the said judgment would have not been considered well within the provisions of law because there would have been clear illegality, committed by the trial Court depriving the accused/applicant from second chance of cross-examination of the prosecution witnesses. 15. Apart from this, the course and procedure adopted by the learned trial Court is also fully protected as per the provisions under section 465, Criminal Procedure Code which says that no finding, sentence or order passed by the Court of competent jurisdiction, shall be reversed or altered by the Court of appeal, confirmation, or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in enquiry or other proceedings under this Code, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. 16. In the present case, no failure of justice had occasioned and the applicant has not been prejudiced by the order and procedure adopted by the trial Court. On the contrary, the applicant/accused is benefited by this order because he will get second chance to cross-examine the prosecution witnesses. 17. On the wake of the aforesaid legal and factual discussions, this Court finds no substance in this petition filed under section 482, Criminal Procedure Code. It is hereby dismissed.