Judgment : Heard Shri S. G. Bhobe, learned Counsel appearing for the Petitioner and Ms. Milena Pinto, learned Addl. Public Prosecutor appearing for the Respondent. 2. The above Petition challenges an Order passed by the learned Sessions Judge dated 31.07.2012 in the Revision challenging the Order dated 29.02.2012 passed by the learned JMFC, Margao, in Criminal Case no. 380/S/03 dismissing the application dated 25.01.2012 filed by the Petitioner, came to be rejected. 3. The short point for consideration in the above Petition is what procedure is to be followed in proceedings which have been initiated at the instance of the learned Sessions Judge for offences punishable under Section 193 of the Indian Penal Code which is a warrant triable case otherwise than on police report. 4. Shri S. G. Bhobe, learned Counsel appearing for the Petitioner, pointed out that though the proceedings are to be considered as a warrant triable case otherwise than on police report, the learned Magistrate has gone to frame the charge and record the evidence of the Complainant. Learned Counsel further pointed out that though the Complainant has been examined, no other witness have been examined at the instance of the Respondent. Learned Counsel further pointed out that the procedure to be followed is under Chapter XIX-B of Cr.P.C. and, as such, the learned Magistrate was not justified to follow the procedure of a warrant triable case. Learned Counsel further pointed out that, in any event, the Petitioner would not object that the evidence of the Complainant which is completed be treated in terms of Section 244 of Cr.P.C. as evidence before charge. Learned Counsel as such submits that the impugned Order be quashed and set aside. In support of his submissions, the learned Counsel has relied upon the Judgment of the Apex Court reported in (2009) 14 S.C.C. 115 in the case of AjoyKumar Ghose vs. State of Jharkhand & anr. 5. On the other hand, Ms. Pinto, learned Addl. Public Prosecutor appearing for the Respondents, pointed out that the Petitioner ought to have raised this contention before the charge was framed or before the evidence of the Complainant was recorded. The learned Addl. Public Prosecutor pointed out that the Petitioner had earlier challenged the framing of charge by the learned J.M.F.C., and no such contention was raised before this Court whilst disposing of the Petition. Learned Addl. The learned Addl. Public Prosecutor pointed out that the Petitioner had earlier challenged the framing of charge by the learned J.M.F.C., and no such contention was raised before this Court whilst disposing of the Petition. Learned Addl. Public Prosecutor further pointed out that in terms of Section 465 of Cr.P.C., any such irregularity does not vitiate any order of finding arrived at by the learned JMFC. Learned Addl. Public Prosecutor further pointed out that even the Order framing of charge has not been challenged by the Petitioner and, as such, the question of raising such contention at this stage by the Petitioner is not at all justified. Learned Addl. Public Prosecutor as such points out that the Petition be rejected. 6. I have carefully considered the submissions of the learned Counsel and I have also gone through the records. It is not in dispute that an offence under Section 193 of the Indian Penal Code is to be tried as a warrant triable case otherwise than on police report and, as such, the contention of Shri Bhobe, learned Counsel appearing for the Petitioner that the procedure as provided under Chapter XIX-B in Cr.P.C. is to be accepted. In such circumstances, the question of framing of charge at this stage is not at all correct. The Apex Court in the said Judgment in the case of AjoyKumar Ghose vs. State of Jharkhand & anr. (supra) has observed at Paras 21, 22, 23, 24, 25, 30, 31, 51, 52 and 53 thus: “21. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) CrPC on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) CrPC, 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. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) CrPC, 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) CrPC. 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. 22. 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 framing of the charge. Of course, under Section 245(2) CrPC, a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless. 23. Essentially, the applicable sections are Sections 244 and 245 CrPC 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) CrPC or to summon its witnesses under Section 244(2) CrPC. This did not happen and instead, the accused proceeded to file an application under Section 245(2) CrPC on the ground that the charge was groundless. 24. Now, there is a clear difference in Sections 245(1) and 245(2) of CrPC. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) CrPC. 25. The situation under Section 245(2) CrPC is, however, different. There, under subsection (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under Section 244 CrPC. The words appearing in Section 245(2) CrPC “at any previous stage of the case”, clearly bring out this position. 30. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) CrPC, where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) CrPC, and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. 31. The situation under Section 245(2) CrPC, however, is different, as has already been pointed out earlier. The Magistrate thereunder has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 CrPC and till the completion of the evidence of prosecution under Section 244 CrPC. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.PC, and makes an application for discharge. 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 PC. 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. 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. 52. Unfortunately, the earlier cases of the Andhra Pradesh High Court, which we have referred to above, were brought to the notice of the learned Judge in Verendracase12. 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. 53. Now, coming to the facts of this case, 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 under Section 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.” 7. In the presnet case, as the complaint has been filed by the Court, the question of examining the complaint in terms of Section 200 Cr.PC would not arise. So also the question of directing any further investigations under Section 202 of Cr.PC is not required. It is not in dispute that summons have already been issued to the Accused and they appeared before the learned JMFC. Once the case is a warrant triable case otherwise than on the basis of a police report, the procedure is provided under Section 244 of Cr.P.C. 8. In view of the Judgment of the Apex Court in the case of AjoyKumar Ghose vs. State of Jharkhand & anr. Once the case is a warrant triable case otherwise than on the basis of a police report, the procedure is provided under Section 244 of Cr.P.C. 8. In view of the Judgment of the Apex Court in the case of AjoyKumar Ghose vs. State of Jharkhand & anr. (supra), the charge framed by the learned JMFC under Section 193 of the Indian Penal Code against the Accused at this stage is not justified and is prematured. The evidence recorded by the learned JMFC of the Complainant would be considered for the purpose of inquiry before framing of charge. Hence, the evidence of the Complainant recorded is to be treated as evidence before framing charge in terms of Section 244 of the Cr.P.C. The learned Magistrate would in fact proceed with the said criminal case by following the procedure under Section 244 of the Cr.P.C. by examining the remaining witnesses of the prosecution and, after such evidence is recorded consider if any case is made for framing of charge against the Accused. 9. In view of the above, the charge framed in Criminal Case no. 380/S/2003 dated 02.07.2008 is quashed and set aside. The learned JMFC, Margao, will proceed to consider the evidence of the Complainant recorded in the said proceedings as evidence before charge and proceed under Section 244 of Cr.P.C. in accordance with law. 10. Rule is made absolute in the above terms.