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2016 DIGILAW 1934 (ALL)

Manoj Kumar v. State Of U. P.

2016-05-18

SUNEET KUMAR

body2016
JUDGMENT : Suneet Kumar, J. 1. This revision is directed against the judgement and order dated 2 March 2016, passed by learned Special Chief Judicial Magistrate, Allahabad in Complaint Case No. 4270 of 2008 (Shyama Devi Vs. Manoj and others), under Sections 323, 504, 506, 452 IPC, P.S. Daraganj, District Allahabad, whereby the learned Magistrate has rejected the discharge application filed under Section 245(2) Cr.P.C. 2. The facts would reveal that the revisionist was summoned in a complaint under Section 323, 504, 506, 452 IPC, upon recording statement of the complainant under Section 200 and of his witness under Section 202 Cr.P.C. The revisionist while assailing the summoning order would contend that the statement recorded under Section 200 and 202 Cr.P.C is not reliable and false statement. Learned Magistrate rejected the application recording in the impugned order that prima facie, the ingredients of the offence is disclosed from the statements, further, sufficiency of the evidence is not to be gone into at the stage of summoning. 3. Learned counsel for the revisionist would submit that the case set up by the opposite party is false case and would contend that the fact of the case is entirely different from that set up in the complaint. 4. In Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209 , the question that fell for determination was as to whether deposition of complainant and his witnesses recorded under Chapter XV of the Code before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter XIX of the Code. 5. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. 5. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under Sub-section (3) of Section 161 Cr.P.C. of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, Magistrate comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 Cr.P.C. and the trial proceeds for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed. 6. 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) Cr.P.C., 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) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. 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. 7. Chapter XV of Cr.P.C deals with complaints made to Magistrate, Section 200 which appears in the said Chapter inter alia provides that the Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and signed by the complainant and the witnesses, as also the Magistrate. An exception to that general rule is, however made in terms of the proviso to Section 200 in cases where the complaint is made by a public servant acting or purporting to act in the discharge of his official duties, or where a court has made the complaint or the Magistrate makes over the cases for enquiry or trial by another Magistrate under Section 192 of the Cr.P.C. 8. Section 201 deals with the procedure which a Magistrate not competent to take cognizance of the case is required to follow. Section 202 empowers the Magistrate to postpone the issue of process against the accused either to inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceedings. Sub-section (2) of Section 202 empowers the Magistrate to take evidence of witnesses on oath in an inquiry under sub-section (1) thereof. Section 203 which is the only other provision appearing in Chapter XV, empowers the Magistrate to dismiss the complaint if he is of the opinion that no sufficient ground for proceeding with the same is made out. 9. Sub-section (2) of Section 202 empowers the Magistrate to take evidence of witnesses on oath in an inquiry under sub-section (1) thereof. Section 203 which is the only other provision appearing in Chapter XV, empowers the Magistrate to dismiss the complaint if he is of the opinion that no sufficient ground for proceeding with the same is made out. 9. There is no gainsaying that a Magistrate while taking cognizance of an offence under Section 200, whether such cognizance is on the basis of the statement of the complainant and the witnesses present or on the basis of an inquiry or investigation in terms of Section 202, is not required to notify the accused to show cause why cognizance should not be taken and process issued against him or to provide an opportunity to him to cross-examine the complainant or his witnesses at that stage. 10. In contra distinction, Chapter XIX of the Code regulates trial of warrant cases by Magistrate. While Part A of that Chapter deals with cases instituted on a police report, Part B deals with cases instituted otherwise than on a police report. Section 244 that appears in part B of Chapter XIX requires the Magistrate to “proceed to hear the prosecution” and “take all such evidence as may be produced in support of the prosecution” once the accused appears or is brought before him. Sub-section (1) of Section 245 empowers the Magistrate to discharge the accused upon taking all the evidence referred to in Section 244, if he considers that no case against the accused has been made out which if unrebutted would warrant his conviction. Sub-section (2) of Section 245 empowers the Magistrate to discharge an accused even “at any previous stage” if for reasons to be recorded by such Magistrate the charges are considered to be “groundless”. In cases where the accused is not discharged, the Magistrate is required to follow the procedure under Section 246 of the Code. 11. Section 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. 11. Section 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 (1) exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244. 12. The scheme of the two Chapters is totally different. While chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross examine the witnesses produced by the prosecution. (Refer : Sunil Mehta (supra). 13. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. 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. (Refer : Sunil Mehta (supra). 13. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. 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) Cr.P.C. 14. The Magistrate can discharge the accused under Section 245(1), if upon taking all the evidence referred to in Section 244, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. ( AIR 1971 SC 1925 ; Cricket Association of Bengal and others Vs. State of West Bengal and others, AIR 2008 SC 1731 ; S.K. Alagh Vs. State of U.P and others, see also Century Spg. And Mfg. Co. Ltd. vs. State of Maharashtra, (1972) 3 SCC 282 : 1972 SCC (Cri) 495. 15. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (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) Cr.P.C., the Magistrate has to come to a finding that the charge/allegation on the face value of the complaint and evidence, if any, 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 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly brings out this position. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C is completed or any stage prior to that. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C to Section 204 Cr.P.C. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant-case under Section 244 Cr.P.C. 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.P.C, makes an application for discharge. (Refer : Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115 , Nanhey Lal and other Vs. State of U.P, 2014 Crl. L. J 1405). 16. The word “groundless” in Section 245(2) Cr.P.C means that the materials put forth on behalf of the complainant must be such that it is not triable offences at all. Discharge of the accused prior to recording of evidence permissible, only if the charge is considered to be groundless. 17. The word “charge” has no reference to the framing of a charge. It is used in the sense of an accusation or allegation of an offence. ( AIR 1971 SC 1120 ; Lt. Col. S.K. Kashyap and another Vs. The State of Rajasthan). 18. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross examine the witnesses concerned. 19. Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence of the accused. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. 20. Whether or not a case is made out against him, can be decided only when the accused is allowed to cross examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. 20. Apex Court further clarified that the expression “or at any previous stage of the case” appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused even before any evidence was led under Section 244 i.e. on the basis of evidence taken at the stage of Section 200/202 Cr.P.C for issue of process (Refer Harinarayan G. Bajaj Vs. State of Maharashtra and others, 2010 (11) SCC 520 ). 21. The scope and ambit of sub-clause (1) and (2) of Section 245 Cr.P.C therefore is distinct and different, which can be summed as follows: (i) The Magistrate exercises power under Section 245 (1) on the accused being produced before him under Section 244; (ii) The evidence is led in the presence of the accused who has a right to cross-examine the witnesses led at the stage of Section 244; (iii) There being no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C. (iv) Section 245(2) Cr.P.C is a stage before the evidence of the prosecution under Section 244(1) is completed or any stage prior to that; such stages would be under Section 200 Cr.P.C to Section 204 Cr.P.C, because the next stage is only the appearance of the accused before the Magistrate in a warrant case under Section 244 Cr.P.C; (v) The Magistrate can take decision under Section 245(2) before the accused is brought before the Court or before the evidence is led under Section 244 Cr.P.C. There is no question of consideration of evidence at that stage as there is none. 22. Having considered the statement of law, at the stage of section 245(2) Cr.P.C, only prima facie case is to be seen as it is the stage before evidence of prosecution under Section 244 is led. Bare perusal of the statement under Section 200 and 202 Cr.P.C would prima facie, disclose the ingredients of offence against the revisionist. The learned counsel for the revisionist failed to point out any illegality or jurisdictional error. 23. Bare perusal of the statement under Section 200 and 202 Cr.P.C would prima facie, disclose the ingredients of offence against the revisionist. The learned counsel for the revisionist failed to point out any illegality or jurisdictional error. 23. The revision being devoid of merit is accordingly dismissed.