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2017 DIGILAW 1299 (BOM)

Dilipkumar s/o Rajnarayan Saxena v. Vinodkumar s/o Rajnarayan Saxena

2017-07-06

V.M.DESHPANDE

body2017
JUDGMENT : V.M. Deshpande, J. Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel for the parties. 2. This proceeding under section 482 of the Code of Criminal Procedure is before this Court to challenge order passed by learned Judicial Magistrate First Class, Court No. 6, Nagpur dated 10.3.2013 in Regular Criminal Case No. 2427 of 2009 by which learned Magistrate framed charge for the offences punishable under Sections 420, 467, 468, and 471 of the Indian Penal Code together with judgment and order passed by learned Sessions Judge-8, Nagpur in Criminal Revision No. 92 of 2014 by which learned Revisional Court dismissed the revision filed on behalf of the present applicant. 3. I have heard learned counsel Shri S.V. Sirpurkar for the applicant in extenso so also learned counsel Shri A.T. Purohit for the non-applicant. 4. As per submissions of learned counsel Shri S.V. Sirpurkar for the applicant, there is a gross violation of procedure as it mandates under section 244 of the Code of Criminal Procedure and, therefore, order of framing of charge is required to be set aside. It is his another submission that impugned order of framing of charge does not depict application of mind on the part of learned Magistrate. 5. A private complaint was filed by the present non-applicant. By the said complaint, it is alleged that the present applicant has committed the offences punishable under Sections 420, 467, 468, and 471 of the Indian Penal Code. 6. Since the case is a warrant case instituted than a police report, the case is governed by the procedure as envisaged under sections 242 to 247 of the Code of Criminal Procedure. 7. As per section 244 of the Code of Criminal Procedure, if a warrant case is instituted otherwise than a police report and accused appears or is brought before learned Magistrate, learned Magistrate to proceed with the complaint to hear the case of prosecution and to take all such evidence as may be produced in support of the prosecution. 8. In the present case, at this stage before Court below, the presence of the applicant accused is not in dispute. 9. According to learned counsel for the applicant, after examination-in-chief of the complainant and other 3 witnesses, they were cross-examined by the present applicant/accused. 8. In the present case, at this stage before Court below, the presence of the applicant accused is not in dispute. 9. According to learned counsel for the applicant, after examination-in-chief of the complainant and other 3 witnesses, they were cross-examined by the present applicant/accused. Thereafter, learned Magistrate was of the view that there is a material to frame charge, therefore, charge was framed. 10. Learned counsel Shri S.V. Sirpurkar for the applicant very seriously attacks this particular procedure adopted by learned Magistrate by making a submission that at that particular point of time learned Magistrate ought not to have allowed the accused to cross-examine the complainant and his witnesses. I am afraid that such submission has any merit. 11. It is always a choice of the accused person till the stage of Section 244 passed away either to participate in the proceeding by cross-examining prosecution witnesses or not to cross-examine the prosecution witnesses. Merely because at that stage accused is not cross-examining the complainant or his witnesses, that does not extinguish valuable right of the cross-examination on the part of the accused at the appropriate stage. 12. At that stage it is the duty of the complainant to adduce such evidence which prima facie shows that there is a material against the accused for framing of charge. At this stage, if the complainant or witnesses are cross-examined, there is an every possibility to disclosing the defence of the accused persons. Therefore, the accused may not cross-examine the prosecution witnesses. 13. In the present case, it appears that at the stage of section 244 of the Code of Criminal Procedure when the complainant and his witnesses entered into the witness box, applicant/accused exercised his right of cross-examine of those witnesses. It was not incumbent on the part of applicant/accused at that time to cross examine the complainant or his witnesses. However, since he exercised his choice to cross-examine, at this stage learned counsel for the applicant surely cannot reck up that issue by pointing finger at learned Magistrate that he has committed in any jurisdictional or procedural lapse. 14. The impugned order of framing of charge shows that learned Magistrate after considering the evidence that is brought on record noticed that there is a prima facie case for framing of charge. 14. The impugned order of framing of charge shows that learned Magistrate after considering the evidence that is brought on record noticed that there is a prima facie case for framing of charge. At this stage, it is not expected from learned Magistrate to write a complete judgment to give all reasons in detail. What is important at this stage framing of charge is consideration by learned Magistrate. The impugned order shows that learned Magistrate has applied his mind after considering the evidence. Further, learned Revisional Court in detail has assessed the evidence that was brought on record before framing of charge and noticed that there is a sufficient material to frame charge. 15. In view of the aforesaid, in my view, the present application is devoid of any merit and needs to be rejected and accordingly it is rejected. Rule is discharged.