# (u/s 482 Cr.P.C.) Mohit Kumar Kankar & Anr v. State of U.P. & Anr

- **Citation:** (2015) 1 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-19
- **Case number:** Criminal Misc. Application No. 50248 of 2014
- **Bench:** Satyendra Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-482-cr-p-c-mohit-kumar-kankar-anr-v-state-of-u-p-anr-43238
- **Pages:** 7

## Headnote

Cr.P.C.
-Section-482-Chargesheet
challenged-on
ground-without
following
procedure contained u/s Section 244(1)-
without opportunity of cross-examination to
the
accused
applicant-order
impugned
framing
charges-held-not
sustainablevarious reasons discussed.
Held: Para-12 & 19

## Text

88
 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 14.08.2014 is hereby allowed
and the impugned order is set aside.
21. No order as to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2014
BEFORE
THE HON'BLE SATYENDRA SINGH
CHAUHAN, J.
Criminal Misc. Application No. 50248 of 2014
(u/s 482 Cr.P.C.)
Mohit Kumar Kankar & Anr. ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicants:
Sri Vikas Sharma, Sri Sanjay Singh
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.
-Section-482-Chargesheet
challenged-on
ground-without
following
procedure contained u/s Section 244(1)-
without opportunity of cross-examination to
the
accused
applicant-order
impugned
framing
charges-held-not
sustainablevarious reasons discussed.
Held: Para-12 & 19
12. The Apex Court further proceeded to
hold that the evidence under Chapter
XIX (B) has to be recorded in the
presence of the accused and if a right of
cross-examination was not given to him,
then he would be no more than an idle
spectator in the entire process. The
object of the whole process is to ensure
that not only does the accused have the
opportunity
to
hear
the
evidence
adduced against him, but also to defend
himself
by
cross-examining
the
witnesses with a view to showing that
the witness is either unreliable or that a
statement made by him does not have
any evidentiary value or that it does not
incriminate him.
19.
On a consideration of the above case
laws and the principles laid down therein,
the order impugned does not appear to be
correct order and the trial court has
proceeded to commit illegality in framing
the charge without recording evidence
under Section 244 (1) Cr.P.C. The order
framing
charge,
therefore,
cannot
be
sustained in law.
Case Law discussed:
(2013) 9 SCC 209; (2009) 14 SCC 115; (2010)
11 SCC 520
(Delivered by Hon'ble Satyendra Singh
Chauhan, J.)
1.
Through
this
petition,
the
petitioners have challenged the order of
framing of charge dated 11.11.2014 passed
by the Addl. Chief Judicial Magistrate,
Court No.4, Aligarh in Case No.579 of
2012 (Yatindra Kumar Vs. Mohit Kumar
Kankar and another) under Section 246 of
the Code of Criminal Procedure (for short
"Cr.P.C.") in a warrant case instituted other
than police report.
2. The fact in short giving rise to the
present dispute are that an application under
Section 156 (3) Cr.P.C. was moved by
opposite party no.2 on 30.11.2012, which
was treated as complaint by the trial court
vide order dated 19.12.2012. In the said
complaint, opposite party no.2 alleged that
he and petitioner no.1 were the friends and
one and a half years ago, petitioner no.1
borrowed Rupees one lakh from him and
again after six months, he (petitioner no.1)
borrowed Rupees one lakh from him
(opposite party no.2), but when petitioner
no.1 failed to return the money in cash, he
gave a cheque of Rupees two lakh dated
8.11.2012 but the cheque was dishonoured as
1 All] Mohit Kumar Kankar & Anr. Vs. State of U.P. & Anr.
89
the account was closed. On 25.11.2012, it is
alleged that the petitioners came to the shop
of the informant and they used abusive
language and threatened him to kill. The
application moved by opposite party no.2
under Section 156 (3) Cr.P.C. was treated as
complaint and opposite party no.2 was
examined under Section 200 Cr.P.C before
the trial court and one Vishal Kumar was
examined as witness under Section 202
Cr.P.C. Learned Addl. Chief Judicial
Magistrate, Aligarh proceeded to summon
the petitioners vide order dated 4.6.2013 on
the basis of the aforesaid evidence. On
11.11.2014, the trial court proceeded to
frame charge against the petitioners under
Sections 323, 504, 506 & 379 IPC. It is this
order, which is under challenge in this
petition.
3. Submission of learned counsel for
the petitioners is that without recording
evidence as contemplated under Section
244
Cr.P.C.,
learned
Magistrate
has
proceeded to frame the charge. Submission
is that the charge could not have been
framed without giving opportunity of crossexamination in respect of the evidence
adduced under Section 244 (1) Cr.P.C.
Learned
counsel
submits
that
nonexamination of witnesses in the presence of
the accused persons and further denying
them right to cross-examine the witnesses
will prejudice their case and the veracity of
the allegations will not be established in a
correct manner. Submission is that charge,
which has been framed without recording
evidence under Section 244 Cr.P.C. is
wholly illegal and phrase occurring in
Section 246 Cr.P.C. "or at any previous
stage of the case" does not mean that any
evidence which has been recorded at the
time of summoning could be used for the
purpose of framing of charge. Learned
counsel submits that the evidence as
required under Section 3 and Section 138
of the Indian Evidence Act is the proper
evidence to be considered and a right to
cross-examine
cannot
be
foreclosed
before framing the charge. If such right is
foreclosed, then authenticity of the
evidence cannot be judged by the trial
court and the truth will not come to light.
He has placed reliance upon the judgment
rendered by the Apex Court in the case of
Sunil Mehta and Anr. v. State of Gujarat
and Anr., (2013) 9 SCC 209.
4. Learned AGA, on the other hand,
has drawn the attention of the Court
towards the phrase "or at any previous
stage of the case" and has tried to justify
the order of framing of charge on the
reasoning that the evidence which has
been recorded at the time of summoning
can be used as evidence for framing of the
charge and he has also submitted that as
and when the charge is framed and the
accused person adduces his evidence, he
will have a right for cross-examination.
5. I have heard learned counsel for
the parties and perused the record.
6.
The question involved in the
present petition is as to whether the charge
can be framed without recording evidence
under Section 244 (1) Cr.P.C. is not res
integra and stands decided by the Apex
Court in the case of Sunil Mehta (supra).
7.
Learned Magistrate has not
recorded any evidence as contemplated
under Section 244 (1) Cr.P.C. and has
proceeded
to
frame
the
charge
as
contemplated under Section 246 (1) Cr.P.C.
8. The question is as to when the
accused persons will get opportunity to
cross-examine the witness if they put their
90
 INDIAN LAW REPORTS ALLAHABAD SERIES
appearance under Section 246 Cr.P.C.
without
recording
any
evidence
as
contemplated under Section 244 (1)
Cr.P.C. In this regard, the Apex Court
while considering the similar question
held as under:-
"7. It is difficult to appreciate the
logic underlying the above observations.
It appears that the High Court considered
the deposition of this complainant and his
witnesses recorded before the appearance
of the accused Under Section 202 of the
Code of Criminal Procedure to be
'evidence' for purposes of framing of
charges against the Appellants. Not only
that, the High Court by some involved
process of reasoning held that the accused
persons
had
an
opportunity
to
crossexamine the witnesses when the said
depositions were recorded. The High
Court was, in our opinion, in error on both
counts. We say so for reasons that are not
far to seek. Chapter XV of the Code of
Criminal Procedure, 1973 deals with
complaints made to Magistrates. 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 case for
enquiry or trial by another Magistrate
Under Section 192 of the Code of
Criminal Procedure."
9. In paragraph-7 of the case of
Sunil Mehta (supra), the Apex Court
while elaborating the difference between
the evidence recorded at the summoning
stage under Section 200 Cr.P.C. and the
evidence to be recorded after the accused
has put in appearance by the prosecution
has further considered in paragraphs-11 &
12.
10. The nature of evidence to be
adduced by the prosecution has been
found to be the evidence which is
acceptable under Section 3 of the Indian
Evidence Act and under Section 138 of
the Evidence Act. Section 138 of the
Evidence Act refers to cross-examination
whereas Section 3 of the Indian Evidence
Act refers to the evidence recorded before
the court. Section 138 of the Evidence Act
casts duty upon the court to allow the
adverse party to cross-examine if he so
desires.
Examination
and
crossexamination have to be held in the
presence of the parties.
11. In paragraphs 11 and 12 of the
case of Sunil Mehta (supra), it was held as
under:-
"11. A simple reading of the above
would show that the Magistrate is
required to frame in writing a charge
against the accused "when such evidence
has been taken" and there is ground for
presuming that the accused has committed
an offence triable under this Chapter
which such Magistrate is competent to try
and adequately punish.
12. Sections 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
1 All] Mohit Kumar Kankar & Anr. Vs. State of U.P. & Anr.
91
discharge is also Under Section 245
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. The expression "when
such evidence has been taken" appearing
in Section 246 is significant and refers to
the evidence that the prosecution is
required to produce in terms of Section
244(1) of the Code. There is nothing
either in the provisions of Sections 244,
245 and 246 or any other provision of the
Code for that matter to even remotely
suggest
that
evidence
which
the
Magistrate may have recorded at the stage
of taking of cognizance and issuing of
process against the accused under Chapter
XV tantamounts to evidence that can be
used by the Magistrate for purposes of
framing of charges against the accused
persons Under Section 246 thereof
without the same being produced Under
Section 244 of the Code. 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 crossexamine the witnesses produced by the
prosecution."
12. The Apex Court further
proceeded to hold that the evidence under
Chapter XIX (B) has to be recorded in the
presence of the accused and if a right of
cross-examination was not given to him,
then he would be no more than an idle
spectator in the entire process. The object
of the whole process is to ensure that not
only
does
the
accused
have
the
opportunity to hear the evidence adduced
against him, but also to defend himself by
cross-examining the witnesses with a
view to showing that the witness is either
unreliable or that a statement made by
him does not have any evidentiary value
or that it does not incriminate him.
13. In paragraph-17 of the case of
Sunil Mehta (supra), it was held as
under:-
"17. Secondly, because evidence
under Chapter XIX (B) has to be recorded
in the presence of the accused and if a
right of cross-examination was not
available to him, he would be no more
than an idle spectator in the entire
process. The whole object underlying
recording of evidence Under Section 244
92
 INDIAN LAW REPORTS ALLAHABAD SERIES
after the accused has appeared is to ensure
that not only does the accused have the
opportunity to hear the evidence adduced
against him, but also to defend himself by
crossexamining the witnesses with a view
to showing that the witness is either
unreliable or that a statement made by
him does not have any evidentiary value
or that it does not incriminate him. Section
245 of the Code, as noticed earlier,
empowers the Magistrate to discharge the
accused if, upon taking of all the evidence
referred to in Section 244, he considers that
no case against the accused has been made
out which may warrant his conviction.
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. It is elementary
that the ultimate quest in any judicial
determination is to arrive at the truth, which
is not possible unless the deposition of
witnesses goes through the fire of crossexamination. In a criminal case, using a
statement of a witness at the trial, without
affording to the accused an opportunity to
cross-examine,
is
tantamount
to
condemning him unheard. Life and liberty
of an individual recognised as the most
valuable rights cannot be jeopardised leave
alone taken away without conceding to the
accused the right to question those deposing
against him from the witness box."
14. The Apex Court proceeded to rely
upon the case of Ajoy Kumar Ghose v.
State of Jharkhand and Anr., (2009) 14 SCC
115 and also placed reliance upon a
judgment
rendered
in
the
case
of
Harinarayan
G.
Bajaj
v.
State
of
Maharashtra and Ors., (2010) 11 SCC 520,
wherein the similar view was expressed.
15. In the case of Ajoy Kumar
Ghose (supra), it was held as under:-
"The language of the Section clearly
suggests that it is on the basis of the
evidence offered by the complainant at the
stage of Section 244(1) Code of Criminal
Procedure, that the charge is to be framed, if
the Magistrate is of the opinion that there is
any ground for presuming that the accused
has committed an offence triable under this
Chapter. Therefore, ordinarily, when the
evidence is offered Under Section 244 Code
of Criminal Procedure by the prosecution,
the Magistrate has to consider the same, and
if he is convinced, the Magistrate can frame
the charge."
16. The Apex Court in the case of
Sunil Mehta (supra) has further held as
under:-
"20. This 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 24. This
Court approved the decision of the High
Court of Bombay in Sambhaji Nagu Koli v.
State
of
Maharashtra,
MANU/MH/0185/1978 : 1979 Cri. LJ 390
(Bom), where the High Court has explained
the purport of the expression "at any
previous stage of the case". The said
expression, declared this Court, only meant
that the Magistrate could frame a charge
against the accused even before all the
evidence which the prosecution proposed to
adduce Under Section 244(1) was recorded
and nothing more. This Court observed:
44. In Section 246 Code of Criminal
Procedure also, the phraseology is "if,
when such evidence has been taken",
1 All] Mohit Kumar Kankar & Anr. Vs. State of U.P. & Anr.
93
meaning thereby, a clear reference is
made to Section 244 Code of Criminal
Procedure. The Bombay High Court came
to the conclusion that the phraseology
would, at the most, mean that the
Magistrate may prefer to frame a charge,
even before all the evidence is completed.
The
Bombay
High
Court,
after
considering the phraseology, came to the
conclusion that the typical clause did not
permit the Magistrate to frame a charge,
unless there was some evidence on
record. For this, the Learned Single Judge
in that matter relied on the ruling in Abdul
Nabi
v.
Gulam
Murthuza
Khan
MANU/AP/0074/1968: 1968 Cri LJ 303
(AP)."
17. In the case of Harinarayan G.
Bajaj (supra), the principles laid down in
the case of Ajoy Kumar Ghose (supra)
were held to be the correct principles and
it was laid down that an accused has right
to cross-examine the witness produced by
the prosecution before framing of charge
against him and has a valuable right.
18. Paragraph-22 of the case of
Sunil Mehta (supra) is as follows:-
"22. In Harinarayan G. Bajaj v. State
of
Maharashtra
and
Ors.
MANU/SC/0006/2010 : (2010) 11 SCC
520, this Court reiterated the legal
position stated in Ajoy Kumar Ghose
(supra) and held that the right of an
accused
to
cross-examine
witnesses
produced by the prosecution before
framing of a charge against him was a
valuable right. It was only through crossexamination that the accused could show
to the Court that there was no need for a
trial against him and that the denial of the
right of cross-examination Under Section
244 would amount to denial of an
opportunity to the accused to show to the
Magistrate that the allegations made
against him were groundless and that
there was no reason for framing a charge
against him. The following passages are
in this regard apposite:
18. This Court has already held that
right to cross-examine the witnesses who
are examined before framing of the
charge is a very precious right because it
is only by cross-examination that the
accused can show to the Court that there
is no need of a trial against him. It is to be
seen that before framing of the charge
Under Section 246, the Magistrate has to
form an opinion about there being ground
for presuming that the accused had
committed offence triable under the
Chapter. If it is held that there is no right
of cross-examination Under Section 244,
then
the
accused
would
have
no
opportunity to show to the Magistrate that
the allegations are groundless and that
there is no scope for framing a charge
against him.
xx xx xx
20. Therefore, the situation is clear
that Under Section 244, Code of Criminal
Procedure the accused has a right to
cross-examine the witnesses and in the
matter of Section 319, Code of Criminal
Procedure when a new accused is
summoned, he would have similar right to
cross-examine the witness examined
during the inquiry afresh. Again, the
witnesses would have to be reheard and
then there would be such a right. Merely
presenting such witnesses for crossexamination would be of no consequence.
23. In the light of what we have said
above, we have no hesitation in holding
that the High Court fell in palpable error
in interfering with the order passed by the
Revisional Court of Sessions Judge,
Gandhi Nagar. The High Court was
94
 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly in error in holding that the
Appellant had an opportunity to crossexamine the witnesses or that he had not
availed of the said opportunity when the
witnesses were examined at the stage of
proceedings under Chapter XV of the
Code. The High Court, it is obvious, has
failed to approach the issue from the
correct perspective while passing the
impugned order.
24. In the result we allow this appeal
with costs Assessed at Rs.50,000/-, set
aside the order passed by the High Court
and restore that passed by the Sessions
Judge. The costs shall be deposited by
Respondent No. 2-company in the SCBA
Lawyers' Welfare Fund within two weeks
of the pronouncement of this order."
19. On a consideration of the above
case laws and the principles laid down
therein, the order impugned does not
appear to be correct order and the trial
court has proceeded to commit illegality
in framing the charge without recording
evidence under Section 244 (1) Cr.P.C.
The order framing charge, therefore,
cannot be sustained in law.
20. The petition is accordingly
allowed. The order dated 11.11.2014 is
hereby set aside and the matter is remitted
to the trial court to proceed considering
the principles laid down hereinabove.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2014
BEFORE
THE HON'BLE HARSH KUMAR, J.
Criminal Misc. Application No. 50297 of
2014
(U/s 482 CR.P.C.)
Raj Kumar
...Applicant
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Sri Rajeev Trivedi
Counsel for the Respondents:
A.G.A.
Cr.P.C.-Section
482-Chargesheet
challenged -on ground of process of courtas the applicant again married with
prosecutist on achieving age of majorityadmittedly when occurrence took placeshe was only 15 1⁄2 years old girlsubsequent marriage will not undue the
offence-already
committed-petitioner
himself guilty for abusing the process of
Court-application rejected.
Held: Para-12
In view of the discussions made above, I
find
that
the
applicant
himself
is
committing abuse of process of Court and
has failed to show that any abuse of
process of Court has been caused by
submission of charge sheet. There is no
sufficient ground requiring exercise of
inherent power by this Court under section
482 Cr.P.C. for quashing the charge sheet
in order to prevent abuse of process of any
Court or otherwise to secure the ends of
justice. The application is devoid of merits
and is liable to be dismissed.
Case Law discussed:
JT 2010 (6) SC 588:(2010) 6 SCALE 767:2010
Cr.L.J. 3844; (2008) 1 SCC 474; (2008) 8 SCC
781.
(Delivered by Hon'ble Harsh Kumar, J.)
1. Heard Sri Rajeev Trivedi, learned
counsel for the applicant and learned
AGA for the State.
2. The application has been moved
under section 482 Cr.P.C. for quashing
the charge sheet in case crime no.193 of
2012, under sections 363, 366, 376, 120-B