# SUNIL MEHTA & ANR v. STATE OF GUJARAT & ANR

- **Citation:** [2013] 2 S.C.R. 56
- **Court:** Supreme Court of India
- **Decided:** 2013-02-20
- **Case number:** Criminal Appeal No. 327 of 2013
- **Bench:** T.S. Thakur, Sudhansu Jyoti Mukhopadhaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunil-mehta-anr-v-state-of-gujarat-anr-28740
- **Pages:** 18

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
ss. 244 and 246 - Evidence for purposes of framing of
charge in a complaint case - Plea of complainant that
evidence adduced under Chapter XV be treated as evidence
for purposes of framing of charge - Held: Is untenable - In a
criminal case, using a statement of a witness at the trial,
without affording to accused an opportunity to cross-examine,
is tantamount to condemning him unheard - The process
under Chapter XV is conducted in the absence of accused,
whereas evidence within the meaning of Evidence Act and
so also within the meaning of s.244, Cr.P.C. is what is
recorded in the manner stipulated u/s 138 of Evidence Act -
The whole object underlying recording of evidence u/s 244
after accused has appeared, is to ensure that not only does
the accused have opportunity to hear the evidence adduced
against him, but also to defend himself by cross-examining
the witnesses - Evidence Act, 1872 - ss. 3 and 138.
In the instant appeal filed by the accused, the
question for consideration before the Court was: whether
depositions of the complainant and his witnesses
recorded under Chapter XV of the Code of Criminal
Procedure, 1973 before cognizance was 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.
[2013] 2 S.C.R. 56
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SUNIL MEHTA & ANR. v. STATE OF GUJARAT &
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Allowing the appeal, the Court
HELD: 1.1. 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. [para 17] [69D-E]
1.2. The schemes of Chapters XV and XIX of the
Code are totally different from each other. 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. There is 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. [para 12] [65-GH; 66-A-D]
1.3. The expression "Magistrate shall proceed to hear
the prosecution and take all such evidence as may be
produced in support of the prosecution" appearing in
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s.244 refers to evidence within the meaning of s.3 of the
Indian Evidence Act, 1872. Chapter X of the Evidence Act
deals with examination of witnesses and s 137 appearing
in that Chapter defines the expressions examination-inchief, cross and re-examination while s. 138 stipulates the
order of examinations.It is trite that evidence within the
meaning of the Evidence Act and so also within the
meaning of s.244 of the Cr.P.C. is what is recorded in the
manner stipulated u/s 138 in the case of oral evidence.
[para 13-15] [67-A-B, F-G; 68-D]
1.4. Under s.246, Cr.P.C., 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

## Text

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SUNIL MEHTA & ANR.
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No. 327 of 2013)
FEBRUARY 20, 2013
[T.S. THAKUR AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
ss. 244 and 246 - Evidence for purposes of framing of
charge in a complaint case - Plea of complainant that
evidence adduced under Chapter XV be treated as evidence
for purposes of framing of charge - Held: Is untenable - In a
criminal case, using a statement of a witness at the trial,
without affording to accused an opportunity to cross-examine,
is tantamount to condemning him unheard - The process
under Chapter XV is conducted in the absence of accused,
whereas evidence within the meaning of Evidence Act and
so also within the meaning of s.244, Cr.P.C. is what is
recorded in the manner stipulated u/s 138 of Evidence Act -
The whole object underlying recording of evidence u/s 244
after accused has appeared, is to ensure that not only does
the accused have opportunity to hear the evidence adduced
against him, but also to defend himself by cross-examining
the witnesses - Evidence Act, 1872 - ss. 3 and 138.
In the instant appeal filed by the accused, the
question for consideration before the Court was: whether
depositions of the complainant and his witnesses
recorded under Chapter XV of the Code of Criminal
Procedure, 1973 before cognizance was 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.
[2013] 2 S.C.R. 56
56
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SUNIL MEHTA & ANR. v. STATE OF GUJARAT &
ANR.
Allowing the appeal, the Court
HELD: 1.1. 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. [para 17] [69D-E]
1.2. The schemes of Chapters XV and XIX of the
Code are totally different from each other. 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. There is 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. [para 12] [65-GH; 66-A-D]
1.3. The expression "Magistrate shall proceed to hear
the prosecution and take all such evidence as may be
produced in support of the prosecution" appearing in
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s.244 refers to evidence within the meaning of s.3 of the
Indian Evidence Act, 1872. Chapter X of the Evidence Act
deals with examination of witnesses and s 137 appearing
in that Chapter defines the expressions examination-inchief, cross and re-examination while s. 138 stipulates the
order of examinations.It is trite that evidence within the
meaning of the Evidence Act and so also within the
meaning of s.244 of the Cr.P.C. is what is recorded in the
manner stipulated u/s 138 in the case of oral evidence.
[para 13-15] [67-A-B, F-G; 68-D]
1.4. Under s.246, Cr.P.C., 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
which such Magistrate is competent to try and
adequately punish. Evidence referred to in ss. 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.
[para 11 and 16] [65-C; 68-E-F]
1.5. Besides, because evidence under Part B of
Chapter XIX of the Code has to be recorded in the
presence of the accused and if a right of crossexamination 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 u/s 244
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 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
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SUNIL MEHTA & ANR. v. STATE OF GUJARAT &
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value or that it does not incriminate him. Section 245 of
the Code empowers the Magistrate to discharge the
accused if, upon taking of all the evidence referred to in
s. 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 the accused,
can be decided only when he is allowed to crossexamine 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 u/s 245 of the Code.
[para 17] [68-G-H; 69-A-C]
1.7. Further, because the right of cross-examination
granted to an accused u/ss 244 to 246 even before
framing of the charges does not, in the least, cause any
prejudice to the complainant or result in any failure of
justice, while denial of such a right is likely and indeed
bound to prejudice the accused in his defence. The fact
that after the court has found a case justifying framing
of charges against the accused, he has a right to crossexamine the prosecution witnesses u/s 246(4) does not
necessarily mean that such a right cannot be conceded
to him before the charges are framed or that Parliament
intended to take away any such right at the pre-charge
stage. [para 18] [69-E-H]
Ajoy Kumar Ghose v. State of Jharkhand and Anr. 2009
(4) SCR 515 = (2009) 14 SCC 115 - relied on
Sambhaji Nagu Koli v. State of Maharashtra 1979 Cri LJ
390 (Bom); and Harinarayan G. Bajaj v. State of Maharashtra
& Ors. 2010 (1) SCR 171 = (2010) 11 SCC 520 - referred
to.
Case Law Reference:
2009 (4) SCR 515
relied on
para 5
1979 Cri LJ 390 (Bom)
referred to
Para 20
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2010 (1) SCR 171
referred to
Para 22
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 327 of 2013.
From the Judgment & Order dated 21.11.2011 of the High
Court of Gujarat at Ahmedabad in Special Criminal Application
No. 1917 of 2011.
Ranjit Kumar, Uday B. Dube, R.R. Deshpande for the
Appellants.
U.U. Lalit, Ajay Kumar, Chetan Pandaya, Krithika Raghvan
Hemantika Wahi for the Respondents.
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. The short question that falls for our determination in this
appeal is whether depositions of the complainant and his
witnesses recorded under Chapter XV of the Code of Criminal
Procedure, 1973 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 said
Code. The question arises in the following backdrop:
3. A complaint alleging commission of offences punishable
under Sections 406, 420 and 114 read with Section 34 of the
Indian Penal Code, 1860 was filed by respondent No.2Company before the Chief Judicial Magistrate, Gandhi Nagar,
Gujarat. The Magistrate upon examination of the complaint
directed an enquiry in terms of Section 156(3) of the Cr.P.C.
by the jurisdictional police station. The report received from the
police suggested that the dispute between the parties was of
a civil nature in which criminal proceedings were out of place.
The Chief Judicial Magistrate was not, however, satisfied with
the police enquiry and the conclusion, and hence conducted an
enquiry in terms of Section 202 of the Cr.P.C. and issued
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process against the appellants for offences punishable under
Sections 406 read with 114 IPC.
4. Aggrieved, the appellants unsuccessfully questioned the
summoning order before the High Court in Criminal Misc.
Application No.10173 of 2010. Inevitably the matter came up
before the trial Court under Section 244 of the Cr.P.C. where
the accused appeared pursuant to the summons issued by the
Court. Instead of adducing evidence in support of the
prosecution as mandated by Section 244, the complainant filed
a pursis (memo) stating that he did not wish to lead any
additional evidence and that the evidence submitted along with
the complaint may be considered as evidence for purposes of
framing of the charge. The Magistrate took the pursis on record
and fixed the case for arguments on framing of charges. The
appellants' case is that written submissions filed by them before
the Magistrate raised a specific contention that no charge could
be framed against them as the complainant had not led any
evidence in terms of Section 244 of the Code and that the
depositions recorded before the Magistrate under Section 202
of the Cr.P.C. could not be considered as evidence for the
purposes of framing of charges. The Magistrate, however,
brushed aside that contention and framed charges against the
appellants under Sections 406 and 420 read with Section 34
of the IPC.
5. Aggrieved by the order passed by the Magistrate, the
appellants preferred Criminal Revision Application No.56 of
2011 before the Sessions Judge at Gandhi Nagar who allowed
the same by his order dated 18th July, 2011 primarily on the
ground that non-compliance with the provisions of Section
245(2) of the Cr.P.C. rendered the order passed by the
Magistrate unsustainable. The Sessions Judge accordingly
remitted the matter back to the trial Court with a direction to
proceed in accordance with the provisions of Sections 244 to
247 of the Code keeping in view the decision of this Court in
Ajoy Kumar Ghose v. State of Jharkhand and Anr. (2009) 14
SCC 115.
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6. Undeterred by the revisional order the respondentcompany filed Special Criminal Application No.1917 of 2011
before the High Court of Gujarat at Ahmedabad which
application has been allowed by the High Court in terms of the
order impugned before us. The High Court observed:
"In the facts of the case, it is not that the witnesses of the
complainant have not been examined, therefore, the
evidence has been recorded. Therefore, at that stage the
opportunity was available with the accused as provided
under law to cross examine the witnesses, however, it is
not availed of by exercising the right of cross examination.
It cannot be said that the procedure, as required, is not
followed. Therefore, the observation made by the learned
Sessions Judge relying on this judgment are
misconceived."
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 Cr.P.C. 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 cross-examine 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
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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 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 proceeding. 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 Magistrates. 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
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prosecution" once the accused appears or is brought before
him. 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. Subsection (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. That provision may
at this stage be extracted:
"246. Procedure where accused is not discharged -
(1) If, when such evidence has been taken, or at any
previous stage of the case, the Magistrate is of opinion
that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which
such Magistrate is competent to try and which, in his
opinion, could be adequately punished by him, he shall
frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the
accused, and he shall be asked whether he pleads guilty
or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record
the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or
claims to be tried or if the accused is not convicted under
sub-section (3), he shall be required to state, at the
commencement of the next hearing of the case, or, if the
Magistrate for reasons to be recorded in writing so thinks
fit, forthwith, whether he wishes to cross-examine any, and,
if so, which, of the witnesses for the prosecution whose
evidence has been taken.
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(5) If he says he does so wish, the witnesses named by
him shall be recalled and, after cross-examination and reexamination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the
prosecution shall next be taken, and after crossexamination and re-examination (if any), they shall also be
discharged."
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 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
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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.
13. Mr. U.U. Lalit, learned senior counsel appearing for the
respondent-complainant strenuously argued that Section 244
does not envisage, leave alone provide for in specific terms,
cross-examination of witnesses produced by the prosecution
by the accused. He submitted that since the provision of Section
244 did not recognise any such right of an accused before
framing of charges, it did not make any difference whether the
Court was evaluating evidence adduced at the stage of
cognizance and summoning of the accused or that adduced
after he had appeared before the Magistrate under Section
244. He particularly drew our attention to sub-section (4) to
Section 246 which requires the Magistrate to ask the accused
whether he wishes to cross-examine any, and if so, which of
the witnesses for the prosecution whose evidence has been
taken. It was contended by Mr. Lalit that the provision of subsection (4) to Section 246 provides for cross-examination by
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the accused only after charges have been framed and not
before. There is, in our opinion, no merit in that contention which
needs to be noticed only to be rejected. We say so for reasons
more than one. In the first place, the expression "Magistrate
shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution"
appearing in Section 244 refers to evidence within the
meaning of Section 3 of the Indian Evidence Act, 1872. Section
3 reads as under:
3. Interpretation clause -
 In this Act the following words and expressions are used
in the following senses, unless a contrary intention appears
from the context:-
xx xx xx
"Evidence".-"Evidence" means and includes-
(1) all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters of
fact under inquiry,
such statements are called oral evidence;
(2) all documents including electronic records produced for
the inspection of the Court,
such documents are called documentary evidence."
14. We may also refer to Chapter X of the Evidence Act
which deals with examination of witnesses. Section 137
appearing in that Chapter defines the expressions
examination-in-chief, cross and re-examination while Section
138 stipulates the order of examinations and reads as under:
"138. Order of examinations.- Witnesses shall be first
examined-in-chief, then (if the adverse party so desires)
cross-examined, then (if the party calling him so desires)
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re-examined.
The examination and cross-examination must relate to
relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his
examination-in-chief.
Direction of re-examination.- The re-examination shall be
directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the
Court, introduced in re-examination, the adverse party may
further cross-examine upon that matter."
15. It is trite that evidence within the meaning of the
Evidence Act and so also within the meaning of Section 244
of the Cr.P.C. is what is recorded in the manner stipulated
under Section 138 in the case of oral evidence. Documentary
evidence would similarly be evidence only if the documents are
proved in the manner recognised and provided for under the
Evidence Act unless of course a statutory provision makes the
document admissible as evidence without any formal proof
thereof.
16. 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 crossexamine the witnesses concerned.
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 after
the accused has appeared is to ensure that not only does the
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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. 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 crossexamine 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
cross-examination. 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.
18. Thirdly, because the right of cross-examination granted
to an accused under Sections 244 to 246 even before framing
of the charges does not, in the least, cause any prejudice to
the complainant or result in any failure of justice, while denial
of such a right is likely and indeed bound to prejudice the
accused in his defence. The fact that after the Court has found
a case justifying framing of charges against the accused, the
accused has a right to cross-examine the prosecution
witnesses under Section 246(4) does not necessarily mean that
such a right cannot be conceded to the accused before the
charges are framed or that the Parliament intended to take
away any such right at the pre-charge stage.
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19. We are supported in the view taken by us by the
decision of this Court in Ajoy Kumar Ghose (supra). That was
a case where the trial Court had framed charges against the
accused without the prosecution having any evidence
whatsoever in terms of Section 244 of the Cr.P.C. This Court
held that the procedure adopted by the trial Court was not
correct because the language of Section 246(1) Cr.P.C. itself
sufficiently indicated that charges have to be framed against
the accused on the basis of some evidence offered by the
complainant at the stage of Section 244(1). This Court
observed:
"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) Cr.P.C., 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 Cr.P.C.
by the prosecution, the Magistrate has to consider the
same, and if he is convinced, the Magistrate can frame the
charge."
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 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 Cr.P.C. also, the phraseology is "if,
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when such evidence has been taken", meaning thereby,
a clear reference is made to Section 244 Cr.P.C. 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 1968 Cri LJ 303
(AP)."
21. More importantly, this Court recognised the right of
cross-examination as a salutary right to be exercised by the
accused when witnesses are offered by the prosecution at the
stage of Section 244(1) of the Code and observed:
"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.P.C. 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."
22. In Harinarayan G. Bajaj v. State of Maharashtra & Ors.
(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 cross-examination that the
accused could show to the Court that there was no need for a
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trial against him and that the denial of the right of crossexamination 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 crossexamine 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,
Cr. P.C. the accused has a right to cross-examine the
witnesses and in the matter of Section 319, Cr.P.C. 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 re-heard
and then there would be such a right. Merely presenting
such witnesses for cross-examination 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
particularly in error in holding that the appellant had an
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opportunity to cross-examine 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.
R.P.
Appeal allowed.