Code
of Criminal Procedure, 1973: Sections 244, 245, 246 - Official complaint from
Registrar General of High Court stating that the accused persons were guilty of
using a fabricated and forged letter in the court with active connivance and
conspiracy on their part - Summons issued - Application under s.245(2) Cr.P.C.
rejected - Charges framed - Correctness of - Held: The charges framed clearly
premature - There should be evidence before framing the charges - Opportunity
to cross examine is lost - Order framing the charge quashed - Matter to go back
to Trial Court - Prosecution to offer witnesses under s.244(1) Cr.P.C. and
opportunity to cross-examine - Only thereafter Trial Court would proceed to
decide as to whether the charges to be framed or not - Penal Code, 1860,
Sections 177, 181, 182, 192, 196, 199, 209, 466, 468, 471, 474. The Registrar
General of High Court made a complaint to the effect that the accused persons
were guilty of using a fabricated and forged letter in the court with active
connivance and conspiracy on their part. The CJM took cognizance of the
complaint and ordered issue of summons. Accused approached the High Court by
way of writ petition and it was dismissed. SLP was filed in Supreme Court and
it was dismissed as premature. Appellant thereafter appeared before the CJM,
obtained bail and moved an application for discharge. The trial court dismissed
the application and proceeded to frame charges. Appellant approached the High
Court by filing a writ petition which was dismissed. Hence the appeal.
2009( March. Part ) http://judis.nic.in/supremecourt/filename=34080
TARUN CHATTERJEE, V.S. SIRPURKAR
1
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.485 OF 2009
(Arising out of SLP (CRL.) No.5196 of 2006)
AJOY KUMAR GHOSE .... APPELLANT
Versus
STATE OF JHARKHAND & ANR. .... RESPONDENTS
JUDGMENT
V.S.SIRPURKAR, J.
1. Leave granted.
2. A judgment passed by the High Court of Jharkand, Ranchi,
dismissing the writ petition and confirming the order of the Trial Court,
refusing to discharge the accused-appellant, is in challenge here.
3. The appellant Ajoy Kumar Ghosh, along with some others, is facing
prosecution for the offences under Sections 177, 181, 182, 192, 196, 199,
209, 466, 468, 471 and 474 of the Indian Penal Code (hereinafter referred
to as `IPC' for short), before the Chief Judicial Magistrate, Ranchi. These
charges are based on an official complaint filed by the Registrar General,
Patna High Court against these accused persons including the present
2
appellant, who, at the relevant time was Director, Indian School of Mines,
Dhanbad. In the said complaint it is, inter alia, contended:
(i) That one Shri M.S. Chhabra, who was the Assistant
Professor in the Indian School of Mines, Dhanbad, was
proceeded against for misconduct and accordingly punishment
of compulsory retirement was imposed on him.
(ii) Indian School of Mines, Dhanbad, a registered Society,
is a deemed university governed by the Rules & Regulations
and bye-laws of the School. In the matter of classification and
method of appointment and terms and conditions of service for
academic staff, Rules are framed with the approval of the
Central Government. Rule 4 of the Rules & Regulations
prescribes the constitution of General Council. The
classification and method of appointment are governed by the
bye-laws. Selection to the post of Assistant Professor is
governed by Clause 38(b), while suspension and penalties are
governed by Clauses 10 and 11 of the said bye-laws. Appeal
is provided against the same under Rule 12. It is further stated
in the complaint that the Council is defined under Clause 2(b)
of the said bye-laws and means a General Council constituted
under Rule 4 of the Rules & Regulations.
(iii) That Shri M.S.Chhabra, after being found guilty, was
awarded the punishment of compulsory retirement and he
preferred an appeal to the General Council against the
imposed penalty, which appeal was disallowed. Shri
M.S.Chhabra, therefore, filed CWJC No.678/92(R) for
quashing the said order. However, even that was disposed of
3
by the High Court with a direction to the General Council of the
School to give personal hearing to the appellant/petitioner and
to dispose of the appeal thereafter. Against this order of the
High Court, the Chairman, Director-in-Charge and Acting
Registrar, namely, Shri B.K. Rao, Shri A.K. Ghosh and Shri M.
Ramakrishna, respectively, preferred an appeal in Supreme
Court, which directed expeditious decision within three months
after the fresh appeal was filed by Shri M.S. Chhabra.
However, since the appeal was not disposed of, Shri
M.S.Chhabra filed another writ petition which was registered as
CWJC No.2932/92(R) and alleged therein that on 31.03.1989,
no Head of the Department was the member of the General
Council and without observing the procedure of amendment to
the Rules as laid down under Section 23, mischievous efforts
had been made by the Chairman, Director and the Registrar
for getting new sets of Rules registered under the Societies
Registration Act. He further alleged that services of one Shri
A.K. Singh, Estate-cum-Security Officer were availed of for
liaison work and thus the amendment was without the
resolution of the General Council and without the approval of
the Government of India, in which Heads of Department as
member of the General council were included and that
resolution of the General Council for revised Memorandum of
Association and Rules & Regulations were made to appear as
if they were registered with the Inspector General of
Registration, Patna on 18.06.1992. He further stated that the
Chairman, Director and the Registrar, by indulging in the case
maliciously, were acting under utter violation of procedure laid
down under Section 23 of the Societies Registration Act.
4
(iv) That the counter affidavit had been filed to this writ
petition by Shri M. Ramakrisha, S/o Shri M. Subbarao on
behalf of the respondents in his alleged capacity of Acting
Registrar. In para 37 of the said counter affidavit, the
contention made by Shri M.S.Chhabra in paras 69 to 77 of the
writ petition were denied and it was asserted that in view of the
subsequent amendments made in the Rules & Regulations of
the School, which were ratified by the Inspector General of
Registration, the necessary amendments were made in the
Rules & Regulations of the School and that was prior to the
sitting of the General Council meeting dated 11.06.1992. A
certificate to that effect was obtained from the office of the
Inspector General of Registration, Patna, Bihar and the letter
issued by the Inspector General, Registration was enclosed as
Annexure-A to the counter affidavit. The said letter dated
09.06.1992 was allegedly issued by one Shri Vikas Prasad,
Assistant Inspector General of Registration, Patna, Bihar.
(v) That Shri M. Ramakrishna had, in his counter affidavit
stated that the contents of para 37, which have been quoted
above, were based on information derived from the records of
the case.
(vi) That the Writ Application was disallowed by the Division
Bench of the Patna High Court by its judgment and order dated
05.04.1994, against which a special leave petition came to be
filed before Supreme Court wherein the Court went into the
issue raised by the appellant/petitioner with regard to the
genuineness of the letter dated 09.06.1992, purported to have
been written by Shri Vikas Prasad and enclosed as Annexure-
A with the counter affidavit filed by Prof. M. Ramakrishna.
5
(vii) That a notice was sent to one Shri Vikram Prasad,
Assistant Inspector General of Registration, who, however, filed
an affidavit disclosing that the said letter was a forged
document. Therefore, Supreme Court had directed to take
action under the provisions of Section 340 of the Criminal
Procedure Code with respect to that letter.
(viii) That in compliance of the order of Supreme Court, the
complaint was being filed, for which first a notice was issued
under Section 340, Cr.P.C. by Patna High Court and during the
course of inquiry, it was found:
(a) That the letter bearing No.1206 dated 09.06.1992
was forged and fabricated and was never issued from
the office of the Inspector General of Registration.
(b) That the said letter which was produced in the
Court and used in the writ petition CWJC No.2932/92
(R) in the counter affidavit dated 21.01.1993 was filed by
Shri M. Ramakrishna.
(c) Shri S.K. Das, Section Officer in the Office of the
Inspector General of Registration was found to have
delivered that letter to Shri A.K. Singh, Estate-cum-
Security Officer.
(d) That Shri A.N. Tripathi, who was the Assistant
Registrar (Establishment) of the School at the relevant
time, was dealing with the writ and was acquainted with
the facts and circumstances of the case.
(e) Shri A.K. Ghosh, the present petitioner was, at
the relevant time Director of the School and in that
capacity he was found to be fully involved and in the
know of all concerned material.
(f) Shri Vikram Prasad, Assistant Inspector
General of Registration, had filed an affidavit in the
Supreme Court as also in the High Court to the
6
effect that the letter was not issued by him, but till
the last date of inquiry, he did not take a clear stand
that the signature bearing a letter was not his
signature.
(ix) That all the accused persons were guilty of using a
fabricated and forged letter in the Court of law with active
connivance and conspiracy on their part.
4. Cognizance was taken on the basis of this complaint by an order
dated 20.08.1999 and summons were ordered to be issued by the CJM,
Ranchi.
5. There are some events which took place before the cognizance was
taken, for example, on 06.03.1998, Shri M.S. Chhabra had handed over an
application which was purportedly an application under Section 340 of the
Code of Criminal Procedure (hereinafter referred to as "Cr.P.C." for short)
The High Court accepted that application on the same day and directed
that a notice be issued to the respondents including the present appellant
by the Registry for their appearance before the Court on 02.04.1998. This
order was challenged by the Indian School of Mines and some other
persons including the present appellant by way of a Special Leave Petition
in this Court whereupon this Court disposed it of as being premature. It
was observed that the petitioners, instead of giving reply to the notice in the
High Court, had rushed through a Special Leave Petition and, therefore,
this Court did not find it a fit case to interfere.
7
6. The appellant thereafter filed reply to the show cause notice issued
by the Patna High Court under Section 340 Cr.P.C. on 12.04.1999 wherein
the appellant denied that he had any knowledge about the aforementioned
document dated 09.06.1992. The Division Bench of the High Court at
Patna, by its order dated 16.07.1999 straightaway discharged the
Chairman of the Governing Council, Shri B.K. Rao and two other members
of the Governing Council, viz., Shri B.B. Dhar and Shri K. Paul. However,
the Court directed filing of complaint against the appellant who was also a
member of the Governing Council, since he happened to be the Acting
Director of the Indian School of Mines, Dhanbad, at the relevant time. The
High Court, however, included in the array of accused, Shri Vikram Prasad,
Assistant Inspector General of Registration, Bihar who was a signatory to
the letter dated 09.06.1992.
7. As has been stated earlier, the complaint came to be filed by the
Registrar of Patna High Court on 09.08.1999 wherein cognizance was
taken by CJM, Ranchi. The appellant thereafter filed Special Leave
Petition No.16037/1999 before this court against the order dated
16.07.1999 passed by the Patna High Court, wherein three other persons
were discharged while complaint was directed to be filed against some
others, including the appellant. This Court issued notice on 19.11.1999.
However, on 17.04.2001, this court dismissed the aforesaid Special Leave
Petition but permitted the appellant to raise all contentions in the Trial
8
Court including the right to plead for discharge and also granted
anticipatory bail to him. The order passed by this Court is as under:
"We permit the petitioners to raise all their contentions in the
trial court including the right to plea for discharge. If petitioner
would appear and apply for bail before the trial Court they shall
be released on bail on executing a bond for such sum as may
be fixed by that court with or without sureties. Accordingly,
special leave petitions are dismissed."
8. The appellant accordingly appeared before the CJM, Ranchi on
11.07.2005 and obtained bail. Thereafter, he moved an application for
discharge on the same date. However, the Trial Court dismissed the
discharge application in limine and proceeded to frame charges against the
petitioner. The petitioner, therefore, filed a Writ Petition (Crl.) No.315/2005,
challenging the order dismissing discharge application and the order
framing charge, before the High Court of Jharkhand at Ranchi which was
dismissed on 03/07.07.2006, necessitating the filing of present Special
Leave Petition.
9. In the impugned order, the High court quoted the judgment passed
by the Patna High Court dated 16.07.1999 and observed that the letter
dated 09.06.1992 was found to be forged and fabricated in the inquiry
instituted by the Department and, therefore, offence under Section 195(1)
(b) Cr.P.C. appeared to have been committed in respect of that letter. The
High Court came to the conclusion that since the Division Bench of the
9
Patna High Court, by its earlier elaborate judgment, had clearly found, on
the basis of evidence on record, that the appellant was well aware of filing
of such counter affidavit in which a forged letter was used before the Court
on behalf of Indian School of Mines, it could not be said that the allegations
against the appellant were based on mere suspicion. It further recorded a
finding that documentary evidence was sufficient to frame charge against
the appellant. It is this judgment of the Patna High Court, which has fallen
for our consideration.
10. Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of
the appellant firstly urged that there was no material whatsoever against
the appellant who, at the relevant time, was the Acting Director of the
Indian School of Mines, Dhanbad. He referred to the earlier order passed
by this Court and pointed out that this Court had given the liberty to the
appellant to file the discharge application and it was in terms of that order
that the application was filed. The further argument of Shri Ranjit Kumar is
that neither the Trial Court nor the High Court had considered the
questions raised in the discharge application. He pointed out on merits
that it was not the appellant who authored the aforementioned letter dated
09.06.1992, nor had the appellant sworn or filed the affidavit before the
High Court, of which the alleged letter was part, since that affidavit was
sworn by Shri M. Ramakrishna. He argued that the appellant had not even
taken any advantage from the letter dated 09.06.1992. He further argued
10
that in spite of the order of this Court, specifically granting liberty to the
appellant to file a discharge application, the Division Bench of the Patna
High Court did not go into the aspect of discharge at all. Learned Senior
Counsel, by way of his legal submissions, urged that at the time when the
inquiry under Section 340 Cr.P.C. was ordered in relation to the alleged
forgery of the letter dated 09.06.1992, the provisions of law with reference
to the forgery of document contemplated under Section 195(1) (b) Cr.P.C.
and related Sections did not make a distinction between forgery being
committed outside the Court and while the document was custodia legis.
The learned counsel heavily relied upon a decision of this Court reported
as Iqbal Singh Marwah & Anr. V. Meenakshi Marwah & Anr. [2005 (4)
SCC 370] wherein this Court had held that proceeding under Section 340
read with Section 195 Cr.P.C. could only be initiated if the forgery was
committed during the time when the documents were custodia legis and
not when the forgery was committed outside the Court i.e. before the
document had been produced or given in evidence in a proceeding in any
Court. He, therefore, urged that there could not be any initiation of
proceedings under Section 340 Cr.P.C. much less for the offences under
Section 195 Cr.P.C. and the other allied offences because, admittedly, the
forgery was not committed in respect of the document dated 09.06.1992
when the letter was custodia legis. Learned counsel also invited our
attention to the earlier order passed by the High Court wherein three other
11
accused were discharged, who were similarly circumstanced as the
appellant herein.
11. As against this, it was urged on behalf of respondent No.2 that the
High Court was correct in rejecting the petition of the petitioner/appellant
and in refusing discharge from the prosecution. Learned counsel urged
that there was enough material with the complainant and it was clear that
the appellant was aware of the aforementioned forgery and he was party to
the conspiracy of using forged letter.
12. There can be no doubt that in the present case, this Court had
specifically granted liberty to the appellant to file a discharge application.
We have quoted that order of this Court in para 7 of this judgment.
Accordingly, the appellant filed a discharge application in the Trial Court,
where the trial was pending, contending therein that there was no material
available even for framing the charge. It was specifically pleaded in the
said application that the said discharge was being sought for under sub-
Section (2) of Section 245 Cr.P.C.
13. 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
12
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, he 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.
13
14. 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. It is after all this, evidence is
taken, then the Magistrate has to consider under Section 245(1) Cr.P.C.,
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) 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. Of course, under Section 245(2) Cr.P.C., a
Magistrate can discharge the accused at any previous stage of the case,
if he finds the charge to be groundless.
14
15. Essentially, the applicable Sections are Section 244 and 245
Cr.P.C., 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) Cr.P.C. or to summon its witnesses under Section
244(2) Cr.P.C. This did not happen and instead, the accused proceeded to
file an application under Section 245(2) Cr.P.C., on the ground that the
charge was groundless.
16. 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.
17. 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 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
15
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 bring out this position. It will
be better to see what is that "previous stage".
18. 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. Under Section 200, after taking cognizance, the Magistrate
examines the complainant or such other witnesses, who are present. Such
examination of the complainant and his witnesses is not necessary, where
the complaint has been made by a public servant in discharge of his official
duties or where a Court has made the complaint or further, if the Magistrate
makes over the case for inquiry or trial to another Magistrate under Section
192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent
to take the cognizance of the case, he would return the complaint for
presentation to the proper Court or direct the complainant to a proper
Court. Section 202 Cr.P.C. deals with the postponement of issue of
process. Under sub-Section (1), he may direct the investigation to be
made by the Police officer or by such other person, as he thinks fit, for the
purpose of deciding whether or not there is sufficient ground for
proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given
such a direction for such an investigation, where he finds that offence
16
complained of is triable exclusively by the Court of sessions. Under
Section 202(1)(b) Cr.P.C., no such direction can be given, where the
complaint has been made by the Court. Under Section 203 Cr.P.C., the
Magistrate, after recording the statements on oath of the complainant and
of the witnesses or the result of the inquiry or investigation ordered under
Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no
sufficient ground for proceeding. On the other hand, if he comes to the
conclusion that there is sufficient ground for proceeding, he can issue the
process under Section 204 Cr.P.C. He can issue summons for the
attendance of the accused and in a warrant-case, he may issue a warrant,
or if he thinks fit, a summons, for securing the attendance of the accused.
Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for
our purpose. 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. 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) Cr.P.C., where the Magistrate takes up the task of
considering on all the evidence taken under Section 244(1) Cr.P.C., and if
he comes to the conclusion that no case against the accused has been
17
made out, which, if unrebutted, would warrant the conviction of the
accused, the Magistrate proceeds to discharge him. The situation under
Section 245(2) Cr.P.C., 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 Cr.P.C.
and till the completion of the evidence of prosecution 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.
19. In the present case, the Magistrate did not dismiss the complaint
under Section 203 Cr.P.C. However, since this was a complaint made by
the Court, there was no question of examining complainant or any of his
witnesses under Section 200 Cr.P.C. Further, there was no question of
even issuing any direction for investigation under Section 202 Cr.P.C.,
since the complaint was made by the Court. This is clear from the
wordings of Section 202(1) Cr.P.C. It is as under:-
"202(1) ...........
Provided that no such direction for investigation
shall be made-
(a) x x x x x
18
(b) where the complain has not been made by
a Court, unless the complainant and the
witnesses present (if any) have been
examined on oath under Section 200."
We have already pointed out that since this was a complaint made
by the Court, therefore, there would be no question of there being any
examination of complainant or his witnesses on oath. As has already been
stated earlier, the Magistrate simply issued the process under Section 204
Cr.P.C. When the accused appeared in pursuance to the summons sent to
him, under Section 244 Cr.P.C., the defence came out with an application.
There can be no difficulty that the discharge application was perfectly in
order at that stage. Therefore, what was available before the Magistrate
besides this discharge application was, a bare complaint. There was
absolutely nothing beyond the complaint available, for the Magistrate to
consider the framing of charge. The Magistrate could, undoubtedly, have
proceeded under Section 245(2) Cr.P.C., on the basis of discharge
application and discharge him. However, he would have been required to
give reasons for discharging at that stage, when no evidence or no
material, whatsoever, was available with him, excepting a bare complaint.
20. The Magistrate, in this case, not only dismissed the application, but
also proceeded to frame the charge, which order was also in challenge in
the Writ Petition filed before the Division Bench. We have now to see as to
whether the Magistrate was justified in dismissing the discharge application
19
and then straightaway to frame a charge under Section 246(1) Cr.P.C. If
under Section 245(2) Cr.P.C., there could be a discharge at any previous
stage which we have discussed about, there is a necessary sequel, an
application could also be made at that stage. The Magistrate has the
power to discharge the accused under Section 245(2) Cr.P.C. at any
previous stage, i.e., before the evidence is recorded under Section 244(1)
Cr.P.C., which seems to be the established law, particularly in view of the
decision in Cricket Association of Bengal & Ors. Vs. State of West
Bengal & Ors. reported in 1971 (3) SCC 239, as also the subsequent
decision of the Bombay High Court in Luis de Piedade Lobo Vs.
Mahadev reported in 1984 Criminal Law Journal 513. The same
decision was followed by Kerala High Court in Manmohan Malhotra Vs.
P.M. Abdul Salam & Anr. reported in 1994 Criminal Law Journal 1555
and Hon'ble Justice K.T. Thomas, as the Learned Judge there was,
accepted the proposition that the Magistrate has the power under Section
245(2) Cr.P.C. to discharge the accused at any previous stage. The
Hon'ble Judge relied on a decision of Madras High Court in Mohammed
Sheriff Vs. Abdul Karim reported in AIR1928 Madras 129, as also the
judgment of Himachal Pradesh High Court in Gopal Chauhan Vs. Smt.
Satya reported in 1979 Criminal Law Journal 446. We are convinced
that under Section 245(2) Cr.P.C., the Magistrate can discharge the
accused at any previous stage, i.e., even before any evidence is recorded
under Section 244(1) Cr.P.C. In that view, the accused could have made
20
the application. It is obvious that the application has been rejected by the
Magistrate. So far, there is no difficulty.
21. However, the real difficulty arises in the Trial Court's proceeding to
frame the charge under Section 246 Cr.P.C. It is obvious that at that stage
of framing a charge in this case, no material, whatsoever, was available
with the Trial Court, excepting the complaint, which was also not supported
by any statement on oath, by the complainant or any of his witnesses,
which ordinarily are recorded at the stage of Section 200 Cr.P.C. In this
case, since the complaint was by the Court, no such statement came to be
recorded, of the complainant or any of his witnesses present. Here also,
the Trial Court has committed no mistake. Again, the Trial Court has also
not made any mistake in issuing the process, if the Trial Court felt that
there was a ground for proceeding. The real question, which comes,
however, is as to how after rejecting the application made by the accused
under Section 245(2) Cr.P.C., the Trial Court straightaway proceeded to
frame the charge.
22. The charge is framed under Section 246(1) Cr.P.C., which runs as
under:-
"246(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."
21
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. Now here, there is, however, one grey area.
Section 246(1) Cr.P.C. is very peculiarly worded. The said grey area is on
account of phrase "or at any previous stage of the case". The question
is as to whether, even before any evidence is led under Section 244
Cr.P.C., can the Magistrate straightaway proceed to frame a charge. The
debate on this question is not new, though there is no authoritative
pronouncement of this Court, on that issue. There are cases, where the
High Courts have specifically taken a view that the phrase does not
empower the Magistrate to frame any charge in the absence of any
evidence, whatsoever. It must be, at this stage, borne in mind that the
word used in Section 246 Cr.P.C. is "evidence", so also, in Section 244
Cr.P.C., the word used is "evidence". Therefore, ordinarily, the scheme of
the Section 246 Cr.P.C. is that, it is only on the basis of any evidence that
the Magistrate has to decide as to whether there is a ground to presume
that the accused has committed an offence triable under this Chapter.
22
23. Before we approach this question, we must note that while Section
245(2) Cr.P.C. speaks about the discharge of the accused on the ground
that the charge is groundless, Section 246(1) operates in entirely different
sphere. An order under Section 245(2) Cr.P.C. results in discharge of the
accused, whereas, an order under Section 246 Cr.P.C. creates a situation
for the accused to face a full-fledged trial. Therefore, the two Sections
would have to be interpreted in slightly different manner, keeping in mind
the different spheres, in which they operate. The words "or at any
previous stage of the case" appearing in Section 246 Cr.P.C. would
include Section 245 also, where the accused has not been discharged
under Section 245 Cr.P.C., while the similar term in Section 246(2) can
include the stage even before any evidence is recorded. It cannot,
therefore, be held that the words "at any previous stage of the case" as
appearing in Section 245 Cr.P.C., would have to be given the same
meaning when those words appear in Section 246 Cr.P.C.
24. The Bombay High Court, in a decision in Sambhaji Nagu Vs. State
of Maharashtra reported in 1979 Criminal Law Journal 390, has
considered the matter. While interpreting the words "at any previous
stage" under Section 246(1) Cr.P.C., the Learned Single Judge in that
case, came to the conclusion that the phraseology only suggested that the
Magistrate can frame charge, even before "all" the evidence is completed
under Section 244 Cr.P.C. Section 244 Cr.P.C. specifically mandates that
23
as soon as the accused appears or is brought before the Court, the
Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution. Further,
Section 245 Cr.P.C. also mandates that if upon taking all the evidence
referred to in Section 244 Cr.P.C., the Magistrate considers, for reasons to
be recorded, that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall discharge
him. In Section 246 Cr.P.C. also, the phraseology is "if, 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 Vs. Gulam Murthuza
reported in 1968 Criminal Law Journal 303. The similar view seems to
have been taken in T.K. Appu Nair Vs. Earnest reported in AIR 1967
Madras 262 and in re. M. Srihari Rao reported in AIR 1964 Andhra
Pradesh 226. The similar view has been expressed in P. Ugender Rao &
Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal
762, where it has been expressed that previous stage is a stage, after
recording some evidence. It is neither a stage before recording any
24
evidence at all nor a stage after recording the entire evidence, but is in
between. The interpretation, thus, placed on words "at any previous
stage of the case", occurring in Section 246(1) Cr.P.C. also appears to be
more in consonance with the order of the Sections numbered in the Code
and also with the heading given to Section 246 Cr.P.C., viz., "Procedure
where accused is not discharged". The very heading of the Section
even indicates that it would come into play only after the matter is
examined in the light of Section 245 Cr.P.C. and the accused is not
discharged thereunder. Therefore, it is incumbent upon the Magistrate to
examine the matter for purposes of considering the question whether the
accused could be discharged under Section 245 Cr.P.C. and it is only
when he finds it otherwise, he could have resort to Section 246 Cr.P.C.
25. The Learned Single Judge in this ruling has also noted another ruling
by the same High Court in Abdul Nabi Vs. Gulam Murthuza reported in
1968 Criminal Law Journal 303 (cited supra). We, therefore, find that
consistently, the view taken by the High Court is that there would have to
be some evidence before the charge is framed. In the last mentioned case
of P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990
Criminal Law Journal 762, there is one incorrect observation in respect of
a decision of this Court in Cricket Association of Bengal & Ors. Vs.
State of West Bengal & Ors. reported in 1971 (3) SCC 239 (cited supra)
to the effect that the Magistrate cannot discharge the accused before
25
recording any evidence, whatsoever, under Section 244 Cr.P.C. We have
not been able to find out such an expression in the aforementioned case of
Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors.
(cited supra). That was a case under old Section 253(2), which is pari
materia to the present Section 245(1). On the other hand, the Court has
very specifically stated therein that Section 253(2) gives ample jurisdiction
to the Magistrate to discharge the accused in the circumstances mentioned
therein and the order of discharge can be passed at any previous stage
of the case. It is further stated in Para 13 that sub-Section (1) under those
circumstances will not operate as a bar to the exercise of jurisdiction by the
Magistrate under sub-Section (2). Since we have found error in the above
mentioned judgment, we have mentioned so. However, the ruling in
Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors.
(cited supra) also supports our earlier finding that the Magistrate has the
power to discharge the accused, even before any evidence is recorded and
thus, an application for discharge at that stage is perfectly justifiable.
However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the
clear opinion that some evidence would have to be there for framing the
charge.
26. There is only one judgment of the Andhra Pradesh High Court in
Verendra Vs. Aashraya Makers reported in 1999 Criminal Law Journal
4206, which has taken the view that the Magistrate can frame the charge
26
even without any evidence having been taken under Section 244 Cr.P.C.
We do not think that is a correct expression of law, as the right of the
accused to cross-examine the witnesses at the stage of Section 244(1)
Cr.P.C. would be completely lost, if the view is taken that even without the
evidence, a charge can be framed under Section 246(1) Cr.P.C. 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. Unfortunately, the earlier cases of the
same Court, which we have referred to above, were brought to the notice
of the Learned Judge. 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.
27. 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
27
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) Cr.P.C. 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.
28. We are not expressing anything on merits, particularly because we
have directed the evidence of the prosecution to be led under Section 244
(1) Cr.P.C. Any expressions on our part are likely to cause prejudice to the
prosecution, as the case may be, accused. We are, therefore, leaving the
matter at this.
29. Accordingly, the appeal is disposed of with the direction that the
matter shall now go back to the Trial Court and the Trial Court shall
proceed to examine all the witnesses offered by the prosecution and it is
only after the evidence of those witnesses is recorded, that the Trial Court
would proceed to decide as to whether the charge is to be framed or not.
The appeal, thus, succeeds partly.
.................................................J.
[Tarun Chatterjee]
28
.................................................J.
[V.S. Sirpurkar]
New Delhi
March 18, 2009
29
2009( March. Part ) http://judis.nic.in/supremecourt/filename=34080
TARUN CHATTERJEE, V.S. SIRPURKAR
1
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.485 OF 2009
(Arising out of SLP (CRL.) No.5196 of 2006)
AJOY KUMAR GHOSE .... APPELLANT
Versus
STATE OF JHARKHAND & ANR. .... RESPONDENTS
JUDGMENT
V.S.SIRPURKAR, J.
1. Leave granted.
2. A judgment passed by the High Court of Jharkand, Ranchi,
dismissing the writ petition and confirming the order of the Trial Court,
refusing to discharge the accused-appellant, is in challenge here.
3. The appellant Ajoy Kumar Ghosh, along with some others, is facing
prosecution for the offences under Sections 177, 181, 182, 192, 196, 199,
209, 466, 468, 471 and 474 of the Indian Penal Code (hereinafter referred
to as `IPC' for short), before the Chief Judicial Magistrate, Ranchi. These
charges are based on an official complaint filed by the Registrar General,
Patna High Court against these accused persons including the present
2
appellant, who, at the relevant time was Director, Indian School of Mines,
Dhanbad. In the said complaint it is, inter alia, contended:
(i) That one Shri M.S. Chhabra, who was the Assistant
Professor in the Indian School of Mines, Dhanbad, was
proceeded against for misconduct and accordingly punishment
of compulsory retirement was imposed on him.
(ii) Indian School of Mines, Dhanbad, a registered Society,
is a deemed university governed by the Rules & Regulations
and bye-laws of the School. In the matter of classification and
method of appointment and terms and conditions of service for
academic staff, Rules are framed with the approval of the
Central Government. Rule 4 of the Rules & Regulations
prescribes the constitution of General Council. The
classification and method of appointment are governed by the
bye-laws. Selection to the post of Assistant Professor is
governed by Clause 38(b), while suspension and penalties are
governed by Clauses 10 and 11 of the said bye-laws. Appeal
is provided against the same under Rule 12. It is further stated
in the complaint that the Council is defined under Clause 2(b)
of the said bye-laws and means a General Council constituted
under Rule 4 of the Rules & Regulations.
(iii) That Shri M.S.Chhabra, after being found guilty, was
awarded the punishment of compulsory retirement and he
preferred an appeal to the General Council against the
imposed penalty, which appeal was disallowed. Shri
M.S.Chhabra, therefore, filed CWJC No.678/92(R) for
quashing the said order. However, even that was disposed of
3
by the High Court with a direction to the General Council of the
School to give personal hearing to the appellant/petitioner and
to dispose of the appeal thereafter. Against this order of the
High Court, the Chairman, Director-in-Charge and Acting
Registrar, namely, Shri B.K. Rao, Shri A.K. Ghosh and Shri M.
Ramakrishna, respectively, preferred an appeal in Supreme
Court, which directed expeditious decision within three months
after the fresh appeal was filed by Shri M.S. Chhabra.
However, since the appeal was not disposed of, Shri
M.S.Chhabra filed another writ petition which was registered as
CWJC No.2932/92(R) and alleged therein that on 31.03.1989,
no Head of the Department was the member of the General
Council and without observing the procedure of amendment to
the Rules as laid down under Section 23, mischievous efforts
had been made by the Chairman, Director and the Registrar
for getting new sets of Rules registered under the Societies
Registration Act. He further alleged that services of one Shri
A.K. Singh, Estate-cum-Security Officer were availed of for
liaison work and thus the amendment was without the
resolution of the General Council and without the approval of
the Government of India, in which Heads of Department as
member of the General council were included and that
resolution of the General Council for revised Memorandum of
Association and Rules & Regulations were made to appear as
if they were registered with the Inspector General of
Registration, Patna on 18.06.1992. He further stated that the
Chairman, Director and the Registrar, by indulging in the case
maliciously, were acting under utter violation of procedure laid
down under Section 23 of the Societies Registration Act.
4
(iv) That the counter affidavit had been filed to this writ
petition by Shri M. Ramakrisha, S/o Shri M. Subbarao on
behalf of the respondents in his alleged capacity of Acting
Registrar. In para 37 of the said counter affidavit, the
contention made by Shri M.S.Chhabra in paras 69 to 77 of the
writ petition were denied and it was asserted that in view of the
subsequent amendments made in the Rules & Regulations of
the School, which were ratified by the Inspector General of
Registration, the necessary amendments were made in the
Rules & Regulations of the School and that was prior to the
sitting of the General Council meeting dated 11.06.1992. A
certificate to that effect was obtained from the office of the
Inspector General of Registration, Patna, Bihar and the letter
issued by the Inspector General, Registration was enclosed as
Annexure-A to the counter affidavit. The said letter dated
09.06.1992 was allegedly issued by one Shri Vikas Prasad,
Assistant Inspector General of Registration, Patna, Bihar.
(v) That Shri M. Ramakrishna had, in his counter affidavit
stated that the contents of para 37, which have been quoted
above, were based on information derived from the records of
the case.
(vi) That the Writ Application was disallowed by the Division
Bench of the Patna High Court by its judgment and order dated
05.04.1994, against which a special leave petition came to be
filed before Supreme Court wherein the Court went into the
issue raised by the appellant/petitioner with regard to the
genuineness of the letter dated 09.06.1992, purported to have
been written by Shri Vikas Prasad and enclosed as Annexure-
A with the counter affidavit filed by Prof. M. Ramakrishna.
5
(vii) That a notice was sent to one Shri Vikram Prasad,
Assistant Inspector General of Registration, who, however, filed
an affidavit disclosing that the said letter was a forged
document. Therefore, Supreme Court had directed to take
action under the provisions of Section 340 of the Criminal
Procedure Code with respect to that letter.
(viii) That in compliance of the order of Supreme Court, the
complaint was being filed, for which first a notice was issued
under Section 340, Cr.P.C. by Patna High Court and during the
course of inquiry, it was found:
(a) That the letter bearing No.1206 dated 09.06.1992
was forged and fabricated and was never issued from
the office of the Inspector General of Registration.
(b) That the said letter which was produced in the
Court and used in the writ petition CWJC No.2932/92
(R) in the counter affidavit dated 21.01.1993 was filed by
Shri M. Ramakrishna.
(c) Shri S.K. Das, Section Officer in the Office of the
Inspector General of Registration was found to have
delivered that letter to Shri A.K. Singh, Estate-cum-
Security Officer.
(d) That Shri A.N. Tripathi, who was the Assistant
Registrar (Establishment) of the School at the relevant
time, was dealing with the writ and was acquainted with
the facts and circumstances of the case.
(e) Shri A.K. Ghosh, the present petitioner was, at
the relevant time Director of the School and in that
capacity he was found to be fully involved and in the
know of all concerned material.
(f) Shri Vikram Prasad, Assistant Inspector
General of Registration, had filed an affidavit in the
Supreme Court as also in the High Court to the
6
effect that the letter was not issued by him, but till
the last date of inquiry, he did not take a clear stand
that the signature bearing a letter was not his
signature.
(ix) That all the accused persons were guilty of using a
fabricated and forged letter in the Court of law with active
connivance and conspiracy on their part.
4. Cognizance was taken on the basis of this complaint by an order
dated 20.08.1999 and summons were ordered to be issued by the CJM,
Ranchi.
5. There are some events which took place before the cognizance was
taken, for example, on 06.03.1998, Shri M.S. Chhabra had handed over an
application which was purportedly an application under Section 340 of the
Code of Criminal Procedure (hereinafter referred to as "Cr.P.C." for short)
The High Court accepted that application on the same day and directed
that a notice be issued to the respondents including the present appellant
by the Registry for their appearance before the Court on 02.04.1998. This
order was challenged by the Indian School of Mines and some other
persons including the present appellant by way of a Special Leave Petition
in this Court whereupon this Court disposed it of as being premature. It
was observed that the petitioners, instead of giving reply to the notice in the
High Court, had rushed through a Special Leave Petition and, therefore,
this Court did not find it a fit case to interfere.
7
6. The appellant thereafter filed reply to the show cause notice issued
by the Patna High Court under Section 340 Cr.P.C. on 12.04.1999 wherein
the appellant denied that he had any knowledge about the aforementioned
document dated 09.06.1992. The Division Bench of the High Court at
Patna, by its order dated 16.07.1999 straightaway discharged the
Chairman of the Governing Council, Shri B.K. Rao and two other members
of the Governing Council, viz., Shri B.B. Dhar and Shri K. Paul. However,
the Court directed filing of complaint against the appellant who was also a
member of the Governing Council, since he happened to be the Acting
Director of the Indian School of Mines, Dhanbad, at the relevant time. The
High Court, however, included in the array of accused, Shri Vikram Prasad,
Assistant Inspector General of Registration, Bihar who was a signatory to
the letter dated 09.06.1992.
7. As has been stated earlier, the complaint came to be filed by the
Registrar of Patna High Court on 09.08.1999 wherein cognizance was
taken by CJM, Ranchi. The appellant thereafter filed Special Leave
Petition No.16037/1999 before this court against the order dated
16.07.1999 passed by the Patna High Court, wherein three other persons
were discharged while complaint was directed to be filed against some
others, including the appellant. This Court issued notice on 19.11.1999.
However, on 17.04.2001, this court dismissed the aforesaid Special Leave
Petition but permitted the appellant to raise all contentions in the Trial
8
Court including the right to plead for discharge and also granted
anticipatory bail to him. The order passed by this Court is as under:
"We permit the petitioners to raise all their contentions in the
trial court including the right to plea for discharge. If petitioner
would appear and apply for bail before the trial Court they shall
be released on bail on executing a bond for such sum as may
be fixed by that court with or without sureties. Accordingly,
special leave petitions are dismissed."
8. The appellant accordingly appeared before the CJM, Ranchi on
11.07.2005 and obtained bail. Thereafter, he moved an application for
discharge on the same date. However, the Trial Court dismissed the
discharge application in limine and proceeded to frame charges against the
petitioner. The petitioner, therefore, filed a Writ Petition (Crl.) No.315/2005,
challenging the order dismissing discharge application and the order
framing charge, before the High Court of Jharkhand at Ranchi which was
dismissed on 03/07.07.2006, necessitating the filing of present Special
Leave Petition.
9. In the impugned order, the High court quoted the judgment passed
by the Patna High Court dated 16.07.1999 and observed that the letter
dated 09.06.1992 was found to be forged and fabricated in the inquiry
instituted by the Department and, therefore, offence under Section 195(1)
(b) Cr.P.C. appeared to have been committed in respect of that letter. The
High Court came to the conclusion that since the Division Bench of the
9
Patna High Court, by its earlier elaborate judgment, had clearly found, on
the basis of evidence on record, that the appellant was well aware of filing
of such counter affidavit in which a forged letter was used before the Court
on behalf of Indian School of Mines, it could not be said that the allegations
against the appellant were based on mere suspicion. It further recorded a
finding that documentary evidence was sufficient to frame charge against
the appellant. It is this judgment of the Patna High Court, which has fallen
for our consideration.
10. Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of
the appellant firstly urged that there was no material whatsoever against
the appellant who, at the relevant time, was the Acting Director of the
Indian School of Mines, Dhanbad. He referred to the earlier order passed
by this Court and pointed out that this Court had given the liberty to the
appellant to file the discharge application and it was in terms of that order
that the application was filed. The further argument of Shri Ranjit Kumar is
that neither the Trial Court nor the High Court had considered the
questions raised in the discharge application. He pointed out on merits
that it was not the appellant who authored the aforementioned letter dated
09.06.1992, nor had the appellant sworn or filed the affidavit before the
High Court, of which the alleged letter was part, since that affidavit was
sworn by Shri M. Ramakrishna. He argued that the appellant had not even
taken any advantage from the letter dated 09.06.1992. He further argued
10
that in spite of the order of this Court, specifically granting liberty to the
appellant to file a discharge application, the Division Bench of the Patna
High Court did not go into the aspect of discharge at all. Learned Senior
Counsel, by way of his legal submissions, urged that at the time when the
inquiry under Section 340 Cr.P.C. was ordered in relation to the alleged
forgery of the letter dated 09.06.1992, the provisions of law with reference
to the forgery of document contemplated under Section 195(1) (b) Cr.P.C.
and related Sections did not make a distinction between forgery being
committed outside the Court and while the document was custodia legis.
The learned counsel heavily relied upon a decision of this Court reported
as Iqbal Singh Marwah & Anr. V. Meenakshi Marwah & Anr. [2005 (4)
SCC 370] wherein this Court had held that proceeding under Section 340
read with Section 195 Cr.P.C. could only be initiated if the forgery was
committed during the time when the documents were custodia legis and
not when the forgery was committed outside the Court i.e. before the
document had been produced or given in evidence in a proceeding in any
Court. He, therefore, urged that there could not be any initiation of
proceedings under Section 340 Cr.P.C. much less for the offences under
Section 195 Cr.P.C. and the other allied offences because, admittedly, the
forgery was not committed in respect of the document dated 09.06.1992
when the letter was custodia legis. Learned counsel also invited our
attention to the earlier order passed by the High Court wherein three other
11
accused were discharged, who were similarly circumstanced as the
appellant herein.
11. As against this, it was urged on behalf of respondent No.2 that the
High Court was correct in rejecting the petition of the petitioner/appellant
and in refusing discharge from the prosecution. Learned counsel urged
that there was enough material with the complainant and it was clear that
the appellant was aware of the aforementioned forgery and he was party to
the conspiracy of using forged letter.
12. There can be no doubt that in the present case, this Court had
specifically granted liberty to the appellant to file a discharge application.
We have quoted that order of this Court in para 7 of this judgment.
Accordingly, the appellant filed a discharge application in the Trial Court,
where the trial was pending, contending therein that there was no material
available even for framing the charge. It was specifically pleaded in the
said application that the said discharge was being sought for under sub-
Section (2) of Section 245 Cr.P.C.
13. 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
12
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, he 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.
13
14. 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. It is after all this, evidence is
taken, then the Magistrate has to consider under Section 245(1) Cr.P.C.,
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) 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. Of course, under Section 245(2) Cr.P.C., a
Magistrate can discharge the accused at any previous stage of the case,
if he finds the charge to be groundless.
14
15. Essentially, the applicable Sections are Section 244 and 245
Cr.P.C., 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) Cr.P.C. or to summon its witnesses under Section
244(2) Cr.P.C. This did not happen and instead, the accused proceeded to
file an application under Section 245(2) Cr.P.C., on the ground that the
charge was groundless.
16. 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.
17. 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 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
15
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 bring out this position. It will
be better to see what is that "previous stage".
18. 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. Under Section 200, after taking cognizance, the Magistrate
examines the complainant or such other witnesses, who are present. Such
examination of the complainant and his witnesses is not necessary, where
the complaint has been made by a public servant in discharge of his official
duties or where a Court has made the complaint or further, if the Magistrate
makes over the case for inquiry or trial to another Magistrate under Section
192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent
to take the cognizance of the case, he would return the complaint for
presentation to the proper Court or direct the complainant to a proper
Court. Section 202 Cr.P.C. deals with the postponement of issue of
process. Under sub-Section (1), he may direct the investigation to be
made by the Police officer or by such other person, as he thinks fit, for the
purpose of deciding whether or not there is sufficient ground for
proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given
such a direction for such an investigation, where he finds that offence
16
complained of is triable exclusively by the Court of sessions. Under
Section 202(1)(b) Cr.P.C., no such direction can be given, where the
complaint has been made by the Court. Under Section 203 Cr.P.C., the
Magistrate, after recording the statements on oath of the complainant and
of the witnesses or the result of the inquiry or investigation ordered under
Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no
sufficient ground for proceeding. On the other hand, if he comes to the
conclusion that there is sufficient ground for proceeding, he can issue the
process under Section 204 Cr.P.C. He can issue summons for the
attendance of the accused and in a warrant-case, he may issue a warrant,
or if he thinks fit, a summons, for securing the attendance of the accused.
Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for
our purpose. 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. 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) Cr.P.C., where the Magistrate takes up the task of
considering on all the evidence taken under Section 244(1) Cr.P.C., and if
he comes to the conclusion that no case against the accused has been
17
made out, which, if unrebutted, would warrant the conviction of the
accused, the Magistrate proceeds to discharge him. The situation under
Section 245(2) Cr.P.C., 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 Cr.P.C.
and till the completion of the evidence of prosecution 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.
19. In the present case, the Magistrate did not dismiss the complaint
under Section 203 Cr.P.C. However, since this was a complaint made by
the Court, there was no question of examining complainant or any of his
witnesses under Section 200 Cr.P.C. Further, there was no question of
even issuing any direction for investigation under Section 202 Cr.P.C.,
since the complaint was made by the Court. This is clear from the
wordings of Section 202(1) Cr.P.C. It is as under:-
"202(1) ...........
Provided that no such direction for investigation
shall be made-
(a) x x x x x
18
(b) where the complain has not been made by
a Court, unless the complainant and the
witnesses present (if any) have been
examined on oath under Section 200."
We have already pointed out that since this was a complaint made
by the Court, therefore, there would be no question of there being any
examination of complainant or his witnesses on oath. As has already been
stated earlier, the Magistrate simply issued the process under Section 204
Cr.P.C. When the accused appeared in pursuance to the summons sent to
him, under Section 244 Cr.P.C., the defence came out with an application.
There can be no difficulty that the discharge application was perfectly in
order at that stage. Therefore, what was available before the Magistrate
besides this discharge application was, a bare complaint. There was
absolutely nothing beyond the complaint available, for the Magistrate to
consider the framing of charge. The Magistrate could, undoubtedly, have
proceeded under Section 245(2) Cr.P.C., on the basis of discharge
application and discharge him. However, he would have been required to
give reasons for discharging at that stage, when no evidence or no
material, whatsoever, was available with him, excepting a bare complaint.
20. The Magistrate, in this case, not only dismissed the application, but
also proceeded to frame the charge, which order was also in challenge in
the Writ Petition filed before the Division Bench. We have now to see as to
whether the Magistrate was justified in dismissing the discharge application
19
and then straightaway to frame a charge under Section 246(1) Cr.P.C. If
under Section 245(2) Cr.P.C., there could be a discharge at any previous
stage which we have discussed about, there is a necessary sequel, an
application could also be made at that stage. The Magistrate has the
power to discharge the accused under Section 245(2) Cr.P.C. at any
previous stage, i.e., before the evidence is recorded under Section 244(1)
Cr.P.C., which seems to be the established law, particularly in view of the
decision in Cricket Association of Bengal & Ors. Vs. State of West
Bengal & Ors. reported in 1971 (3) SCC 239, as also the subsequent
decision of the Bombay High Court in Luis de Piedade Lobo Vs.
Mahadev reported in 1984 Criminal Law Journal 513. The same
decision was followed by Kerala High Court in Manmohan Malhotra Vs.
P.M. Abdul Salam & Anr. reported in 1994 Criminal Law Journal 1555
and Hon'ble Justice K.T. Thomas, as the Learned Judge there was,
accepted the proposition that the Magistrate has the power under Section
245(2) Cr.P.C. to discharge the accused at any previous stage. The
Hon'ble Judge relied on a decision of Madras High Court in Mohammed
Sheriff Vs. Abdul Karim reported in AIR1928 Madras 129, as also the
judgment of Himachal Pradesh High Court in Gopal Chauhan Vs. Smt.
Satya reported in 1979 Criminal Law Journal 446. We are convinced
that under Section 245(2) Cr.P.C., the Magistrate can discharge the
accused at any previous stage, i.e., even before any evidence is recorded
under Section 244(1) Cr.P.C. In that view, the accused could have made
20
the application. It is obvious that the application has been rejected by the
Magistrate. So far, there is no difficulty.
21. However, the real difficulty arises in the Trial Court's proceeding to
frame the charge under Section 246 Cr.P.C. It is obvious that at that stage
of framing a charge in this case, no material, whatsoever, was available
with the Trial Court, excepting the complaint, which was also not supported
by any statement on oath, by the complainant or any of his witnesses,
which ordinarily are recorded at the stage of Section 200 Cr.P.C. In this
case, since the complaint was by the Court, no such statement came to be
recorded, of the complainant or any of his witnesses present. Here also,
the Trial Court has committed no mistake. Again, the Trial Court has also
not made any mistake in issuing the process, if the Trial Court felt that
there was a ground for proceeding. The real question, which comes,
however, is as to how after rejecting the application made by the accused
under Section 245(2) Cr.P.C., the Trial Court straightaway proceeded to
frame the charge.
22. The charge is framed under Section 246(1) Cr.P.C., which runs as
under:-
"246(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."
21
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. Now here, there is, however, one grey area.
Section 246(1) Cr.P.C. is very peculiarly worded. The said grey area is on
account of phrase "or at any previous stage of the case". The question
is as to whether, even before any evidence is led under Section 244
Cr.P.C., can the Magistrate straightaway proceed to frame a charge. The
debate on this question is not new, though there is no authoritative
pronouncement of this Court, on that issue. There are cases, where the
High Courts have specifically taken a view that the phrase does not
empower the Magistrate to frame any charge in the absence of any
evidence, whatsoever. It must be, at this stage, borne in mind that the
word used in Section 246 Cr.P.C. is "evidence", so also, in Section 244
Cr.P.C., the word used is "evidence". Therefore, ordinarily, the scheme of
the Section 246 Cr.P.C. is that, it is only on the basis of any evidence that
the Magistrate has to decide as to whether there is a ground to presume
that the accused has committed an offence triable under this Chapter.
22
23. Before we approach this question, we must note that while Section
245(2) Cr.P.C. speaks about the discharge of the accused on the ground
that the charge is groundless, Section 246(1) operates in entirely different
sphere. An order under Section 245(2) Cr.P.C. results in discharge of the
accused, whereas, an order under Section 246 Cr.P.C. creates a situation
for the accused to face a full-fledged trial. Therefore, the two Sections
would have to be interpreted in slightly different manner, keeping in mind
the different spheres, in which they operate. The words "or at any
previous stage of the case" appearing in Section 246 Cr.P.C. would
include Section 245 also, where the accused has not been discharged
under Section 245 Cr.P.C., while the similar term in Section 246(2) can
include the stage even before any evidence is recorded. It cannot,
therefore, be held that the words "at any previous stage of the case" as
appearing in Section 245 Cr.P.C., would have to be given the same
meaning when those words appear in Section 246 Cr.P.C.
24. The Bombay High Court, in a decision in Sambhaji Nagu Vs. State
of Maharashtra reported in 1979 Criminal Law Journal 390, has
considered the matter. While interpreting the words "at any previous
stage" under Section 246(1) Cr.P.C., the Learned Single Judge in that
case, came to the conclusion that the phraseology only suggested that the
Magistrate can frame charge, even before "all" the evidence is completed
under Section 244 Cr.P.C. Section 244 Cr.P.C. specifically mandates that
23
as soon as the accused appears or is brought before the Court, the
Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution. Further,
Section 245 Cr.P.C. also mandates that if upon taking all the evidence
referred to in Section 244 Cr.P.C., the Magistrate considers, for reasons to
be recorded, that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall discharge
him. In Section 246 Cr.P.C. also, the phraseology is "if, 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 Vs. Gulam Murthuza
reported in 1968 Criminal Law Journal 303. The similar view seems to
have been taken in T.K. Appu Nair Vs. Earnest reported in AIR 1967
Madras 262 and in re. M. Srihari Rao reported in AIR 1964 Andhra
Pradesh 226. The similar view has been expressed in P. Ugender Rao &
Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal
762, where it has been expressed that previous stage is a stage, after
recording some evidence. It is neither a stage before recording any
24
evidence at all nor a stage after recording the entire evidence, but is in
between. The interpretation, thus, placed on words "at any previous
stage of the case", occurring in Section 246(1) Cr.P.C. also appears to be
more in consonance with the order of the Sections numbered in the Code
and also with the heading given to Section 246 Cr.P.C., viz., "Procedure
where accused is not discharged". The very heading of the Section
even indicates that it would come into play only after the matter is
examined in the light of Section 245 Cr.P.C. and the accused is not
discharged thereunder. Therefore, it is incumbent upon the Magistrate to
examine the matter for purposes of considering the question whether the
accused could be discharged under Section 245 Cr.P.C. and it is only
when he finds it otherwise, he could have resort to Section 246 Cr.P.C.
25. The Learned Single Judge in this ruling has also noted another ruling
by the same High Court in Abdul Nabi Vs. Gulam Murthuza reported in
1968 Criminal Law Journal 303 (cited supra). We, therefore, find that
consistently, the view taken by the High Court is that there would have to
be some evidence before the charge is framed. In the last mentioned case
of P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990
Criminal Law Journal 762, there is one incorrect observation in respect of
a decision of this Court in Cricket Association of Bengal & Ors. Vs.
State of West Bengal & Ors. reported in 1971 (3) SCC 239 (cited supra)
to the effect that the Magistrate cannot discharge the accused before
25
recording any evidence, whatsoever, under Section 244 Cr.P.C. We have
not been able to find out such an expression in the aforementioned case of
Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors.
(cited supra). That was a case under old Section 253(2), which is pari
materia to the present Section 245(1). On the other hand, the Court has
very specifically stated therein that Section 253(2) gives ample jurisdiction
to the Magistrate to discharge the accused in the circumstances mentioned
therein and the order of discharge can be passed at any previous stage
of the case. It is further stated in Para 13 that sub-Section (1) under those
circumstances will not operate as a bar to the exercise of jurisdiction by the
Magistrate under sub-Section (2). Since we have found error in the above
mentioned judgment, we have mentioned so. However, the ruling in
Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors.
(cited supra) also supports our earlier finding that the Magistrate has the
power to discharge the accused, even before any evidence is recorded and
thus, an application for discharge at that stage is perfectly justifiable.
However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the
clear opinion that some evidence would have to be there for framing the
charge.
26. There is only one judgment of the Andhra Pradesh High Court in
Verendra Vs. Aashraya Makers reported in 1999 Criminal Law Journal
4206, which has taken the view that the Magistrate can frame the charge
26
even without any evidence having been taken under Section 244 Cr.P.C.
We do not think that is a correct expression of law, as the right of the
accused to cross-examine the witnesses at the stage of Section 244(1)
Cr.P.C. would be completely lost, if the view is taken that even without the
evidence, a charge can be framed under Section 246(1) Cr.P.C. 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. Unfortunately, the earlier cases of the
same Court, which we have referred to above, were brought to the notice
of the Learned Judge. 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.
27. 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
27
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) Cr.P.C. 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.
28. We are not expressing anything on merits, particularly because we
have directed the evidence of the prosecution to be led under Section 244
(1) Cr.P.C. Any expressions on our part are likely to cause prejudice to the
prosecution, as the case may be, accused. We are, therefore, leaving the
matter at this.
29. Accordingly, the appeal is disposed of with the direction that the
matter shall now go back to the Trial Court and the Trial Court shall
proceed to examine all the witnesses offered by the prosecution and it is
only after the evidence of those witnesses is recorded, that the Trial Court
would proceed to decide as to whether the charge is to be framed or not.
The appeal, thus, succeeds partly.
.................................................J.
[Tarun Chatterjee]
28
.................................................J.
[V.S. Sirpurkar]
New Delhi
March 18, 2009
29
