“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  

J U D G M E N T

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

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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

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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.   

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(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.   

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(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

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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.   

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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

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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

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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(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

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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

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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.”

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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.   

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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

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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

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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

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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

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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

26

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]

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………………………………………….J.  [V.S. Sirpurkar]

New Delhi March 18, 2009

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