Girish Chandra Gupta and Others vs State of U.P. and Another

K.N. Sinha, J.—Heard the learned Counsel for the Revisionists, learned A.G.A. and perused the impugned order.

Learned Counsel for the revisionists has submitted that revisionists were summoned for the offence under Sections 452/323/ 504/506, Indian Penal Code on the complaint filed by Km. Kriti Agrawal, the Respondent No. 2. After order summoning the accused was passed on 20.7.2002, an application was moved by accused persons for recall of the above order. The revisionist''s counsel also cited some decisions before the Magistrate. However, the Magistrate relying upon Ranjeet Singh and Ors. v. State, 2000 (1) ACR 1 (FB): JT 2001 (1) SC 399 (All)dismissed the said application.

It is surprising that the Judicial Magistrate did not bother to apply himself to the decisions cited before him nor passed the order according to law. The Magistrate has cited the first judgment M/s. Kunstocom Electronics (I) Pvt. Ltd. v. Gilt Pack Ltd. and Anr. 2002 (1) ARC 641 (SC): 2002 SCC 336 and came to the conclusion that according to Hon''ble Supreme Court, the Magistrate can hear an objection on the order passed u/s 204, Cr. P.C. and need not wait for the proceedings to reach to the stage u/s 245 or 246, Cr. P.C. Thereafter, he cited the above Full Bench decision and a single Judge decision of this Court and without properly dealing with the applicability of Apex Court decision appreciating both the case laws of this Court, dismissed their application.

In the case of M/s. Kunstocom Electronics (I) Pvt. Ltd. (supra) Hon''ble Apex Court directed the High Court to dispose of the application u/s 482, Cr. P.C. on the ground that the party may not be asked to wait till the time of framing of the charge. In the complaint case (warrant case) the stage of framing of the charge reaches after evidence u/s 244, Cr. P.C. is recorded. The stage of discharge of the accused u/s 245(1), Cr. P.C. arrives only after recording of such evidence which the prosecution desires to rely and provision to this effect has been laid down in Section 245(1), Cr. P.C. Section 245(1) Cr. P.C. lays down as under:

Section 245. When accused shall be discharged.-

(1) If, upon taking all evidence referred to in Section 244, 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.

An exception can be read from this stage in the provisions of Section 245(1), Cr. P.C. For ready reference the section is quoted as under.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

Section 190(a) allows a Judicial Magistrate having jurisdiction to take cognizance of any case on a private complaint. After the cognizance is taken he is to record evidence of the complainant and his witnesses under Sections 200 and 202, Cr. P.C. If he chooses the matter to be enquired into by himself or sent it for investigation to police u/s 202, Cr. P.C. The word used in the section is investigation. It, in my opinion is not equal to an investigation as used in Section 156(3), Cr. P.C.

On a fulfilment of requirement of Section 202, Cr. P.C. the Magistrate has only two courses open to him. He can dismiss the complaint u/s 203, Cr. P.C. if no offence is made out, or summon the accused u/s 204, Cr. P.C. on the evidence on record disclosing an offence or offences against the accused.

After the summons are issued and accused has appeared, comes into play the provision u/s 244, Cr. P.C. It requires the Magistrate to hear and to record all the evidence produced by the complainant. Section 245, Cr. P.C. now makes an entry into the scene. Section 245(1), Cr. P.C. is plain and simple. It does not call for any clarification. The Magistrate has an unfettered power of discharge subject to fulfilment of the conditions laid down in Section 245(1), Cr. P.C.

It clearly implies that on a consideration of unrebutted evidence if he comes to a conclusion that on such evidence no conviction is possible he is to discharge the accused. Such a situation occurs only when no offence is disclosed from the evidence recorded by him.

The anomaly occurs when we examine provisions of Section 245(2), Cr. P.C. especially the import of the words ''at any previous stage of the case'' he considers the charge to be groundless.

A complaint becomes a case only after an order u/s 204, Cr. P.C. summoning the accused comes into existence. It is, thereafter that the Court assumes jurisdiction in the matter to try the accused for the offences disclosed for which he was summoned. Section 244, Cr. P.C. enters the scenario now. After the formalities u/s 244, Cr. P.C. are complete the proceedings u/s 245(1) step in. The Magistrate has to determine whether the evidence on record, if unrebutted is sufficient to warrant a conviction or not. If it does not happen, i.e., no such offence is made out, he has ample powers to discharge the accused u/s 245(1). Analyzing the entire scheme up to this stage what is to be noticed is that in between Section 204, Cr. P.C., i.e., the stage where the accused is summoned and Section 244, Cr. P.C., i.e., a stage where the evidence of the complainant and his witnesses is to be recorded in accordance with the provisions of Section 244, Cr. P.C., there is no option open to an accused. A close scrutiny of Section 244 and Section 245(1) makes it abundantly clear that the evidence till this stage is to be wholly unrebutted. The accused till this time has absolutely no role in the proceedings of the case. This all is to be one-sided affair. The entry of the accused is possible only after the stage of Section 244, Cr. P.C. is over, i.e., the stage where the evidence is to be evaluated by the Court for finding out whether it discloses commission of any offence against accused summoned or not for framing charge. If from the unrebutted evidence the Court comes to a conclusion that no offence is disclosed, the only option for it is to discharge the accused.

In the context discussed above, this Court has to see and interpret the phrase "at any previous stage of the case" occurring in Section 245(2), Cr. P.C. The question that would haunt the Court is ''whether it is an exclusion of Section 245(1) or it includes it. If we assess the phrase "at any previous stage of the case" it clearly means that at any stage in between Section 204 and 244, Cr. P.C., which clearly is indicative of a liberty to the accused to challenge the order of his summoning after his appearance before the Court. Can it be done before recording the evidence, will be another question that will stare at the face. Can any other meaning be attached to the phrase "at any previous stage of the case". As discussed earlier there does not exist any stage in between Section 204 and Section 244, Cr. P.C. The order u/s 204, Cr. P.C. is only a culmination of an enquiry to ascertain the feasibility for trial of the accused on a complaint. A complaint becomes a case only after it is registered for prosecution. It excludes inquiry or investigation stage. The term "at any previous stage of the case" is thus clearly indicative of the existence of a right to an accused to challenge the accusation levelled against him by the complainant even before the arrival of the stage contemplated by Section 244, Cr. P.C. If he waits until the conclusion of the proceedings u/s 244, Cr. P.C. it shall then become late for him to lay that claim before the Court. In that event, the Court would be in a position to assess the evidence, which is to be unrebutted meaning thereby another examination of the statement of the complainant and his witnesses. The option of discharge lies solely with the Court and the law upto the stage of Section 245(1), Cr. P.C. does not vest any right in the accused. The Court is competent enough to either discharge the accused of the charges for which he was summoned on coming to a conclusion that the evidence has failed to disclose any offence prosecutable. If no such conclusion is possible, the charge will be the result. In the said circumstances the possible interpretation of the phrase "at any previous stage of the case" occurring in Section 245(2), Cr. P.C. leaves hardly any room for any different interpretation.

In this context the remedy to the accused can be by moving an application stating therein that the offence for which he is summoned, are not disclosed from the evidence collected during the inquiry u/s 202, Cr. P.C. In other words it can be said that he is entitled to file an objection to the order of summoning. If this is not realised this would amount to subject him to untold harassment and agony. The prosecution of any person for any offence attaches blatantly a stigma to his credit. Conviction is a confirmation of that stigma whereas acquittal confirms or proves his innocence. This stage will come after a prolonged proceeding and sufficient harassment mentally as well as financially of the undertrial.

It, therefore, makes it abundantly clear that the term "at any previous stage of the case" occurring in Sub-section (2) of Section 245, Cr. P.C. has some different message to communicate. It is in complete segregation of Section 245(1), Cr. P.C. Has the interpretation that is made above, not an intention of the Legislature, what was the necessity for introducing Sub-section (2) to this section that too after Sub-section (1). The phrase "at any previous stage of the case" occurring herein, therefore, has a serious relevance to the right of an accused before the Court records the evidence of the complainant and his witness as u/s 244, Cr. P.C., otherwise this Sub-section ought not to have been there. Section 245(1), Cr. P.C. in itself would have been sufficient. The use of the phrase "at any previous stage of the case" thus cannot be read in isolation or in exclusion to this right of an accused. Sub-section (1) itself does not provide the accused any right to claim his discharge. The right is provided only to the Court. Both these stages are contemplated within the term "at any previous stage of the case". It means before the witnesses are thrown for cross-examination to the accused, the right is made available to him clearly by the Legislature. The scheme of the Code of Criminal Procedure is very clear vis a vis the trial of the accused challaned by the police or otherwise tried on a complaint made by a private person. In the cases challaned by the police no inquiry is called for whereas in a private complaint an inquiry proceeds before the trial commences. It is contemplated after such a complaint u/s 190(a) is registered. Inquiry begins under Sections 200 and 202, Cr. P.C. After an evaluation of the evidence on record order u/s 203, Cr. P.C. or u/s 204, Cr. P.C. is to be passed. In between Section 204, Cr. P.C. and 244, Cr. P.C., a total vacuum exists. Thus, again it is to be emphasized that the term "at any previous stage of the case" can have no other meaning in the context of an accused than the one emphasized by me earlier in a trial on a complaint. (warrant trial) The word "previous" in the phrase read with the term "stage" provides the clue and the solution both to the crisis at hand. If it is restricted to signify the stage contemplated u/s 245(1), Cr. P.C. certainly it would only be a misinterpretation of Sub-section (1) to Section 245, Cr. P.C. The accused has no entrance until this stage, till then it is a matter between the Court and the party which has brought the charge for trial, i.e., a complainant.

I am fortified in my above conclusion from the Apex Court decisions namely, (a) Konstocom Electronics (I) Pvt. Ltd. v. Gilt Pack Ltd. and Ors. (supra). It has been clearly held in this case, as under:

There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge. Such was not the intention of the High Court in passing the order dated 15.5.1996. In any case, we have the authority of the judgment of this Court in the case of Ashok Chaturvedi v. Shitul H. Chanchanito hold that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge.

This argument however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code. He is debarred from approaching the Court even at an earlier point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegation made in the complaint petition."

In this case objection was preferred by accused before the Magistrate against the summoning order. The said objection was rejected by the Magistrate. High Court was approached by filing an application u/s 482, Cr. P.C. wherein the High Court first asked the accused to approach the Chief Judicial Magistrate, Indore, where the matter is pending for disposal in accordance with law on merit. The Magistrate shall consider all the objections raised by Petitioner in his petition and shall pass a reasoned order on the same. The accused filed objection before the Chief Judicial Magistrate, Indore, which was again rejected by a reasoned order dated 3.10.1996. The accused again approached the High Court. The High Court disposed of the petition with the observation that the applicant (accused) shall have the right to raise all the grounds at the time of framing of the charge. On the above background Hon''ble Apex Court though remanded the matter to the High Court to consider the application u/s 482, Cr. P.C. observing that the objection regarding maintainability of the complaint need not always be raised only at the time of framing of the charge. Thus, the right of the accused for filing objection or prayer for discharge u/s 245(2), Cr. P.C. can be considered by the Magistrate.

Coming to the question raised before the Court in the present case it is significant to point out that the objections were rejected by the Magistrate in view of opinion expressed by the Full Bench of this Court in "Ranjit Singh v. State of U. P., 2000 (1) ARC 1 (FB): 2001 (1) JIC 399.

The question referred to the Bench was whether the Magistrate/ Court before rejecting the final report filed by the Investigating Officer has to hear the accused on his appearing voluntarily or after notice irrespective of the fact whether or not the informant is proposed to be heard with or without a protest petition challenging the said finding of the Court. The Full Bench responded to the query of order of single Judge Bench in the following words:

That there is no scope to uphold that the accused should be afforded an opportunity by the Magistrate/Court before accepting or rejecting the final report submitted by the Investigating Officer after investigation of an F.I.R.

In this regard, I draw strength from another well reasoned judgment of the Apex Court, Rajendra Kumar Sitaram Pandey v. Uttam and Anr. 1999 (1) ARC 530 (SC), wherein one of the questions raised before the Apex Court was that "Even if the remedy of approaching the Magistrate by the accused u/s 245 for recalling the process already issued is available in terms of the judgment of this Court in Mathew''s case, the matter being present in this Court itself, this Court may consider the averments made in the complaint petition to find out whether any offence is made out and then pass appropriate order. The question was considered by the Apex Court. (In this judgment instead of Section 245, Section 205 is referred which probably is a mistake of printing as it ought to be 245, Cr. P.C.). The Apex Court itself considered the correctness of the order and came to the conclusion that if no case is made out against accused from reading of the complaint and the report of the Treasury Officer "calling upon the accused to face the trial would be travesty of justice". Finally, after appreciating the allegations made in the complaint and also the report of the Treasury Officer, the Apex Court was of the opinion that the trial must not proceed. I prefer to quote the own words of the Apex Court as under:

We are also satisfied that no case of defamation has been made out. In this view of the matter requiring accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of the process would not be in the interest of justice.

Thus, the Apex Court has also emphasized on the dictum of no undue harassment of the accused by any person or the State if allegations do not make out the case for his trial. Issuance of process is a power for the trial vested in a Court.

The law determined in Ranjit Singh (supra) has hardly any application in a trial arising from a complaint case. That was a decision given in respect of a final report and right of an accused before it is accepted or rejected. A different question was answered in the said case. It was a decision in reference to final report submitted by police after investigation and the right of the accused for hearing. The question was whether an accused can be allowed a right to appear and prove that the final report so submitted, is correct and needs no interference by the Court. The question was answered in the negative. I draw further strength from single Judge decision decided by Hon''ble B. K. Rathi, J., in Swarnlata Munjal v. State of U. P., 2000 (3) ARC 1865::(41) 2000 ACC 524. This judgment followed the above Apex Court judgment in letter and spirit distinguishing the applicability of the law laid down in the case of Ranjit Singh (supra) which was decided on 12.11.1999 after the Apex Court laid down the law in the case of Rajendra Kumar Sitaram Pandey (supra) which was decided on 10.2.1999, i.e., earlier in point of time. It appears that this important decision of the Apex Court was not cited before the Full Bench, dealing with the case of Ranjit Singh (supra).

It is further more surprising that the Magistrate even after recognising the right of the accused in accordance with the view expressed by the Apex Court has unnecessarily employed Ranjit Singh (supra) to dismiss the objection so preferred by him. This conduct is not fair and proper and is strongly deprecated. It exposes either a bias or some other latent purpose in such an unwarranted exercise. He obviously ought to have decided the objection on merit.

This remedy of claiming discharge u/s 245(2), Cr. P.C. is available to accused, facing trial in a warrant case instituted otherwise than on police report as remedy of Section 245, Cr. P.C. is not available in summons cases or cases instituted on police report. This may be called an objection or an application for discharge u/s 245(2), Cr. P.C.

In view of the discussions made above this revision application is allowed. The order dated 20.7.2002 is set aside. The Magistrate is hereby directed to consider the objection on merit treating it discharge application u/s 245(2), Cr. P.C.