Madan Lal son of Gauri Shankar vs State of Punjab

B.S. Yadav, J.

The facts giving rise to this revision petition are that Shri Udey Singh Gera, Judicial Magistrate Ist Class, Pathankot filed a complaint under section 193, 467 and 471 of the Indian Penal Code against the present petitioner, Madal Lal and others on the ground that a civil suit had been decided by the precedessor, Shri I.S. Bajwa and in that case he had observed that the accused had forged and fabricated a will in favour of Tilak Raj and had deposed falsely in Court.

As the complaint had been filed by a Court, the learned Judicial Magistrate Ist Class, Pathankot in whose Court the complaint was filed, did not record any evidence in view of proviso (a) to section 200 of the Code of Criminal Procedure, 1973 (hereinafter called the Code). The learned Judicial Magistrate summoned the accused and framed the charge. The present revision petition is for quashing the charge.

The learned counsel for the petitioner placed reliance upon sections 244, 245 and 246 of the Code and argued that the learned Judicial Magistrate could have framed the charges only after whole or part of the evidence of the prosecution had been recorded. It becomes relevant to reproduce the above sections and those reads as under :

"244(1) When, in any warrentcase instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

245 (1) If, upon taking all the evidence referred to in Section 244, the Magistrate consideres, for reasons to be recorded, that no case against the accused has been made which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(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 charges to be groundless.

246(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of the 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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In the light of the above provisions, the learned counsel for the petitioner argued that after whole or some prosecution evidence has been recorded, two courses are open to the Magistrate. The first is that if no case against the accused has been made out which, if unrebutted, would warrant his conviction, he shall discharge him, but if he is of the opinion that there is ground for presuming that the accused has committed an offence which he is competent to try and could be adequately punished by him, he shall frame a charge against the accused.

On the other hand, Shri T.P.S. Mann, learned Advocate appearing for the Advocate General, Punjab argued that even in a complaint case, the Magistrate is not bound to record all or any of the prosecution evidence and he can straightaway frame a charge on the basis of the allegations contained in the complaint. He placed reliance upon the words "or at any previous stage of the case" occurring in section 246 of the Code.

After a careful consideration of the various provisions of the Code, I am of the opinion that the argument of the learned counsel for the petitioner has force. Sections 200 to 203 of the Code deal with a Magistrate taking cognizance of an offence on the basis of a complaint. Section 200 deals with examination of the complainant and his witnesses present, if any. Section 201 deals with the procedure to be adopted by the Magistrate if he is not competent to take cognizance of the case. Section 202 of the Code deals with postponement process. Section 203 empowers the Magistrate to dismiss a complaint if after considering the statement on oath, if any, of the complainant and of the witnesses as a result of the inquiry or investigation, if any under section 202, he is of the opinion that there is not sufficient ground for proceeding. If the Magistrate does not dismiss a complaint under section 203 of the Code; then section 204 will be attracted. That section applied both to the cases instituted on Police report or otherwise and deals with the issue of process to an accused.

The words "at any previous stage of the case" also occur in subsection 2 of section 245 of the Code if the argument of the learned counsel is accepted, then a Magistrate can discharge the accused even before recording the evidence, because subsection (2) empowers him to discharge the accused at any previous stage of the case if he considers the charge to be groundless. If, on the basis of the complaint alone, a Magistrate is to form an opinion if the charge is groundless, then he would dismiss the complaint under section 203 of the Code and would not summon the accused. Thus it is clear that the words "at any previous stage of the case" do not mean that without recording any evidence, a Magistrate can act under section 245 or 246 of the Code,.

Section 245 of the Code corresponds to section 253 of the Code of Criminal Procedure, 1898 and section 246 of the Code corresponds to section 254 of the Code. In section 253(2) and 254 of the (old) Code, also the words "at any previous stage of the case" occurred. These words only mean that the Magistrate is not bound to record all the witnesses of the prosecution. In T.K. Appu Nair v. Earnest and others, AIR 1967 Madras 262, the case had been initiated on the basis of a private complaint. After recording some evidence, the Magistrate had framed a charge. The complainant filed revision petition in the High Court and his grievance was that the offence committed by the accused was under section 220 of the Indian Penal Code, which was triable by Court of Sessions and hence, the case should have been covered into a PRC case. Part evidence recorded by the Magistrate showed that the complainant had received simple injuries. The Magistrate framed charge against the accused under section 342 read with section 34 of the Indian Penal Code. While dismissing the revision petition it was remarked :

"The learned advocate for the petitioner contended that he had other witnesses to prove the necessary mens rea required under Section 220, IPC and that the said witnesses had not been examined in a private complaint in respect of a case triable under warrant procedure, the Magistrate is entitled to frame charges for the offences mentioned in the complaint as soon as some witnesses are examined to prove then ingredients required for the said offences. I have already referred to the fact that the complaint filed by the petitioners was only under section 342 and 325 read with section 34, IPC. The medical evidence did not justify the charge under section 325, IPC. Hence, the only charges that could be framed on the complainant are for offences under section 342 and 323 read with section 34, IPC and the said charges have been framed in the case."

I may also quote here In re, Malepati Shrihari Rao. AIR 1964 Andhra Pradesh 226 which is also under the old Code. In that case it was remarked :

"Section 253 relied on relates to discharge of the accused, which can not be ordered unless the whole evidence is taken or the Magistrate comes to the conclusion at any earlier stage that the charge is baseless. We are not concerned in this case with any question of discharge at all. Section 252 had, therefore, no bearing on the present controversy.

The other section relied on is Section 254, which deals with the question when a charge may be framed. A charge is ordinarily framed after all the evidence as may be produced in support of the prosecution has been taken. It is open to the Magistrate to frame a charge even earlier. But in either case, it is necessary that the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI which he is competent to try and which in his opinion can be adequately punished by him.

It follows therefore that the Magistrate is not bound to examine all the witnesses to be produced on behalf of the prosecution before he frames a charge. The moment a prima facie case is made out against the accused of any offence of the description referred to in section 254, Cr.P.C. he is at liberty to frame a charge."

From the above it is clear that the words "at any previous stage of the case" used in sections 245 and 246, merely connote that the Magistrate is not bound in every case to record the whole evidence for the prosecution before discharging the accused for framing charge against him. He is entitled to do so even before all evidence for the prosecution has been recorded, if, at any moment, he is satisfied that the charge against the accused is ground less or prima facie case has been made out against him.

For the foregoing reasons, I hold that in the present case, the learned Magistrate was not justified in framing the charges without recording any prosecution witness. Accordingly, I quash the charges and send the case back to the learned Judicial Magistrate I Class, Pathankot for further trial in accordance with law.