MGD Electronics Pvt. Ltd. vs State of Gujarat and 2 Others

Honourable Mr. Justice Rajesh H. Shukla

Rule. The present petition has been filed by thepetitioner under Articles 226 and 227 of the Constitution of India as well as u/s 482 of the Code of Criminal Procedure for the prayerthat appropriate writ, order or direction may beissued for quashing and setting aside the orderpassed in Criminal Revision Application No.56 of2011 by the Sessions Court (Main) Gandhinagar dated18.07.2011 confirming the order passed by the Courtof Magistrate dated 18.05.2011 on the groundsmentioned in the petition.

Heard learned advocate Mr. Pandya for Shri C.K.Pandya for the petitioner and learned APP Mr.H.L.Jani as well as Mr. P.T. Chacko for respondentnos.2 and 3-original accused.

Learned advocate Mr. Pandya submitted that asstated in the pursis at page no.55, the applicationfor adjournment was given by the learned advocatefor the accused and the matter was kept for precharge evidence and arguments to the knowledge ofthe learned advocate for the accused. He submittedthat thereafter, as could be seen from the record,the written arguments for the accused personsopposing the framing of charge were also given andthe same have been considered as it is recorded in the order passed by the Magistrate. Therefore, itcannot be said that no opportunity of crossexamination has been given to the respondent�original accused. Learned advocate Mr. Pandyasubmitted that when the matter has been kept andadjourned to the knowledge of the accused and hisadvocate and thereafter when they do not make anypreliminary objection and the charge is framed, thegrievance cannot be made that no opportunity hasbeen given.

Learned advocate Mr. P.T.Chacko, however, referredto the said application for adjournment dated13.04.2011 and submitted that it was kept for precharge evidence and arguments and thereafter, ascould be seen straight way, the order is passedregarding framing of the charge. He referred to thewritten submission and pointedly referred to theparagraph no.10 that there is no evidence tosupport the allegations and therefore, there is nosufficient material for confirming the charge. Learned advocate has also referred to the affidavit-in-reply on behalf of the opponent accused.

In view of this submission, it is required to beconsidered whether the present petition can beentertained or not.

The moot question, which is required to beconsidered is whether the opportunity of crossexamining the witnesses of the complainant wasgranted by the Magistrate before proceeding toframe the charge. As could be seen from the record,the earlier applications were given for adjournmentto the knowledge of the accused and the learnedadvocate for the accused that the matter is keptfor pre charge evidence and arguments and asrightly submitted by learned advocate Mr. Pandyathat while passing the order in Criminal Case No.4022 of 2010 at Annexure-D, the Chief JudicialMagistrate Gandhinagar, has considered thesubmissions and the reply opposing the framing ofcharge at Exhibit-25. Learned advocate for theaccused had remained present and made thesubmission. Therefore, the submission that noopportunity has been given cannot be accepted andthe said submission is without any merit.

Further the submission made by the learned advocateMr. P.T.Chacko that the accused had right to crossexamine the witnesses of the complainant, is alsomisconceived inasmuch as, when the written replywas given opposing the framing of charge and whenthe matter is kept for pre charge evidence andarguments, the learned advocate for the accusedcould have specifically made the endorsement orgiven an application that he desire to cross examine the witnesses. On the contrary, when thepursis at Exhibit-23, Annexure-C dated 14.04.2011is given by the complainant and his advocate, theobjection could have been raised with endorsementor by separate application. Assuming that no suchapplication is made by inadvertence, even then, atthe stage of hearing, when the written arguments ofthe accused opposing the framing of charge wereconsidered on the basis of the submissions made bythe learned advocate, the learned advocate couldhave requested the Court that before such hearing,first he would like to cross examine the witnesseson behalf of the complainant. Therefore, when hehas not availed of that opportunity at that stage,which was available to him as required u/s 202 of the Code of Criminal Procedure, it is too late now to make a grievance thatopportunity was not given. The provision of Section 202 of Code of Criminal Procedure clearly providesabout the procedure, and when the cognizance isbeing taken, the right could have been asserted forcross examining the witnesses of the complainant.It is not even the case of the learned advocate for the accused that though such request is made thesame has been declined. It is in thesecircumstances the order which has been passed bythe Sessions Court, Gandhinagar allowing therevision, the order passed by the Magistrate in Criminal Case No. 4022 of 2010 dated 18.05.2011 deserves to be set aside.

The procedure which has been provided in Sections 244(2), 246 refers to the procedure and what hasbeen provided is that when the case has beeninstituted otherwise than on police report the fulllatitude has to be given by the Magistrate to theaccused. Moreover, as provided in Section 246 whenthe Magistrate is of the opinion that the accusedhas committed an offence triable under thisChapter, he can proceed to frame the charge asprovided therein after following the procedure. Atthat time no such grievance for allowing the cross examination of the witnesses has been given. In this circumstan ces, the impugned order cannot be sustained.

The reliance has been placed by the learnedadvocate on the judgment reported in AIR 2009 Supreme Court Ajoy KumarGhose Vs. State of Jharkhand & Anr. It isrequired to be mentioned that in this judgment alsowhat has been provided and observed is that thetrial Court cannot proceed to frame the chargewithout taking any evidence and following theprocedure provided u/s 244 of the Code of Criminal Procedure. The observation has been madein the order of the Hon''ble Apex Court regarding recording of the evidence u/s 244 beforethe charge is framed. In the facts of the case, it is not that the witnesses of the complainant havenot been examined, therefore, the evidence has beenrecorded. Therefore, at that stage the opportunitywas available with the accused as provided under law to cross examine the witnesses, however, it isnot availed of by exercising the right of crossexamination. It cannot be said that the procedure,as required, is not followed. Therefore, theobservation made by the learned Sessions Judgerelying on this judgment are misconceived.

In the circumstances, the present petitiondeserves to be allowed and accordingly standsallowed. Prayer in terms of para-15(a) is granted.The impugned order passed in Criminal RevisionApplication No.56 of 2011 passed by the SessionsCourt (Main) Gandhinagar dated 18.07.2011 is herebyquashed and set aside. Rule made absolute. Directservice is permitted.