Vasanthi vs Ramaswami and others

Padmini Jesuddurai, J.—This appeal has been preferred by the complainant in a case instituted on her complaint against the respondents for

offences under Sections 494 and 495 read with 109, I.P.C. and is directed against the acquittal of the respondents u/s 248(1), Cr.P.C. by the trial

Court on the ground that the complainant has failed to produce the witness for further cross-examination u/s Section 246(4), Cr.P.C. and also on

the ground that the complainant herself was absent on the day fixed for such further cross-examination.

The appellant filed the case against the respondents and u/s 244, Cr.P.C. she had examined herself and another witness. On the basis of the

evidence of these two witnesses, the trial Court had framed charges u/s 246(1), Cr.P.C. against the respondents for offences under sections 494

and 495 read with 109, I.P.C., P.Ws. 1 and 2 had not been cross-examined when they were examined u/s 244, Cr.P.C. The respondents

decided to cross-examine P.Ws. 1 and 2 u/s 246(4), Cr.P.C. The case had been posted to 13-3-1984 for cross-examination. On that date, the

appellant was absent and the other witness P.W. 2 was also absent. The learned Magistrate examined the Court Peon Perumal as C.W. 1 to show

that the appellant was absent and thereafter observing that the appellant had not proved her case against the respondents, acquitted them u/s

248(1), Cr.P.C. Challenging the acquittal, this appeal has been filed by the aggrieved complainant.

Thiru C. S. Dhanasekaran, the learned Counsel for the appellant would contend that the procedure adopted by the trial Court in acquitting the

respondents u/s 248(1), Cr.P.C. was contrary to the provisions of the Code as well as to the decided cases. The learned Counsel would submit

that the trial Court having found the material sufficient to frame charges, had no further material after the framing of charges to record an acquittal

on the ground that the complainant had not proved the case against the respondents. If the complainant or her witness was absent, it was the duty

of the trial Court to get them, if need be, by coercive process provided under the Criminal Procedure Code. An acquittal u/s 248(1), Cr.P.C. on

that ground could not be rendered.

Per contra, the learned Counsel for the respondents Thiru V. Srinivasan would contend that only if the appellant had prayed for summons to her

witnesses, the Court was bound to get the witness and that in the instant case, there was nothing to indicate that the appellant had asked for

summons for witnesses.

The only question for determination is whether, once the trial Court has framed charges u/s 246(1), Cr.P.C., it could acquit the accused u/s

248(1) merely on the ground that the complainant and her witness examined prior to the framing of the charges were not available for cross-

examination u/s 246(1), Cr.P.C.

Chapter XIX-B of the Criminal Procedure Code formulates the procedure that has to be followed in warrant cases instituted otherwise than on

a police report. Initially the complainant offers evidence u/s 244, Cr.P.C. and if the Magistrate finds that there is no evidence, which if unrebutted,

would warrant the conviction of the accused, the Magistrate should discharge the accused u/s 245(1), Cr.P.C. If on the other hand, the Magistrate

is of the opinion that there is ground for presuming that the accused has committed the offence triable by him, he should frame charges u/s 246(1),

Cr.P.C. The charges are to be read over and explained to the accused and the plea of the accused to be recorded. If thereafter, the accused

desires to cross-examine any of the witnesses already examined by the complainant, it shall be the duty of the learned Magistrate to recall such of

those witnesses, whom the accused desire to cross-examine and make them available for cross-examination. After such cross-examination and re-

examination u/s 246(5), Cr.P.C., the Magistrate shall discharge those witnesses. Thereafter, witnesses not examined u/s 244, Cr.P.C. could be

called and examined. The accused is then called upon to enter upon his defence and to adduce evidence if he so desires and after that, the

Magistrate has to consider the evidence available against the accused and if he finds that the accused are not guilty, he shall record an order of

acquittal u/s 245(1), Cr.P.C.

The above provisions would clearly indicate that once the Magistrate had chosen to frame charges against the accused on the ground that there

are grounds for presuming that the accused has committed an offence, if there is to be an acquittal, it can only be u/s 248(1), Cr.P.C. To render a

finding that the accused are not guilty, it is necessary for the Magistrate to appreciate the evidence already on record, give reasons for rejecting that

evidence and then hold that the accused are not guilty and record an acquittal. Merely because the complainant or her witnesses are not available

for cross-examination u/s 246(4), Cr.P.C., the Magistrate cannot record an acquittal u/s 248(1), Cr.P.C. that the complainant had not proved her

case. The learned Counsel for the appellant rightly relies upon a decision of this Court in Kanagasabai Ammal v. P. Subramanian, 1989 MLW 462

wherein a learned Judge of this Court while dealing with Section 244, Cr.P.C. has held that the Magistrate cannot discharge the accused without

ascertaining whether summons have been served or not and without taking all possible steps for securing those witnesses. These observations

made with reference to Section 244, Cr.P.C. would apply with greater force to witnesses to be recalled u/s 246(5), Cr.P.C. A reading of Section

246(5), Cr.P.C. would show that if the accused expresses the wish to cross-examine any of the prosecution witnesses whose evidence had

already been taken, the witness so named by him, shall be recalled and could be discharged only after cross-examination and re-examination, if

any. The sub-section casts an express duty upon the Court to see that those witnesses are recalled, detailed till the cross-examination and re-

examination are over and only thereafter the Court is to discharge those witnesses.

In the instant case, when the Magistrate found that the appellant as well as P.W. 2 were absent, it was the duty of the learned Magistrate to

have procured the complainant as well as P.W. 2, if need be, by coercive process, make them available to the respondents for cross-examination

and thereafter proceed according to law. It was not open to him to acquit the accused merely on the ground that the witness already examined by

the prosecution were not made available for cross-examination. The order of acquittal, being illegal, has to be set aside and retrial has to be

ordered.

In the result, the appeal is allowed, the order of acquittal is set aside and there shall be a retrial of the case.

Appeal allowed.