Vijay Pal Dalmia, Advocate
Supreme Court of India and High Court of Delhi
Partner Vaish Associates Advocates
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Under the Code of Criminal Procedure, there are two major classifications of criminal cases, namely,
- police case,
- So far as a police case is concerned, it is instituted on a police report under Section 173 Cr.P.C. After supply of copies, under Section 207 Cr.P.C., accused can seek discharge from the case. That will be dealt with under Sections 239, 240 Cr.P.C.
- And, private case.
- There is no discharge in summons-cases.
Among them, there are further classifications, namely, warrant-case, summons-case, summary-trial case and sessions case.
All these type of cases may arise out of police case and also private case.
Likewise, in a private-case, there is a provision for discharge of the accused from the case.
However, there is major distinction as regards discharge of an accused from a warrant-case instituted upon a police report and a warrant-case instituted upon a private complaint filed under Section 200 Cr.P.C.
- In the warrant-case instituted upon police complaint, the Magistrate has to consider the Final Report, statement of witnesses recorded under Section 161 Cr.P.C., documents, if he feels necessary he can examine the accused also and if he finds the charges (allegations) are groundless, he can discharge the accused under Section 239 Cr.P.C., or frame charges under Section 240 Cr.P.C.
- However, in a case instituted upon a private complaint, the procedure for charge or discharge is completely different from a police case.
A close reading of Section 245(2) Cr.P.C., would show that
- in a warrant-case instituted upon a private complaint, after
recording evidence, discharge petition can be entertained.
- In a police case there will be only one cross-examination.
- However, in a private complaint case, there will be two cross-examinations.
- In a police case, trial commences on issuing copies under Section 207 Cr.P.C.
- But, in a private complaint case, trial will commence only after framing charges under Section 246 Cr.P.C., that will be only after recording evidence under Section 244 Cr.P.C.
- While recording preliminary evidence under Section 244 Cr.P.C., the accused can cross-examine the witnesses then and there or he may defer the cross to be done after framing of the charges.
- After framing of charges, again the accused can cross-examine the witnesses.
That is how, in a private complaint case, the accused will have two cross-examinations.
- But, it is pertinent to note that at this stage the quantum of evidence adduced is not the choice of the accused, it is the choice of the complainant, which would be sufficient to frame charges in the opinion of the complainant.
In the case of R.Rengarajan -vs- A.Vasudevan (C.R.L.RC(MD) No.401 of 2015 and M.P.(MD) No.1 of 2015 (BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT) http://judis.nic.in/HCS/list_new2_Pdf.asp?FileName=98754&Table_Main_Txt=Chennai_Judgments_Pdfs, it has been held as under:
Section 245(1) Cr.P.C., begins with the words that, if upon such consideration. It shows that the Magistrate should consider the evidence adduced under Section 244 Cr.P.C. and if he sees that no case has been made out against the accused, that is, if unrebutted it would not warrant a conviction, there is prima facie case, then he will discharge the accused from the case under Section 245(1) Cr.P.C. Otherwise, he will frame a charge under Section 246(1) Cr.P.C.
It is pertinent to note that under Section 245(2) Cr.P.C., at any previous stage of the case, if the charge is groundless, he can discharge the accused. So also at any previous stage of the case, if there is a ground for presuming that the accused has committed an offence, the Magistrate can frame charge.
The Hon'ble Supreme Court AJOY KUMAR GHOSE Versus STATE OF JHARKHAND & ANR. (CRIMINAL APPEAL NO.485 OF 2009) https://supremecourtofindia.nic.in/jonew/judis/34080.pdf has held resolving the controversy as under:
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.
- 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 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.
Now the question is, "what is that "previous stage".
- 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
- 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 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.
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 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.
- The 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.
- Under Section 245(2) Cr.P.C., there could be a discharge at any previous stage which there is a necessary sequel, that an application for discharge 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.
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.
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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