MOHIT KUMAR KANKAR Vs. STATE OF U P

JUDGEMENT

(1.) Through this petition, the petitioners have challenged the order of framing of charge dated 11.11.2014 passed by the Addl. Chief Judicial Magistrate, Court No.4, Aligarh in Case No.579 of 2012 (Yatindra Kumar Vs. Mohit Kumar Kankar and another) under Section 246 of the Code of Criminal Procedure (for short "Cr.P.C.") in a warrant case instituted other than police report.

(2.) The fact in short giving rise to the present dispute are that an application under Section 156 (3) Cr.P.C. was moved by opposite party no.2 on 30.11.2012, which was treated as complaint by the trial court vide order dated 19.12.2012. In the said complaint, opposite party no.2 alleged that he and petitioner no.1 were the friends and one and a half years ago, petitioner no.1 borrowed Rupees one lakh from him and again after six months, he (petitioner no.1) borrowed Rupees one lakh from him (opposite party no.2), but when petitioner no.1 failed to return the money in cash, he gave a cheque of Rupees two lakh dated 8.11.2012 but the cheque was dishonoured as the account was closed. On 25.11.2012, it is alleged that the petitioners came to the shop of the informant and they used abusive language and threatened him to kill. The application moved by opposite party no.2 under Section 156 (3) Cr.P.C. was treated as complaint and opposite party no.2 was examined under Section 200 Cr.P.C before the trial court and one Vishal Kumar was examined as witness under Section 202 Cr.P.C. Learned Addl. Chief Judicial Magistrate, Aligarh proceeded to summon the petitioners vide order dated 4.6.2013 on the basis of the aforesaid evidence. On 11.11.2014, the trial court proceeded to frame charge against the petitioners under Sections 323, 504, 506 & 379 IPC. It is this order, which is under challenge in this petition.

(3.) Submission of learned counsel for the petitioners is that without recording evidence as contemplated under Section 244 Cr.P.C., learned Magistrate has proceeded to frame the charge. Submission is that the charge could not have been framed without giving opportunity of cross-examination in respect of the evidence adduced under Section 244 (1) Cr.P.C. Learned counsel submits that non-examination of witnesses in the presence of the accused persons and further denying them right to cross-examine the witnesses will prejudice their case and the veracity of the allegations will not be established in a correct manner. Submission is that charge, which has been framed without recording evidence under Section 244 Cr.P.C. is wholly illegal and phrase occurring in Section 246 Cr.P.C. "or at any previous stage of the case" does not mean that any evidence which has been recorded at the time of summoning could be used for the purpose of framing of charge. Learned counsel submits that the evidence as required under Section 3 and Section 138 of the Indian Evidence Act is the proper evidence to be considered and a right to cross-examine cannot be foreclosed before framing the charge. If such right is foreclosed, then authenticity of the evidence cannot be judged by the trial court and the truth will not come to light. He has placed reliance upon the judgment rendered by the Apex Court in the case of Sunil Mehta and Anr. v. State of Gujarat and Anr., 2013 9 SCC 209.