SHANKAR RAO Vs. BABURAD

JUDGEMENT

(1.) REVISION petitioner filed a complaint against the respondents 1 and 2 alleging commission of an offence punishable under Sec. 380 I.P.C. The trial Court convicted and sentenced them. In the appeal filed, the Sessions Court set aside the conviction and sentence and remanded the case for a fresh trial from the stag of charge.

(2.) THE trial Court remanded the case solely on the ground of non -compliance of section 246 (1) Cr.P.C Section 246 deals with the procedure to be followed where the accused is not discharged. It states that if there is ground for presuming that the accused has committed an offence, the Magistrate shall frame charge, read and explain the same to the accused and record his plea. In case of the accused pleading not guilty, the accused shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross -examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. According to the appellate Court, immediately after framing charge, the Magistrate required the accused to state whether they desire to cross -examine the prosecution witnesses and this was done without recording reasons. This view is the result of a mechanical way of understanding Sec. 246 (1). The purpose of the provision is to enable a fair trial. The accused must be asked whether he desires to cross -examine the witness before framing the charge and if he so desires, an opportunity must be given to him. He should not be taken by surprise. He should be given sufficient time to ponder over the matter. This does not mean that an adjournment should be compelled on an accused who had already made up his mind to cross -examine the witnesses. Charge was framed on 26.7.83. First of the prosecution witnesses was cross -examined only on 26.8.83. There has been no failure of justice. The appellate Court was not justified in remanding the case.

(3.) IT is necessary that the appellate Court re -hears the appeal and dispose of the same on merits without any delay.