DHANESH Vs. RAM KUMAR S O NANDLALJI MANSUKHANI

JUDGEMENT

(1.) It is the submission of Shri Purohit that the learned Magistrate was obliged to follow the procedure which has been laid down in Chapter XIX of Criminal Procedure Code, 1973 (hereafter referred to as the Code for convenience). He argued that when the accused appeared before the learned Magistrate in view of the warrants which were issued against them, it was incumbent on the part of Magistrate to record the evidence of prosecution witnesses which were to be examined on behalf of complainant and thereafter by giving opportunity of cross-examination to the applicants, the Magistrate should have thought of framing charge against applicants. He further submitted that without recording the evidence of prosecution witnesses the learned Magistrate has framed charge against the applicants and, therefore, the said act is nothing but illegality which needs to be set aside by this Court by allowing this application.

(2.) Shri Oberoi appearing for non-applicant pointed out provisions of Section 246 of the Code and submitted that in sub-Section (1) it has been indicated that 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. According to Shri Oberoi, the Magistrate can frame the charge in view of provisions of sub-Section (1) of Section 246 of the Code without examining the prosecution witnesses.

(3.) Shri Oberoi submitted that in view of the judgement of Supreme Court in the matter of K. M. Mathew v. State of Kerala, (AIR 1992 SC 2206 : (1992 Cri LJ 3779), the accused can raise all such objections before the Magistrate before whom he had appeared in response to warrant issued against him. For the purpose of assisting the Court, Shri Oberoi answering the query of the Court, pointed out the judgement of Supreme Court in the matter of R. S. Nayak v. A. R. Antulay, (1986 Cri LJ (SC) 313) : (1986) Cri LJ 1922), in which the Supreme Court has made observations on the point relevant to the application which is before this Court for decision. In the said judgement the Supreme Court has pointed out that "under the scheme of the Code there is no scope for the accused to lead defence evidence until the prosecution is closed and the examination of the accused under Section 313 of the Code is over. With the amendment of the Code of 1898 in 1955 and under the new Code of 1973 the procedure relating to all varieties of criminal trials, excepting warrant cases on private complaints, has been simplified. The procedure in respect of trials according to warrant procedure in private complaints, however, continues to be cumbersome and time-taking and it is for Parliament to simplify the procedure for such cases keeping all aspects in view."