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      REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      327        OF 2013 (Arising out of S.L.P. (Crl.) No.374 of 2012)

Sunil Mehta & Anr. …Appellants

Versus

State of Gujarat & Anr. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. The short question that falls for our determination in this  

appeal is whether depositions of the complainant and his  

witnesses  recorded  under  Chapter  XV  of  the  Code  of  

Criminal Procedure, 1973 before cognizance is taken by  

the  Magistrate  would  constitute  evidence  for  the  

Magistrate  to frame charges against  the accused under  

Part  B  of  Chapter  XIX  of  the  said  Code.  The  question  

arises in the following backdrop:

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3. A complaint  alleging commission of  offences  punishable  

under Sections 406, 420 and 114 read with Section 34 of  

the  Indian  Penal  Code,  1860  was  filed  by  respondent  

No.2-Company  before  the  Chief  Judicial  Magistrate,  

Gandhi Nagar, Gujarat. The Magistrate upon examination  

of the complaint directed an enquiry in terms of Section  

156(3) of the Cr.P.C. by the jurisdictional police station.  

The report received from the police suggested that the  

dispute between the parties was of a civil nature in which  

criminal proceedings were out of place. The Chief Judicial  

Magistrate  was  not,  however,  satisfied  with  the  police  

enquiry  and  the  conclusion,  and  hence  conducted  an  

enquiry in terms of Section 202 of the Cr.P.C. and issued  

process  against  the  appellants  for  offences  punishable  

under Sections 406 read with 114 IPC.   

4. Aggrieved,  the appellants  unsuccessfully  questioned the  

summoning order before the High Court in Criminal Misc.  

Application No.10173 of 2010. Inevitably the matter came  

up before the trial Court under Section 244 of the Cr.P.C.  

where the accused appeared pursuant to  the summons  

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issued  by  the  Court.  Instead  of  adducing  evidence  in  

support of the prosecution as mandated by Section 244,  

the complainant filed a pursis (memo) stating that he did  

not  wish  to  lead  any  additional  evidence  and  that  the  

evidence  submitted  along  with  the  complaint  may  be  

considered  as  evidence  for  purposes  of  framing  of  the  

charge.  The  Magistrate  took  the  pursis  on  record  and  

fixed the case for arguments on framing of charges. The  

appellants' case is that written submissions filed by them  

before the Magistrate raised a specific contention that no  

charge could be framed against them as the complainant  

had not led any evidence in terms of Section 244 of the  

Code  and  that  the  depositions  recorded  before  the  

Magistrate under Section 202 of the Cr.P.C. could not be  

considered  as  evidence  for  the  purposes  of  framing  of  

charges.  The  Magistrate,  however,  brushed  aside  that  

contention  and  framed  charges  against  the  appellants  

under Sections 406 and 420 read with Section 34 of the  

IPC.

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5. Aggrieved by the order passed by the Magistrate, the  

appellants preferred Criminal Revision Application No.56 of  

2011  before  the  Sessions  Judge  at  Gandhi  Nagar  who  

allowed  the  same  by  his  order  dated  18th July,  2011  

primarily  on  the  ground  that  non-compliance  with  the  

provisions  of  Section  245(2)  of  the  Cr.P.C.  rendered  the  

order passed by the Magistrate unsustainable.  The Sessions  

Judge accordingly remitted the matter back to the trial Court  

with a direction to proceed in accordance with the provisions  

of  Sections  244 to  247 of  the  Code keeping  in  view the  

decision of this Court in  Ajoy Kumar Ghose v. State of   

Jharkhand and Anr. (2009) 14 SCC 115.

6. Undeterred  by  the  revisional  order  the  respondent-

company filed Special Criminal Application No.1917 of 2011  

before  the  High  Court  of  Gujarat  at  Ahmedabad  which  

application has been allowed by the High Court in terms of  

the order impugned before us. The High Court observed:

“In  the  facts  of  the  case,  it  is  not  that  the   witnesses  of  the  complainant  have  not  been  examined,  therefore,  the  evidence  has  been  recorded.  Therefore,  at  that stage the opportunity   was available with the accused as provided under law  to cross examine the witnesses,  however,  it  is  not   

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availed  of  by  exercising  the  right  of  cross   examination. It cannot be said that the procedure, as   required, is not followed.  Therefore, the observation   made by the learned Sessions Judge relying on this   judgment are misconceived.”     

7. It  is  difficult  to  appreciate  the  logic  underlying  the  

above  observations.  It  appears  that  the  High  Court  

considered  the  deposition  of  this  complainant  and  his  

witnesses  recorded before the appearance of  the accused  

under  Section  202  of  the  Cr.P.C.  to  be  ‘evidence’  for  

purposes of framing of charges against the appellants. Not  

only  that,  the  High  Court  by  some  involved  process  of  

reasoning held that the accused persons had an opportunity  

to cross-examine the witnesses when the said depositions  

were recorded. The High Court was, in our opinion, in error  

on both counts. We say so for reasons that are not far to  

seek. Chapter XV of the Code of Criminal Procedure, 1973  

deals  with  complaints  made  to  Magistrates.  Section  200  

which appears in the said Chapter  inter alia  provides that  

the  Magistrate  taking  cognizance  of  an  offence  on  a  

complaint shall examine upon oath the complainant and the  

witnesses  present,  if  any,  and  the  substance  of  such  

examination shall be reduced to writing and signed by the  

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complainant and the witnesses, as also the Magistrate.  An  

exception to that general rule is, however, made in terms of  

the proviso to Section 200 in cases where the complaint is  

made by a public servant acting or purporting to act in the  

discharge of his official duties, or where a Court has made  

the complaint,  or the Magistrate makes over the case for  

enquiry or trial by another Magistrate under Section 192 of  

the Cr.P.C.   

8. Section  201  deals  with  the  procedure  which  a  

Magistrate not competent to take cognizance of the case is  

required to follow. Section 202 empowers the Magistrate to  

postpone the issue of process against the accused either to  

inquire into the case himself or direct an investigation to be  

made by a police officer for the purpose of deciding whether  

or not there is sufficient ground for proceeding. Sub-section  

(2)  of  Section  202  empowers  the  Magistrate  to  take  

evidence  of  witnesses  on  oath  in  an  inquiry  under  sub-

section (1) thereof.   Section 203, which is the only other  

provision appearing in Chapter XV, empowers the Magistrate  

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to  dismiss  the  complaint  if  he  is  of  the  opinion  that  no  

sufficient ground for proceeding with the same is made out.  

9. There is no gainsaying that a Magistrate while taking  

cognizance of an offence under Section 200, whether such  

cognizance  is  on  the  basis  of  the  statement  of  the  

complainant and the witnesses present or on the basis of an  

inquiry  or  investigation  in  terms  of  Section  202,  is  not  

required  to  notify  the  accused  to  show  cause  why  

cognizance should not be taken and process issued against  

him or to provide an opportunity to him to cross-examine  

the complainant or his witnesses at that stage.

10. In contra distinction, Chapter XIX of the Code regulates  

trial of warrant cases by Magistrates. While Part A of that  

Chapter deals with cases instituted on a police report, Part B  

deals with cases instituted otherwise than on a police report.  

Section 244 that appears in Part B of Chapter XIX requires  

the  Magistrate  to  “proceed  to  hear  the  prosecution”  and  

“take all  such evidence as may be produced in support of  

the  prosecution”  once  the  accused  appears  or  is  brought  

before  him.  Section  245  empowers  the  Magistrate  to  

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discharge the accused upon taking all the evidence referred  

to in Section 244, if he considers that no case against the  

accused  has  been  made  out  which  if  unrebutted  would  

warrant  his  conviction.  Sub-section  (2)  of  Section  245  

empowers the Magistrate to discharge an accused even “at  

any previous stage” if for reasons to be recorded by such  

Magistrate the charges are considered to be “groundless”. In  

cases where the accused is not discharged, the Magistrate is  

required to follow the procedure under Section 246 of the  

Code. That provision may at this stage be extracted:  

“246.  Procedure  where  accused  is  not  discharged -  

(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.  

(2) The charge shall then be read and explained to   the accused, and he shall be asked whether he pleads   guilty or has any defence to make.  

(3) If the accused pleads guilty, the Magistrate shall   record the plea, and may, in his discretion, convict   him thereon.  

(4) If the accused refuses to plead, or does not plead   or claims to be tried or if the accused is not convicted   under sub-section (3), he shall be required to state,   at  the  commencement  of  the  next  hearing  of  the  

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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.  

(5) If he says he does so wish, the witnesses named  by him shall be recalled and, after cross-examination   and re-examination (if any), they shall be discharged.   

(6) The evidence of any remaining witnesses for the   prosecution  shall  next  be  taken,  and  after  cross- examination and re-examination (if any), they shall   also be discharged.”  

11. A  simple  reading  of  the  above  would  show that  the  

Magistrate is required to frame in writing a charge against  

the accused “when such evidence has been taken” and there  

is ground for presuming that the accused has committed an  

offence triable under this Chapter which such Magistrate is  

competent to try and adequately punish.   

12. Sections  244 to  246 leave  no manner  of  doubt  that  

once  the  accused  appears  or  is  brought  before  the  

Magistrate  the  prosecution  has  to  be  heard  and  all  such  

evidence as is brought in support of its case recorded. The  

power  to  discharge  is  also  under  Section  245 exercisable  

only upon taking all  of the evidence that is referred to in  

Section 244, so also the power to frame charges in terms of  

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Section 246 has to be exercised on the basis of the evidence  

recorded  under  Section  244.  The  expression  “when  such  

evidence  has  been  taken”  appearing  in  Section  246  is  

significant and refers to the evidence that the prosecution is  

required to produce in terms of Section 244(1) of the Code.  

There is  nothing either  in the provisions of  Sections 244,  

245 and 246 or any other provision of  the Code for  that  

matter  to even remotely suggest  that evidence which the  

Magistrate  may  have  recorded  at  the  stage  of  taking  of  

cognizance and issuing of process against the accused under  

Chapter XV tantamounts to evidence that can be used by  

the Magistrate for purposes of framing of charges against  

the accused persons under Section 246 thereof without the  

same being produced under Section 244 of the Code. The  

scheme  of  the  two  Chapters  is  totally  different.  While  

Chapter XV deals with the filing of complaints, examination  

of  the  complainant  and  the  witnesses  and  taking  of  

cognizance on the basis thereof with or without investigation  

and inquiry, Chapter XIX Part B deals with trial of warrant  

cases instituted otherwise than on a police report.  The trial  

of an accused under Chapter XIX and the evidence relevant  

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to the same has no nexus proximate or otherwise with the  

evidence adduced at the initial stage where the Magistrate  

records depositions and examines the evidence for purposes  

of deciding whether a case for proceeding further has been  

made out. All  that may be said is that evidence that was  

adduced  before  a  Magistrate  at  the  stage  of  taking  

cognizance and summoning of the accused may often be the  

same  as  is  adduced  before  the  Court  once  the  accused  

appears  pursuant  to  the  summons.  There  is,  however,  a  

qualitative difference between the approach that the Court  

adopts  and  the  evidence  adduced  at  the  stage  of  taking  

cognizance and summoning the accused and that recorded  

at  the trial.  The difference  lies  in  the fact  that  while  the  

former is a process that is conducted in the absence of the  

accused,  the latter  is  undertaken in  his  presence with an  

opportunity to him to cross-examine the witnesses produced  

by the prosecution.   

13. Mr. U.U. Lalit, learned senior counsel appearing for the  

respondent-complainant  strenuously  argued  that  Section  

244 does not envisage, leave alone provide for in specific  

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terms,  cross-examination  of  witnesses  produced  by  the  

prosecution  by  the  accused.  He  submitted  that  since  the  

provision of Section 244 did not recognise any such right of  

an accused before framing of charges, it did not make any  

difference  whether  the  Court  was  evaluating  evidence  

adduced at the stage of cognizance and summoning of the  

accused or that adduced after he had appeared before the  

Magistrate  under  Section  244.  He  particularly  drew  our  

attention to sub-section (4) to Section 246 which requires  

the  Magistrate  to  ask  the  accused  whether  he  wishes  to  

cross-examine any, and if so, which of the witnesses for the  

prosecution  whose  evidence  has  been  taken.  It  was  

contended by Mr. Lalit that the provision of sub-section (4)  

to  Section  246  provides  for  cross-examination  by  the  

accused  only  after  charges  have  been  framed  and  not  

before. There is, in our opinion, no merit in that contention  

which needs to be noticed only to be rejected. We say so for  

reasons more than one.  In the first place, the expression  

“Magistrate shall proceed to hear the prosecution and take  

all  such  evidence  as  may  be  produced  in  support  of  the  

prosecution” appearing in Section 244 refers to  evidence  

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within the meaning of Section 3 of the Indian Evidence Act,  

1872.  Section 3 reads as under:

3. Interpretation clause -

In this Act the following words and expressions are  used  in  the  following  senses,  unless  a  contrary   intention appears from the context:— xx xx xx    “Evidence”.—“Evidence” means and includes—

(1) all  statements  which  the  Court  permits  or  requires  to  be  made before  it  by  witnesses,  in   relation to matters of fact under inquiry,  

such statements are called oral evidence; (2) all  documents  including  electronic  records   

produced for the inspection of the Court, such documents are called documentary evidence.”

14. We may also refer to Chapter X of the Evidence Act  

which  deals  with  examination  of  witnesses.  Section  137  

appearing  in  that  Chapter  defines  the  expressions  

examination-in-chief,  cross  and  re-examination  while  

Section 138 stipulates the order of examinations and reads  

as under:

“138. Order of examinations.- Witnesses shall be  first examined-in-chief, then (if the adverse party so   desires)  cross-examined,  then  (if  the  party  calling   him so desires) re-examined.  

The examination and cross-examination must   relate  to  relevant  facts,  but the cross-examination   need  not  be  confined  to  the  facts  to  which  the   witness testified on his examination-in-chief.

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Direction  of  re-examination.-  The  re- examination shall be directed to the explanation of   matters referred to in cross-examination; and, if new  matter is, by permission of the Court, introduced in   re-examination,  the  adverse  party  may  further   cross-examine upon that matter.”

15. It  is  trite  that  evidence  within  the  meaning  of  the  

Evidence Act and so also within the meaning of Section 244  

of the Cr.P.C. is what is recorded in the manner stipulated  

under  Section  138  in  the  case  of  oral  evidence.  

Documentary evidence would similarly  be evidence only if  

the documents  are  proved in  the manner  recognised  and  

provided  for  under  the  Evidence  Act  unless  of  course  a  

statutory  provision  makes  the  document  admissible  as  

evidence without any formal proof thereof.     

16. Suffice it to say that evidence referred to in Sections  

244,  245  and  246  must,  on  a  plain  reading  of  the  said  

provisions  and  the  provisions  of  the  Evidence  Act,  be  

admissible only if the same is produced and, in the case of  

documents,  proved  in  accordance  with  the  procedure  

established under the Evidence Act which includes the rights  

of  the parties  against  whom this  evidence is  produced to  

cross-examine the witnesses concerned.   

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17. Secondly, because evidence under Chapter XIX (B) has  

to be recorded in the presence of the accused and if a right  

of cross-examination was not available to him, he would be  

no more than an idle spectator in the entire process. The  

whole object underlying recording of evidence under Section  

244 after the accused has appeared is to ensure that not  

only  does  the  accused  have  the  opportunity  to  hear  the  

evidence adduced against him, but also to defend himself by  

cross-examining the witnesses with a view to showing that  

the witness is either unreliable or that a statement made by  

him does not have any evidentiary value or that it does not  

incriminate him.  Section 245 of the Code, as noticed earlier,  

empowers the Magistrate to discharge the accused if, upon  

taking  of  all  the  evidence  referred  to  in  Section  244,  he  

considers that no case against the accused has been made  

out which may warrant his  conviction.   Whether or not a  

case is made out against him, can be decided only when the  

accused  is  allowed  to  cross-examine  the  witnesses  for  

otherwise he may not be in a position to demonstrate that  

no  case  is  made  out  against  him  and  thereby  claim  a  

discharge under Section 245 of the Code.  It is elementary  

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that the ultimate quest in any judicial  determination is to  

arrive  at  the  truth,  which  is  not  possible  unless  the  

deposition  of  witnesses  goes  through  the  fire  of  cross-

examination.   In  a criminal  case,  using a statement  of  a  

witness  at  the  trial,  without  affording  to  the  accused  an  

opportunity to cross-examine, is tantamount to condemning  

him unheard.  Life and liberty of an individual recognised as  

the most valuable rights cannot be jeopardised leave alone  

taken away without conceding to the accused the right to  

question those deposing against him from the witness box.  

18. Thirdly, because the right of cross-examination granted  

to  an  accused  under  Sections  244  to  246  even  before  

framing of  the charges does  not,  in  the least,  cause any  

prejudice  to  the  complainant  or  result  in  any  failure  of  

justice,  while  denial  of  such  a  right  is  likely  and  indeed  

bound to prejudice the accused in his defence. The fact that  

after  the  Court  has  found  a  case  justifying  framing  of  

charges  against  the  accused,  the  accused  has  a  right  to  

cross-examine  the  prosecution  witnesses  under  Section  

246(4) does not necessarily mean that such a right cannot  

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be conceded to the accused before the charges are framed  

or that the Parliament intended to take away any such right  

at the pre-charge stage.  

19. We  are  supported  in  the  view  taken  by  us  by  the  

decision of this Court in  Ajoy Kumar Ghose (supra). That  

was a case where the trial Court had framed charges against  

the accused without  the prosecution  having  any evidence  

whatsoever in terms of Section 244 of the Cr.P.C. This Court  

held that the procedure adopted by the trial Court was not  

correct because the language of Section 246(1) Cr.P.C. itself  

sufficiently indicated that charges have to be framed against  

the accused on the basis of some evidence offered by the  

complainant  at  the  stage  of  Section  244(1).  This  Court  

observed:

“The language of the Section clearly suggests that it   is  on  the  basis  of  the  evidence  offered  by  the   complainant at the stage of Section 244(1) Cr.P.C.,  that the charge is to be framed, if the Magistrate is   of  the  opinion  that  there  is  any  ground  for   presuming  that  the  accused  has  committed  an   offence  triable  under  this  Chapter.  Therefore,   ordinarily,  when  the  evidence  is  offered  under   Section 244 Cr.P.C.  by  the  prosecution,  the  Magistrate has to consider  the same,  and if  he is   convinced, the Magistrate can frame the charge.”  

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20. This Court further clarified that the expression “or at  

any previous stage of the case” appearing in Section 246(1)  

did not imply that a Magistrate can frame charges against an  

accused even before any evidence was led under Section 24.  

This  Court  approved  the  decision  of  the  High  Court  of  

Bombay in Sambhaji Nagu Koli v. State of Maharashtra   

1979  Cri  LJ  390  (Bom),  where  the  High  Court  has  

explained  the  purport  of  the  expression  “at  any  previous  

stage of the case”.  The said expression, declared this Court,  

only meant that the Magistrate could frame a charge against  

the  accused  even  before  all  the  evidence  which  the  

prosecution proposed to adduce under Section 244(1) was  

recorded and nothing more. This Court observed:

“44. In Section 246 Cr.P.C. also, the phraseology is   "if, when such evidence has been taken", meaning   thereby,  a  clear  reference  is  made  to   Section 244 Cr.P.C. The Bombay High Court came to  the  conclusion that  the  phraseology would,  at  the   most, mean that the Magistrate may prefer to frame  a charge, even before all the evidence is completed.   The  Bombay  High  Court,  after  considering  the  phraseology, came to the conclusion that the typical   clause  did  not  permit  the  Magistrate  to  frame  a   charge, unless there was some evidence on record.   For  this,  the  Learned  Single  Judge  in  that  matter   relied  on  the  ruling  in  Abdul  Nabi  v.  Gulam  Murthuza Khan 1968 Cri LJ 303 (AP).”

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21. More  importantly,  this  Court  recognised  the  right  of  

cross-examination as a salutary right to be exercised by the  

accused when witnesses are offered by the prosecution at  

the stage of Section 244(1) of the Code and observed:     

“51.  The  right  of  cross-examination  is  a  very   salutary  right  and  the  accused  would  have  to  be   given  an  opportunity  to  cross-examine  the   witnesses,  who have been offered  at  the stage of   Section 244(1) Cr.P.C.  The  accused  can  show,  by  way  of  the  cross-examination,  that  there  is  no  justifiable ground against him for facing the trial and  for that purpose, the prosecution would have to offer   some evidence. While interpreting this Section, the   prejudice likely to be caused to the accused in his   losing an opportunity to show to the Court that he is   not liable to face the trial on account of there being   no evidence against him, cannot be ignored.”

22. In Harinarayan G. Bajaj v. State of Maharashtra &  

Ors. (2010) 11 SCC 520, this Court reiterated the legal  

position stated in Ajoy Kumar Ghose (supra) and held that  

the right of an accused to cross-examine witnesses produced  

by the prosecution before framing of a charge against him  

was a valuable right.  It was only through cross-examination  

that the accused could show to the Court that there was no  

need for a trial against him and that the denial of the right  

of  cross-examination  under  Section  244 would amount  to  

denial  of  an  opportunity  to  the  accused  to  show  to  the  

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Magistrate  that  the  allegations  made  against  him  were  

groundless  and  that  there  was  no  reason  for  framing  a  

charge  against  him.  The  following  passages  are  in  this  

regard apposite:

“18. This Court has already held that right to cross- examine  the  witnesses  who  are  examined  before   framing  of  the  charge  is  a  very  precious  right   because  it  is  only  by  cross-examination  that  the   accused can show to the Court that there is no need   of a trial against him. It is to be seen that before   framing  of  the  charge  under  Section 246,  the  Magistrate has to form an opinion about there being   ground  for  presuming  that  the  accused  had  committed offence triable under the Chapter. If it is   held  that  there  is  no  right  of  cross-examination   under Section 244,. then the accused would have no  opportunity  to  show  to  the  Magistrate  that  the   allegations are groundless and that there is no scope   for framing a charge against him.

xx xx xx

20.  Therefore,  the  situation  is  clear  that  under   Section 244,  Cr.  P.C.  the  accused  has  a  right  to   cross-examine the witnesses  and in  the  matter  of   Section 319,  Cr.P.C.  when  a  new  accused  is   summoned,  he  would  have  similar  right  to  cross- examine  the  witness  examined  during  the  inquiry   afresh. Again, the witnesses would have to be re- heard and then there would be such a right. Merely   presenting  such  witnesses  for  cross-examination   would be of no consequence.”

23. In the light of what we have said above, we have no  

hesitation in holding that the High Court fell in palpable error  

in interfering with the order passed by the Revisional Court  

of  Sessions  Judge,  Gandhi  Nagar.   The  High  Court  was  

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particularly  in  error  in  holding  that  the  appellant  had  an  

opportunity to cross-examine the witnesses or that he had  

not availed of the said opportunity when the witnesses were  

examined at the stage of proceedings under Chapter XV of  

the  Code.   The  High  Court,  it  is  obvious,  has  failed  to  

approach  the  issue  from  the  correct  perspective  while  

passing the impugned order.   

24. In the result we allow this appeal with costs assessed  

at Rs.50,000/-, set aside the order passed by the High Court  

and restore that passed by the Sessions Judge. The costs  

shall be deposited by respondent No.2-company in the SCBA  

Lawyers'  Welfare  Fund  within  two  weeks  of  the  

pronouncement of this order.                 

….....………………...…………………...…J. (T.S. THAKUR)

…....…………………... …………………...…J.

(SUDHANSU JYOTI MUKHOPADHAYA)

New Delhi February 20, 2013

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