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Case Number

Crl. P. No. 368 of 89

Advocates

For the Appellant: B. Veerabhadra Rao, Advocate.
For the Respondent: C. Padmanabha Reddy (for No. 1), The Public Prosecutor for the State.

Judges

Bhaskar Rao, J.

Acts

sections 253(2) and 254 of the old Code (corresponding to sections 245(2)
section 253(2) (corresponding to sec. 245 of the present Code).
section 245 of the Code of Criminal Procedure
section 253(2), Criminal Procedure Code,
section 254, Criminal Procedure
section 245 Cr. P.C
section 252 Cr. P.C.
section 246 Cr. P.C
section 200 Cr. P.C,
section 244 Cr. P.C

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This petition under Section 482 of the Code of Criminal Procedure seeks quashing of the charges framed against the petitioners (accused). A private complainant (the 1st respondent) filed a complaint before a Magistrate under warrant procedure. The Magistrate issued process under Section 204 Cr.P.C., and the accused appeared in response. The petitioners' complaint in these quash proceedings is that the Magistrate framed charges against them and others without recording any evidence (indeed, no evidence at all was recorded), thereby denying them the opportunity to be considered for discharge under Section 245 Cr.P.C. The petition challenges the framing of charges as inconsistent with the procedural requirements prescribed in the Code of Criminal Procedure.

Legal Issues Presented

Whether a Magistrate may frame charges under Section 246 Cr.P.C. without first recording any evidence under Section 244 Cr.P.C., thereby bypassing the consideration of discharge under Section 245 Cr.P.C.
Whether the framing of charges in the present case (without recording any evidence) justified quashing of those charges under Section 482 Cr.P.C.

Arguments of the Parties

Petitioners' Arguments

The learned counsel for the petitioners (Shri Veerabhadra Rao) submitted that the Magistrate did not record any evidence under Section 244 Cr.P.C. and, as a consequence, the petitioners were denied the opportunity to be considered for discharge under Section 245 Cr.P.C.
The consequence of this procedural omission, the petitioners contended, is that the charges framed under Section 246 Cr.P.C. are not in accordance with law and must therefore be quashed.

The opinion does not contain a detailed account of the respondent's (complainant's) counter-arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Solomon v. Luke (1963) I AnWR p. 173	Interpretation of the phrase "at any previous stage of the case" (old Code sections corresponding to present Sections 245(2) and 246). Held that "previous stage" means a stage after recording some evidence (i.e., not before any evidence is recorded and not after entire evidence) and that the Magistrate may discharge on recording a few witnesses or on examination of the complainant.	The court relied on this interpretation to conclude that "previous stage" in Section 246(1) similarly means a stage after recording some evidence; therefore the Magistrate must examine the matter for discharge under Section 245 before resorting to Section 246 and cannot jump over Section 245 to frame charges.
Abdul Nabi v. Gulam Murthuza (AIR 1968 A.P. 93)	Held that "at any previous stage" (in corresponding provisions) means after Section 203 is passed and after some evidence is recorded under the relevant provision; the Magistrate cannot dismiss the complaint and discharge the accused before recording any evidence.	The court cited this authority to support the proposition that the Magistrate cannot discharge the accused before recording any evidence under Section 244 Cr.P.C., reinforcing the requirement that some evidence must be recorded before discharge or framing of charge.
Cricket Association of Bengal v. State of Bengal ((1971) 3 SCC 239 : AIR 1971 S.C. 1925)	Observation that the Magistrate cannot discharge the accused before recording any evidence (in the context of the same phrase in the old Code).	The court relied on this Supreme Court observation to reinforce that, for discharge under Section 245, the Magistrate must record some evidence; consequently, framing charges under Section 246 without such consideration is impermissible.
R.S. Nayak v. A.R. Antulay ((1986) 2 SCC 716 : AIR 1986 S.C. 2045)	Held that the stage for discharge under Section 245 is reached only after the evidence referred to in Section 244 is taken; however, the decision also observed that the stage at which framing is considered is a preliminary one and involves a prima facie test.	The court distinguished this decision: because in R.S. Nayak the charges were framed after the recording and cross-examination of 57 witnesses, the case did not require an interpretation of "at any previous stage" in Section 246(1). Thus R.S. Nayak was not treated as overruling or as settling the meaning of "previous stage" in the context of framing charges under Section 246.

Court's Reasoning and Analysis

The court examined the relevant Code provisions and preceding authorities to determine the proper procedural sequence when a complaint is presented in a warrant-case instituted otherwise than on police report:

Section 200 Cr.P.C. requires the Magistrate to examine the complainant on oath and witnesses, if any, when a complaint is presented.
Section 244 Cr.P.C. (Chapter XIX-B) mandates that, when the accused appears in such warrant-cases, the Magistrate "shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution." The Magistrate may also summon prosecution witnesses on application.
Section 245 Cr.P.C. contemplates discharge of the accused either (i) after taking all evidence referred to in Section 244, or (ii) at "any previous stage of the case" if, for reasons recorded, the Magistrate finds the charge groundless.
Section 246 Cr.P.C. provides that if, when such evidence has been taken, or at any previous stage, the Magistrate is of opinion that there is ground for presuming commission of an offence, he shall frame a written charge.

The court focused on the meaning of the phrase "at any previous stage of the case" appearing in Sections 245 and 246. Relying on Solomon v. Luke and Abdul Nabi v. Gulam Murthuza (and consistent Supreme Court observations in Cricket Association of Bengal), the court concluded that "previous stage" denotes a stage after recording some evidence but before recording the entire evidence — in other words, not a stage before recording any evidence at all. The decisions collectively show that the Magistrate must record at least some evidence (for example, examination of the complainant or some witnesses) before either discharging the accused under Section 245 or framing charges under Section 246.

The court also considered R.S. Nayak v. A.R. Antulay, noting that while that case observed that the discharge stage is reached only after evidence under Section 244, it did not address the precise interpretation of "previous stage" in the context of Section 246 because in that case charges were framed after extensive evidence (57 witnesses). Therefore, R.S. Nayak did not alter the established interpretation that some evidence must be recorded before discharge or framing.

Applying these principles to the facts before it, the court found that the Magistrate had framed charges without recording any evidence under Section 244 and thus had failed to afford the accused the procedural consideration contemplated by Section 245. Because the Magistrate effectively jumped over the step of examining some evidence and considering discharge, the framing of charges was held to be not in accordance with law.

Holding and Implications

Holding: The charges framed against the accused are quashed and the petition is allowed.

Implications:

The direct effect is that the impugned charges are set aside; the Magistrate below is directed to proceed afresh from the stage "on appearance of the accused" in pursuance of the process issued, and to follow the procedures mandated by Sections 200, 203, 244 and 245 Cr.P.C. (i.e., the Magistrate must record some evidence and consider discharge under Section 245 before framing charges under Section 246).
The opinion does not purport to lay down a new precedent beyond applying and following the existing case-law (as cited). The decision enforces the established procedural requirement that some evidence must be recorded before discharge or framing of charge; no broader or novel legal principle is announced beyond that application to the facts of this case.

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P. Ugender Rao & Ors. v. J. Sampoorna & Ors.

1. This is a petition filed under sec. 482 Cr. P.C to quash the charges framed against the petitioners-accused.

2. The complaint in these quash proceedings is that the Magistrate before whom the 1st respondent-complainant filed the complaint against the petitioners, has without recording any evidence-though not the entire evidence-framed charges against the petitioners and others under different heads, thereby denying them the opportunity of being considered for discharge in terms of section 245 of the Code of Criminal Procedure and therefore the charges are liable to be quashed. To appreciate the above submission of the learned counsel, Shri Veerabhadra Rao, it is necessary to advert to certain provisions in the Code that have bearing on the present matter. Whenever a complaint is presented before a Magistrate, section 200 Cr. P.C, obligates the Magistrate to examine the complainant on oath besides the witnesses, if any. After such an examination of the complainant and the witnesses, if any, and on consideration of the statements recorded so, in case the Magistrate is of opinion that there was no ground to proceed ahead with the complaint, he shall dismiss the complaint under Sec. 203 Cr. P.C, after recording his reasons therefor. In case the Magistrate is of the opinion that there is sufficient ground for proceeding ahead with the complaint he shall issue summons or warrant as the case may be. In the instant case, it is not in dispute, the Magistrate had issued process for appearance of the accused under sec. 204 of the Code of Criminal Procedure and in response thereto the accused-petitioners also appeared before him. Further this is a complaint instituted by a private party, i.e, the 1st respondent and the case is also one triable under warrant procedure. The procedure in such cases is laid down by Chapter XIX-B (trial of warrant cases instituted otherwise than on police report). Chapter XIX-B starts with section 244 Cr. P.C The section reads thus;

“244. Evidence for Prosecution:—

(1) When, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a Magistrate the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.”

3. Therefore, as per section 244 Cr. P.C, on the appearance of the accused the Magistrate shall hear the prosecution and take all such evidence as may be adduced. The contention of Mr. Veerabhadra Rao is that the Magistrate in this case has not recorded any, muchless the entire, evidence. Had the Magistrate recorded atleast some evidence the counsel submitted the accused-petitioners would have had an opportunity of being considered for discharge under sec. 245 Cr. P.C Section 245 reads;

“245. When accused shall be discharged: (1) If upon taking all the evidence referred to in Sec. 244 the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless”

(Stress is mine).

4. As seen, section 245 Cr. P.C; contemplates discharge of the accused at two stages, viz. (i) after recording of all the evidence referred to in sec. 244 and (ii) at any previous stage of the case.

5. It is section 246 Cr. P.C, that provides procedure in cases where the accused is not discharged. It runs as under:

“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”.

6. Thus, we again come across the phrase ‘at any previous stage of the case’ in section 246(1). The phrase as such was the subject-matter of interpretation by this Court in Solomon v. Luke (1963) I AnWR p. 173). Referring to the phrase ‘at any previous stage of the case’ occurring in sections 253(2) and 254 of the old Code (corresponding to sections 245(2) and 246 of the present Code), Justice Sharfuddin Ahmed held;

“Now sec. 253(1) provides for taking all the evidence referred to in sec. 252 and the order of discharge has to follow in the event the Magistrate finds that no case against the accused has been made out…… ‘Previous Stage’ in this context would be any stage before the recording of the entire evidence. To my mind, sub-section (2) empowers the Magistrate to discharge the accused if he finds the charge to be groundless on recording a few witnesses or even on examination of the complainant. The restriction imposed in sub-section (1) has been relaxed as the Magistrate has been empowered to act under sub-sec. (2) if before completing the evidence he finds the charge to be groundless. It does not do away completely with the necessity of examining some witnesses or hearing the complainant to say the least before recording an order of discharge. The words ‘previous stage’ also, appear in sec. 254 Criminal Procedure Code Therein the Magistrate has been empowered to frame a charge at any previous stage of the case if there is ground for presuming that the accused has committed an offence. The interpretation I have placed on the words ‘previous stage’ in section 253(2), Criminal Procedure Code, seems to be consistent with the use of the words and vesting of the power in the Magistrate to frame charge under section 254, Criminal Procedure Code”:

Previous stage, thus, is a stage after recording some evidence. It is neither a stage before recording of any evidence at all nor a stage after recording of the entire evidence but is in between. The interpretation, thus, placed on the words ‘at any previous stage of the case’ occurring in section 246(1) also appears to be more in consonance with the order of sections numbered in the Code and also with the heading given to sec. 246 viz. ‘Procedure where accused is not discharged’. The very heading of the section in fact indicates that it would come into play only after the matter was examined in the light of sec. 245 Cr. P.C, and the accused was not discharged thereunder. Therefore, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under sec. 245 Cr. P.C and it is only when he finds it otherwise he can have resort to section 246. In other words, a valuable right for consideration of the case of the accused for purposes of discharge is conferred by section 245 Cr. P.C Accordingly he cannot jump over section 245 Cr. P.C, and frame the charges under sec. 246 Cr. P.C

7. Again in Abdul Nabi v. Gulam Murthuza (AIR 1968 A.P page 93) this Court was to interpret the same phrase ‘at any previous stage’ occurring in section 253(2) (corresponding to sec. 245 of the present Code). While so interpreting this Court held:

“It can only mean that after the stage of section 203 is passed but some evidence is recorded under sec. 252 (corresponding to sec. 244 of the present Code) and before all the evidence referred to in Sec. 252 is recorded the Magistrate can discharge the accused. He cannot dismiss the complaint and discharge the accused before recording any evidence whatsoever under section 252 Cr. P.C. That will not only militate against the natural conclusion which must follow from the reading of Secs. 203 and 204 but would be contrary to Secs. 252 and 253 Cr. P.C, themselves”.

8. The Magistrate thus cannot discharge the accused before recording any evidence whatsoever under sec. 244 of the present Code. Exactly same is the observation of the Supreme Court in Cricket Association of Bengal v. State of Bengal ((1971) 3 SCC 239 : AIR 1971 S.C 1925) while dealing with the phrase in question occurring in sec. 253(2) Cr. P.C, of the old Code. In view of this case-law when, even for purposes of discharging the accused under section 245 Cr. P.C it is incumbent upon the Magistrate to record some evidence though not the entire evidence, under sec. 244 Cr. P.C, the case for framing of charges under sec. 246 Cr. P.C, is an a fortiori one and accordingly unless and until the matter receives consideration under sec. 245 Cr. P.C, the charges contemplated by sec. 246 Cr. P.C cannot be framed. No doubt, a decision of the Supreme Court in R.S Nayak v. A.R Antulay ((1986) 2 SCC 716 : AIR 1986 S.C 2045) is brought to my notice wherein, though it is held that the stage for discharge under S. 245 is reached only after the evidence referred to in S. 244 has been taken, it is observed the stage at which the Magistrate is required to consider the question of framing of charge is a preliminary one and the test of “prima facie” case has to be applied. As a matter of fact, the framing of charges was not challenged before the Supreme Court in the light of section 246 Cr. P.C Further admittedly in the case before the Supreme Court the charges were framed only after recording of evidence of as many as 57 witnesses, who were also cross-examined. These facts did not obviously, warrant an interpretation of the present phrase in question viz. ‘at any previous stage of the case’ occurring in sec. 246(1) Cr. P.C Therefore this decision in the light of the earlier decision of the Supreme Court in Cricket Association case ((1971) 3 SCC 239 : AIR 1971 S.C 1925) cannot be understood as one laying down the interpretation of the phrase ‘at any previous stage of the case’ occurring in sec. 246 Cr. P.C

9. For the aforementioned reasons, the charges framed against the accused in the instant case are not in accordance with law and therefore they are quashed. The Court below is, however directed to proceed from the stage ‘on appearance of the accused’ in pursuance of the process issued in the light of the law hereinbefore dealt with.

10. The petition is accordingly allowed.

P. Ugender Rao & Ors. v. J. Sampoorna & Ors.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

P. Ugender Rao & Ors. v. J. Sampoorna & Ors.

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