SUNIL MEHTA & ANR. versus STATE OF GUJARAT & ANR.

SUNIL MEHTA & ANR.v.

STATE OF GUJARAT & ANR.(Criminal Appeal No. 327 of 2013)

FEBRUARY 20, 2013

[T.S. THAKUR AND SUDHANSU JYOTIMUKHOPADHAYA, JJ.]

CODE OF CRIMINAL PROCEDURE, 1973:

ss. 244 and 246 – Evidence for purposes of framing ofcharge in complaint case – Plea of complainant thatevidence adduced under Chapter XV be treated as evidencefor purposes of framing of charge – Held: Is untenable – In acriminal case, using statement of witness at the trial,without affording to accused an opportunity to cross-examine,is tantamount to condemning him unheard – The processunder Chapter XV is conducted in the absence of accused,whereas evidence within the meaning of Evidence Act andso also within the meaning of s.244, Cr.P.C. is what isrecorded in the manner stipulated u/s 138 of Evidence Act –The whole object underlying recording of evidence u/s 244after accused has appeared, is to ensure that not only doesthe accused have opportunity to hear the evidence adducedagainst him, but also to defend himself by cross-examiningthe witnesses – Evidence Act, 1872 – ss. 3 and 138.

In the instant appeal filed by the accused, thequestion for consideration before the Court was: whetherdepositions of the complainant and his witnessesrecorded under Chapter XV of the Code of CriminalProcedure, 1973 before cognizance was taken by theMagistrate would constitute evidence for the Magistrateto frame charges against the accused under Part ofChapter XIX of the Code.

ANR.

Allowing the appeal, the Court

HELD: 1.1. In criminal case, using statement of awitness at the trial, without affording to the accused anopportunity to cross-examine, is tantamount tocondemning him unheard. Life and liberty of anindividual recognised as the most valuable rights cannotbe jeopardised leave alone taken away withoutconceding to the accused the right to question thosedeposing against him from the witness box. [para 17] [69-D-E]

1.2. The schemes of Chapters XV and XIX of theCode are totally different from each other. While ChapterXV deals with the filing of complaints, examination of thecomplainant and the witnesses and taking of cognizanceon the basis thereof with or without investigation andinquiry, Chapter XIX, Part deals with trial of warrantcases instituted otherwise than on police report. Thetrial of an accused under Chapter XIX and the evidencerelevant to the same has no nexus proximate orotherwise with the evidence adduced at the initial stagewhere the Magistrate records depositions and examinesthe evidence for purposes of deciding whether case forproceeding further has been made out. There is aqualitative difference between the approach that thecourt adopts and the evidence adduced at the stage oftaking cognizance and summoning the accused and thatrecorded at the trial. The difference lies in the fact thatwhile the former is process that is conducted in theabsence of the accused, the latter is undertaken in hispresence with an opportunity to him to cross-examine thewitnesses produced by the prosecution. [para 12] [65-G-H; 66-A-D]

1.3. The expression “Magistrate shall proceed to hearthe prosecution and take all such evidence as may beproduced in support of the prosecution” appearing in

As.244 refers to evidence within the meaning of s.3 of theIndian Evidence Act, 1872. Chapter X of the Evidence Actdeals with examination of witnesses and s 137 appearingin that Chapter defines the expressions examination-in-chief, cross and re-examination while s. 138 stipulates theBorder of examinations.It is trite that evidence within themeaning of the Evidence Act and so also within themeaning of s.244 of the Cr.P.C. is what is recorded in themanner stipulated u/s 138 in the case of oral evidence.[para 13-15] [67-A-B, F-G; 68-D]

1.4. Under s.246, Cr.P.C., the Magistrate is requiredto frame in writing charge against the accused “whensuch evidence has been taken” and there is ground forpresuming that the accused has committed an offencewhich such Magistrate is competent to try andDadequately punish. Evidence referred to in ss. 244, 245and 246 must, on plain reading of the said provisionsand the provisions of the Evidence Act, be admissibleonly if the same is produced and, in the case ofdocuments, proved in accordance with the procedureEestablished under the Evidence Act which includes therights of the parties against whom this evidence isproduced to cross-examine the witnesses concerned.[para 11 and 16] [65-C; 68-E-F]

1.5. Besides, because evidence under Part ofFChapter XIX of the Code has to be recorded in thepresence of the accused and if right of cross-examination was not available to him, he would be nomore than an idle spectator in the entire process. Thewhole object underlying recording of evidence u/s 244Gafter the accused has appeared is to ensure that not onlydoes the accused have the opportunity to hear theevidence adduced against him, but also to defend himselfby cross-examining the witnesses with view toshowing that the witness is either unreliable or that aHstatement made by him does not have any evidentiary

SUNIL MEHTA & ANR. v. STATE OF GUJARAT &ANR.

value or that it does not incriminate him. Section 245 ofthe Code empowers the Magistrate to discharge theaccused if, upon taking of all the evidence referred to ins. 244, he considers that no case against the accused hasbeen made out which may warrant his conviction.Whether or not case is made out against the accused,can be decided only when he is allowed to cross-examine the witnesses for otherwise he may not be in aposition to demonstrate that no case is made out againsthim and thereby claim discharge u/s 245 of the Code.[para 17] [68-G-H; 69-A-C]

1.7. Further, because the right of cross-examinationgranted to an accused u/ss 244 to 246 even beforeframing of the charges does not, in the least, cause anyprejudice to the complainant or result in any failure ofjustice, while denial of such right is likely and indeedbound to prejudice the accused in his defence. The factthat after the court has found case justifying framingof charges against the accused, he has right to cross-examine the prosecution witnesses u/s 246(4) does notnecessarily mean that such right cannot be concededto him before the charges are framed or that Parliamentintended to take away any such right at the pre-chargestage. [para 18] [69-E-H]

Ajoy Kumar Ghose v. State of Jharkhand and Anr.2009(4) SCR 515 = (2009) 14 SCC 115 – relied on

Sambhaji Nagu Koli v. State of Maharashtra 1979 Cri LJ390 (Bom); andHarinarayan G. Bajaj v. State of Maharashtra& Ors. 2010 (1) SCR 171 =(2010) 11 SCC 520 – referredto.

Case Law Reference:

2009 (4) SCR 515

relied onpara 5referred toPara 20

1979 Cri LJ 390 (Bom)

A2010 (1) SCR 171referred toPara 22

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 327 of 2013.

From the Judgment & Order dated 21.11.2011 of the HighBCourt of Gujarat at Ahmedabad in Special Criminal ApplicationNo. 1917 of 2011.

Ranjit Kumar, Uday B. Dube, R.R. Deshpande for theAppellants.

U.U. Lalit, Ajay Kumar, Chetan Pandaya, Krithika RaghvanHemantika Wahi for the Respondents.

The Judgment of the Court was delivered by

DT.S. THAKUR, J. 1. Leave granted.

2. The short question that falls for our determination in thisappeal is whether depositions of the complainant and hiswitnesses recorded under Chapter XV of the Code of CriminalProcedure, 1973 before cognizance is taken by the Magistratewould constitute evidence for the Magistrate to frame chargesagainst the accused under Part of Chapter XIX of the saidCode. The question arises in the following backdrop:

3. complaint alleging commission of offences punishableFunder Sections 406, 420 and 114 read with Section 34 of theIndian Penal Code, 1860 was filed by respondent No.2-Company before the Chief Judicial Magistrate, Gandhi Nagar,Gujarat. The Magistrate upon examination of the complaintdirected an enquiry in terms of Section 156(3) of the Cr.P.C.Gby the jurisdictional police station. The report received from thepolice suggested that the dispute between the parties was ofa civil nature in which criminal proceedings were out of place.The Chief Judicial Magistrate was not, however, satisfied withthe police enquiry and the conclusion, and hence conducted anenquiry in terms of Section 202 of the Cr.P.C. and issuedH

process against the appellants for offences punishable underSections 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 upbefore the trial Court under Section 244 of the Cr.P.C. wherethe accused appeared pursuant to the summons issued by theCourt. Instead of adducing evidence in support of theprosecution as mandated by Section 244, the complainant fileda pursis (memo) stating that he did not wish to lead anyadditional evidence and that the evidence submitted along withthe complaint may be considered as evidence for purposes offraming of the charge. The Magistrate took the pursis on recordand fixed the case for arguments on framing of charges. Theappellants' case is that written submissions filed by them beforethe Magistrate raised specific contention that no charge couldbe framed against them as the complainant had not led anyevidence in terms of Section 244 of the Code and that thedepositions recorded before the Magistrate under Section 202of the Cr.P.C. could not be considered as evidence for thepurposes of framing of charges. The Magistrate, however,brushed aside that contention and framed charges against theappellants under Sections 406 and 420 read with Section 34of the IPC.

5. Aggrieved by the order passed by the Magistrate, theappellants preferred Criminal Revision Application No.56 of2011 before the Sessions Judge at Gandhi Nagar who allowedthe same by his order dated 18th July, 2011 primarily on theground that non-compliance with the provisions of Section245(2) of the Cr.P.C. rendered the order passed by theMagistrate unsustainable. The Sessions Judge accordinglyremitted the matter back to the trial Court with direction toproceed in accordance with the provisions of Sections 244 to247 of the Code keeping in view the decision of this Court inAjoy Kumar Ghose v. State of Jharkhand and Anr. (2009) 14SCC 115.

6. Undeterred by the revisional order the respondent-company filed Special Criminal Application No.1917 of 2011before the High Court of Gujarat at Ahmedabad whichapplication has been allowed by the High Court in terms of theorder impugned before us. The High Court observed:

"In the facts of the case, it is not that the witnesses of thecomplainant have not been examined, therefore, theevidence has been recorded. Therefore, at that stage theopportunity was available with the accused as providedunder law to cross examine the witnesses, however, it isnot availed of by exercising the right of cross examination.It cannot be said that the procedure, as required, is notfollowed. Therefore, the observation made by the learnedSessions Judge relying on this judgment aremisconceived."

7. It is difficult to appreciate the logic underlying the aboveobservations. It appears that the High Court considered thedeposition of this complainant and his witnesses recordedEbefore the appearance of the accused under Section 202 ofthe Cr.P.C. to be 'evidence' for purposes of framing of chargesagainst the appellants. Not only that, the High Court by someinvolved process of reasoning held that the accused personshad an opportunity to cross-examine the witnesses when theFsaid depositions were recorded. The High Court was, in ouropinion, in error on both counts. We say so for reasons that arenot far to seek. Chapter XV of the Code of Criminal Procedure,1973 deals with complaints made to Magistrates. Section 200which appears in the said Chapter inter alia provides that theGMagistrate taking cognizance of an offence on complaint shallexamine upon oath the complainant and the witnesses present,if any, and the substance of such examination shall be reducedto writing and signed by the complainant and the witnesses, asalso the Magistrate. An exception to that general rule is,Hhowever, made in terms of the proviso to Section 200 in cases

where the complaint is made by public servant acting orpurporting to act in the discharge of his official duties, or wherea Court has made the complaint, or the Magistrate makes overthe case for enquiry or trial by another Magistrate under Section192 of the Cr.P.C.

8. Section 201 deals with the procedure which aMagistrate not competent to take cognizance of the case isrequired to follow. Section 202 empowers the Magistrate topostpone the issue of process against the accused either toinquire into the case himself or direct an investigation to bemade by police officer for the purpose of deciding whetheror not there is sufficient ground for proceeding. Sub-section (2)of Section 202 empowers the Magistrate to take evidence ofwitnesses on oath in an inquiry under sub-section (1) thereof.Section 203, which is the only other provision appearing inChapter XV, empowers the Magistrate to dismiss the complaintif he is of the opinion that no sufficient ground for proceedingwith the same is made out.

9. There is no gainsaying that Magistrate while takingcognizance of an offence under Section 200, whether suchcognizance is on the basis of the statement of the complainantand the witnesses present or on the basis of an inquiry orinvestigation in terms of Section 202, is not required to notifythe accused to show cause why cognizance should not betaken and process issued against him or to provide anopportunity to him to cross-examine the complainant or hiswitnesses at that stage.

10. In contra distinction, Chapter XIX of the Code regulatestrial of warrant cases by Magistrates. While Part of thatChapter deals with cases instituted on police report, Part Bdeals with cases instituted otherwise than on police report.Section 244 that appears in Part of Chapter XIX requiresthe Magistrate to "proceed to hear the prosecution" and "takeall such evidence as may be produced in support of the

Aprosecution" once the accused appears or is brought beforehim. Section 245 empowers the Magistrate to discharge theaccused upon taking all the evidence referred to in Section 244,if he considers that no case against the accused has beenmade out which if unrebutted would warrant his conviction. Sub-Bsection (2) of Section 245 empowers the Magistrate todischarge an accused even "at any previous stage" if forreasons to be recorded by such Magistrate the charges areconsidered to be "groundless". In cases where the accused isnot discharged, the Magistrate is required to follow theCprocedure under Section 246 of the Code. That provision mayat this stage be extracted:

"246. Procedure where accused is not discharged -

(1) If, when such evidence has been taken, or at anyDprevious stage of the case, the Magistrate is of opinionthat there is ground for presuming that the accused hascommitted an offence triable under this Chapter, whichsuch Magistrate is competent to try and which, in hisopinion, could be adequately punished by him, he shallEframe in writing charge against the accused.

(2) The charge shall then be read and explained to theaccused, and he shall be asked whether he pleads guiltyor has any defence to make.

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

(4) If the accused refuses to plead, or does not plead orclaims to be tried or if the accused is not convicted undersub-section (3), he shall be required to state, at theGcommencement of the next hearing of the case, or, if theMagistrate for reasons to be recorded in writing so thinksfit, forthwith, whether he wishes to cross-examine any, and,if so, which, of the witnesses for the prosecution whoseevidence has been taken.

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

(6) The evidence of any remaining witnesses for theprosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also bedischarged."

11. simple reading of the above would show that theMagistrate is required to frame in writing charge against theaccused "when such evidence has been taken" and there isground for presuming that the accused has committed anoffence triable under this Chapter which such Magistrate iscompetent to try and adequately punish.

12. Sections 244 to 246 leave no manner of doubt thatonce the accused appears or is brought before the Magistratethe prosecution has to be heard and all such evidence as isbrought in support of its case recorded. The power to dischargeis also under Section 245 exercisable only upon taking all ofthe evidence that is referred to in Section 244, so also thepower to frame charges in terms of Section 246 has to beexercised on the basis of the evidence recorded under Section244. The expression "when such evidence has been taken"appearing in Section 246 is significant and refers to theevidence that the prosecution is required to produce in termsof Section 244(1) of the Code. There is nothing either in theprovisions of Sections 244, 245 and 246 or any other provisionof the Code for that matter to even remotely suggest thatevidence which the Magistrate may have recorded at the stageof taking of cognizance and issuing of process against theaccused under Chapter XV tantamounts to evidence that canbe used by the Magistrate for purposes of framing of chargesagainst the accused persons under Section 246 thereof withoutthe same being produced under Section 244 of the Code. Thescheme of the two Chapters is totally different. While ChapterXV deals with the filing of complaints, examination of the

Acomplainant and the witnesses and taking of cognizance on thebasis thereof with or without investigation and inquiry, ChapterXIX Part deals with trial of warrant cases instituted otherwisethan on police report. The trial of an accused under ChapterXIX and the evidence relevant to the same has no nexusBproximate or otherwise with the evidence adduced at the initialstage where the Magistrate records depositions and examinesthe evidence for purposes of deciding whether case forproceeding further has been made out. All that may be said isthat evidence that was adduced before Magistrate at theCstage of taking cognizance and summoning of the accused mayoften be the same as is adduced before the Court once theaccused appears pursuant to the summons. There is, however,a qualitative difference between the approach that the Courtadopts and the evidence adduced at the stage of takingcognizance and summoning the accused and that recorded atDthe trial. The difference lies in the fact that while the former is aprocess that is conducted in the absence of the accused, thelatter is undertaken in his presence with an opportunity to himto cross-examine the witnesses produced by the prosecution.

E13. Mr. U.U. Lalit, learned senior counsel appearing for therespondent-complainant strenuously argued that Section 244does not envisage, leave alone provide for in specific terms,cross-examination of witnesses produced by the prosecutionby the accused. He submitted that since the provision of SectionF244 did not recognise any such right of an accused beforeframing of charges, it did not make any difference whether theCourt was evaluating evidence adduced at the stage ofcognizance and summoning of the accused or that adducedafter he had appeared before the Magistrate under SectionG244. He particularly drew our attention to sub-section (4) toSection 246 which requires the Magistrate to ask the accusedwhether he wishes to cross-examine any, and if so, which ofthe witnesses for the prosecution whose evidence has beentaken. 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 notbefore. There is, in our opinion, no merit in that contention whichneeds to be noticed only to be rejected. We say so for reasonsmore than one. In the first place, the expression "Magistrateshall proceed to hear the prosecution and take all suchevidence as may be produced in support of the prosecution"appearing in Section 244 refers to evidence within themeaning of Section 3 of the Indian Evidence Act, 1872. Section3 reads as under:

3. Interpretation clause -

In this Act the following words and expressions are usedin the following senses, unless contrary intention appearsfrom the context:-

xx xx xx

"Evidence".-"Evidence" means and includes-

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

such statements are called oral evidence;

(2) all documents including electronic records produced forthe inspection of the Court,

such documents are called documentary evidence."

14. We may also refer to Chapter X of the Evidence Actwhich deals with examination of witnesses. Section 137appearing in that Chapter defines the expressionsexamination-in-chief, cross and re-examination while Section138 stipulates the order of examinations and reads as under:

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

Are-examined.

The examination and cross-examination must relate torelevant facts, but the cross-examination need not beconfined to the facts to which the witness testified on hisexamination-in-chief.

Direction of re-examination.- The re-examination shall bedirected to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of theCourt, introduced in re-examination, the adverse party mayCfurther cross-examine upon that matter."

15. It is trite that evidence within the meaning of theEvidence Act and so also within the meaning of Section 244of the Cr.P.C. is what is recorded in the manner stipulatedDunder Section 138 in the case of oral evidence. Documentaryevidence would similarly be evidence only if the documents areproved in the manner recognised and provided for under theEvidence Act unless of course statutory provision makes thedocument admissible as evidence without any formal proofthereof.

16. Suffice it to say that evidence referred to in Sections244, 245 and 246 must, on plain reading of the saidprovisions and the provisions of the Evidence Act, beadmissible only if the same is produced and, in the case ofFdocuments, proved in accordance with the procedureestablished under the Evidence Act which includes the rightsof the parties against whom this evidence is produced to cross-examine the witnesses concerned.

17. Secondly, because evidence under Chapter XIX (B)has to be recorded in the presence of the accused and if rightof cross-examination was not available to him, he would be nomore than an idle spectator in the entire process. The wholeobject underlying recording of evidence under Section 244 afterthe accused has appeared is to ensure that not only does the

accused have the opportunity to hear the evidence adducedagainst him, but also to defend himself by cross-examining thewitnesses with view to showing that the witness is eitherunreliable or that statement made by him does not have anyevidentiary value or that it does not incriminate him. Section245 of the Code, as noticed earlier, empowers the Magistrateto discharge the accused if, upon taking of all the evidencereferred to in Section 244, he considers that no case againstthe accused has been made out which may warrant hisconviction. Whether or not 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 aposition to demonstrate that no case is made out against himand thereby claim discharge under Section 245 of the Code.It is elementary that the ultimate quest in any judicialdetermination is to arrive at the truth, which is not possibleunless the deposition of witnesses goes through the fire ofcross-examination. In criminal case, using statement of awitness at the trial, without affording to the accused anopportunity to cross-examine, is tantamount to condemning himunheard. Life and liberty of an individual recognised as themost valuable rights cannot be jeopardised leave alone takenaway without conceding to the accused the right to questionthose deposing against him from the witness box.

18. Thirdly, because the right of cross-examination grantedto an accused under Sections 244 to 246 even before framingof the charges does not, in the least, cause any prejudice tothe complainant or result in any failure of justice, while denialof such right is likely and indeed bound to prejudice theaccused in his defence. The fact that after the Court has founda case justifying framing of charges against the accused, theaccused has right to cross-examine the prosecutionwitnesses under Section 246(4) does not necessarily mean thatsuch right cannot be conceded to the accused before thecharges are framed or that the Parliament intended to takeaway any such right at the pre-charge stage.

A19. We are supported in the view taken by us by thedecision of this Court in Ajoy Kumar Ghose (supra). That wasa case where the trial Court had framed charges against theaccused without the prosecution having any evidencewhatsoever in terms of Section 244 of the Cr.P.C. This CourtBheld that the procedure adopted by the trial Court was notcorrect because the language of Section 246(1) Cr.P.C. itselfsufficiently indicated that charges have to be framed againstthe accused on the basis of some evidence offered by thecomplainant at the stage of Section 244(1). This Courtobserved:

"The language of the Section clearly suggests that it is onthe basis of the evidence offered by the complainant at thestage of Section 244(1) Cr.P.C., that the charge is to beframed, if the Magistrate is of the opinion that there is anyDground for presuming that the accused has committed anoffence 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 thesame, and if he is convinced, the Magistrate can frame theEcharge."20. This Court further clarified that the expression "or atany previous stage of the case" appearing in Section 246(1)did not imply that Magistrate can frame charges against anFaccused even before any evidence was led under Section 24.This Court approved the decision of the High Court of Bombayin Sambhaji Nagu Koli v. State of Maharashtra 1979 Cri LJ390 (Bom), where the High Court has explained the purport ofthe expression "at any previous stage of the case". The saidexpression, declared this Court, only meant that the MagistrateGcould frame charge against the accused even before all theevidence which the prosecution proposed to adduce underSection 244(1) was recorded and nothing more. This Courtobserved:

"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. TheBombay High Court came to the conclusion that thephraseology would, at the most, mean that the Magistratemay prefer to frame charge, even before all the evidenceis completed. The Bombay High Court, after consideringthe phraseology, came to the conclusion that the typicalclause did not permit the Magistrate to frame charge,unless there was some evidence on record. For this, theLearned Single Judge in that matter relied on the ruling inAbdul Nabi v. Gulam Murthuza Khan 1968 Cri LJ 303(AP)."

21. More importantly, this Court recognised the right ofcross-examination as salutary right to be exercised by theaccused when witnesses are offered by the prosecution at thestage of Section 244(1) of the Code and observed:

"51. The right of cross-examination is very salutary rightand the accused would have to be given an opportunity tocross-examine the witnesses, who have been offered atthe stage of Section 244(1) Cr.P.C. The accused canshow, by way of the cross-examination, that there is nojustifiable ground against him for facing the trial and for thatpurpose, the prosecution would have to offer someevidence. While interpreting this Section, the prejudicelikely to be caused to the accused in his losing anopportunity to show to the Court that he is not liable to facethe 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 positionstated in Ajoy Kumar Ghose (supra) and held that the right ofan accused to cross-examine witnesses produced by theprosecution before framing of charge against him was avaluable right. It was only through cross-examination that theaccused could show to the Court that there was no need for

Atrial against him and that the denial of the right of cross-examination under Section 244 would amount to denial of anopportunity to the accused to show to the Magistrate that theallegations made against him were groundless and that therewas no reason for framing charge against him. The followingBpassages are in this regard apposite:

"18. This Court has already held that right to cross-examine the witnesses who are examined before framingof the charge is very precious right because it is only bycross-examination that the accused can show to the CourtCthat there is no need of trial against him. It is to be seenthat before framing of the charge under Section 246, theMagistrate has to form an opinion about there beingground for presuming that the accused had committedoffence triable under the Chapter. If it is held that there isDno right of cross-examination under Section 244,. then theaccused would have no opportunity to show to theMagistrate that the allegations are groundless and thatthere is no scope for framing charge against him.

Exx xx xx

20. Therefore, the situation is clear that under Section 244,Cr. P.C. the accused has right to cross-examine thewitnesses and in the matter of Section 319, Cr.P.C. whena new accused is summoned, he would have similar rightFto cross-examine the witness examined during the inquiryafresh. Again, the witnesses would have to be re-heardand then there would be such right. Merely presentingsuch witnesses for cross-examination would be of noconsequence."G23. In the light of what we have said above, we have nohesitation in holding that the High Court fell in palpable error ininterfering with the order passed by the Revisional Court ofSessions Judge, Gandhi Nagar. The High Court wasHparticularly in error in holding that the appellant had an

opportunity to cross-examine the witnesses or that he had notavailed of the said opportunity when the witnesses wereexamined at the stage of proceedings under Chapter XV of theCode. The High Court, it is obvious, has failed to approachthe issue from the correct perspective while passing theimpugned order.

24. In the result we allow this appeal with costs assessedat Rs.50,000/-, set aside the order passed by the High Courtand restore that passed by the Sessions Judge. The costs shallbe deposited by respondent No.2-company in the SCBALawyers' Welfare Fund within two weeks of the pronouncementof this order.

Appeal allowed.