Rajeev And 7 Others vs The State Of U.P. And Another
2022 Latest Caselaw 19844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 16438 of 2014
 

 
Petitioner :- Rajeev And 7 Others
 
Respondent :- The State Of U.P. And Another
 
Counsel for Petitioner :- Dalvir Singh
 
Counsel for Respondent :- Govt.Advocate,Sunil Kumar Yadav
 
and
 
Case :- APPLICATION U/S 482 No. - 6192 of 2018
 

 
Applicant :- Harish Chandra And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rohit Nandan Pandey
 
Counsel for Opposite Party :- G.A.,Sunil Kumar Yadav
 

 
Hon'ble Saurabh Shyam Shamshery,J.

The applicants were summoned by an order dated 27.05.2011 passed by Judicial Magistrate, Etah under Section 204 Cr.P.C. for an offence under Sections 420, 467, 468, 471, 218 I.P.C. passed in Case No. 19 of 2005.

The aforesaid order was challenged before this Court by way of filing an application u/s 482 Cr.P.C. No. 6521 of 2012 wherein summoning order was upheld, however, a liberty was granted to file discharge application under Section 245(2) Cr.P.C. In these circumstances, applicants have filed an application under Section 245 Cr.P.C., however, same was rejected by impugned order dated 21.02.2014 on ground that applicants have submitted application without even appearing before Court concerned and revision thereof was also dismissed.

Heard learned counsel for parties and perused record.

The scheme for consideration of 'cases instituted otherwise than on police report' commenced from Section 244 Cr.P.C. which provides' evidence for prosecution, thereafter, Section 245 Cr.P.C. provides 'when accused shall be discharged, Section 246 Cr.P.C. provides 'procedure where accused is not discharged' and Section 247 provides 'evidence for defence'.

Since evidence as well as cross examination still has not taken place under Section 244 Cr.P.C. till date, therefore, at this stage, application under Section 245 (1) or 245 (2) Cr.P.C. cannot be considered, therefore, there is no illegality in impugned order. During recording of evidence under Section 244 Cr.P.C., it is up to Magistrate to pass an order under Section 245(2) Cr.P.C. if circumstances so warrant and application under Section 245(1) Cr.P.C. can be filed only after evidence of witnesses and cross examination thereof is concluded under Section 244 Cr.P.C.

In this regard, few paragraphs of Sunil Mehta and another vs. State of Gujarat and another, (2013) 9 SCC 209 are relevant and are mentioned hereinafter -:

"14.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 within the meaning of Section 3 of the 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:

***

'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."

15.We may also refer to Chapter X of the Evidence Act which deals with examination of the 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.

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."

16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 CrPC 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.

17.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.

18.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 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.

19.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 be conceded to the accused before the charges are framed or that Parliament intended to take away any such right at the pre-charge stage."

In these circumstances, prayers made in application are rejected.

However, applicants shall appear before Court concerned within a period of three weeks from today and thereafter, evidence be led by prosecution under Section 244 Cr.P.C. and after cross examination, if any, at appropriate stage application under Section 245(1) and 245(2) be filed, as the case may be, which shall be considered in accordance with law.

At this stage, learned counsel for applicants submits that after appearance, their bail applications be considered taking note of judgment of Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation, (202) 10 SCC 773.

In view of above prayer, this application is disposed of with a direction that if applicants appear before Court concerned and apply for bail, the same shall be considered expeditiously taking note of judgment of Satender Kumar Antil (supra).

Order Date :- 5.12.2022

Nirmal Sinha