Dilipkumar S/O Rajnarayan Saxena vs Vinodkumar S/O Rajnarayan Saxena
2017 Latest Caselaw 4096 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

         CRIMINAL APPLICATION (APL) NO.671 OF 2015

Dilipkumar s/o Rajnarayan Saxena,
Aged about 61 years, Occupation Private
R/o 172, Opp. Anand Vidyalaya,
Bhagwan Nagar, Nagpur 440 027.                       ..... Applicant.

                                 ::   VERSUS   ::

Vinodkumar s/o Rajnarayan Saxena,
Aged about 66 years, Occupation Retired,
R/o Care Sawitribai Tiwari,
37, Nr. Sai Mandir (south Domne Layout,
Ayodhya Nagar, Nagpur 440 024.                  ..... Non-applicant.

================================================================
           Shri S.V. Sirpurkar, Counsel for the applicant.
           Shri A.T. Purohit, Counsel for the non-applicant.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 6, 2017.

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel for the parties.

.....2/-

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2. This proceeding under Section 482 of the Code of

Criminal Procedure is before this Court to challenge order

passed by learned Judicial Magistrate First Class, Court No.6,

Nagpur dated 10.3.2013 in Regular Criminal Case No.2427 of

2009 by which learned Magistrate framed charge for the

offences punishable under Sections 420, 467, 468, and 471 of

the Indian Penal Code together with judgment and order

passed by learned Sessions Judge-8, Nagpur in Criminal

Revision No.92 of 2014 by which learned Revisonal Court

dismissed the revision filed on behalf of the present applicant.

3. I have heard learned counsel Shri S.V. Sirpurkar

for the applicant in extenso so also learned counsel Shri A.T.

Purohit for the non-applicant.

4. As per submissions of learned counsel Shri S.V.

Sirpurkar for the applicant, there is a gross violation of

procedure as it mandates under Section 244 of the Code of

.....3/-

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Criminal Procedure and, therefore, order of framing of charge

is required to be set aside. It is his another submission that

impugned order of framing of charge does not depict

application of mind on the part of learned Magistrate.

5. A private complaint was filed by the present non-

applicant. By the said complaint, it is alleged that the present

applicant has committed the offences punishable under

Sections 420, 467, 468, and 471 of the Indian Penal Code.

6. Since the case is a warrant case instituted than a

police report, the case is governed by the procedure as

envisaged under Sections 242 to 247 of the Code of Criminal

Procedure.

7. As per Section 244 of the Code of Criminal

Procedure, if a warrant case is instituted otherwise than a

police report and accused appears or is brought before

learned Magistrate, learned Magistrate to proceed with the

.....4/-

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complaint to hear the case of prosecution and to take all such

evidence as may be produced in support of the prosecution.

8. In the present case, at this stage before Court

below, the presence of the applicant accused is not in dispute.

9. According to learned counsel for the applicant,

after examination-in-chief of the complainant and other 3

witnesses, they were cross-examined by the present

applicant/accused. Thereafter, learned Magistrate was of the

view that there is a material to frame charge, therefore,

charge was framed.

10. Learned counsel Shri S.V. Sirpurkar for the

applicant very seriously attacks this particular procedure

adopted by learned Magistrate by making a submission that at

that particular point of time learned Magistrate ought not to

have allowed the accused to cross-examine the complainant

and his witnesses. I am afraid that such submission has any

.....5/-

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merit.

11. It is always a choice of the accused person till the

stage of Section 244 passed away either to participate in the

proceeding by cross-examining prosecution witnesses or not

to cross-examine the prosecution witnesses. Merely because

at that stage accused is not cross-examining the complainant

or his witnesses, that does not extinguish valuable right of the

cross-examination on the part of the accused at the

appropriate stage.

12. At that stage it is the duty of the complainant to

adduce such evidence which prima facie shows that there is a

material against the accused for framing of charge. At this

stage, if the complainant or witnesses are cross-examined,

there is an every possibility to disclosing the defence of the

accused persons. Therefore, the accused may not

cross-examine the prosecution witnesses.

.....6/-

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13. In the present case, it appears that at the stage of

Section 244 of the Code of Criminal Procedure when the

complainant and his witnesses entered into the witness box,

applicant/accused exercised his right of cross-examine of

those witnesses. It was not incumbent on the part of

applicant/accused at that time to cross examine the

complainant or his witnesses. However, since he exercised his

choice to cross-examine, at this stage learned counsel for the

applicant surely cannot reck up that issue by pointing finger

at learned Magistrate that he has committed in any

jurisdictional or procedural lapse.

14. The impugned order of framing of charge shows

that learned Magistrate after considering the evidence that is

brought on record noticed that there is a prima facie case for

framing of charge. At this stage, it is not expected from

learned Magistrate to write a complete judgment to give all

.....7/-

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reasons in detail. What is important at this stage framing of

charge is consideration by learned Magistrate. The impugned

order shows that learned Magistrate has applied his mind

after considering the evidence. Further, learned Revisional

Court in detail has assessed the evidence that was brought on

record before framing of charge and noticed that there is a

sufficient material to frame charge.

15. In view of the aforesaid, in my view, the present

application is devoid of any merit and needs to be rejected

and accordingly it is rejected. Rule is discharged.

JUDGE

!! BRW !!

...../-