Sunday, 5. June 2011
In situation when any offence takes place one is reminded of FIR being registered but what in situations when the police fails to take any action in such situations one is reminded of Courts but how the court takes action this is when the provisions of Code of Criminal procedure comes into play dealing with complaint cases. In a complaint case for summoning of the accused only prima facie opinion has to be formed and the accused is not before the court to put forth his version but what in situations when the allegations are false, do one has to face the agony of long trial which shall take place? It is where the provisions of discharge of accused become relevant. The accused can be discharged at any stage of the hearing by the Magistrate if he forms an opinion that the prosecution is groundless and without any basis.
Section 190 of Cr.P.C. provides that magistrate can take cognizance on a police report or otherwise than a police report. When a complaint is filed, under section 200 Magistrate examines the complainant or such other witnesses who are present. Such examination of witnesses is not necessary where the complaint has been made by a public servant in discharge of his official duties or where the Court has made the complaint or when the Magistrate makes over the complaint for inquiry or trial to other Magistrate under Section 192 Cr.P.C. Under Section 201 if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to proper Court or direct the complainant to proper Court. Section 202 Cr.P.C. deals with postponement of issue of process.
Under Section 202 sub section (1) of the Cr.P.C.,he may direct investigation to be made by the police officer or such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. However the Magistrate cannot give such a direction for an investigation when the offence complained of is exclusively triable by a Court of Sessions and also no such direction can be given when the complaint has been made by the Court. Under Section 203 the Magistrate after recording statement on oath of the complainant and witnesses or the result of inquiry or investigation ordered under Section 202, can dismiss the complaint if he finds there is no sufficient ground for proceeding. On the other hand if he comes to the conclusion that there is sufficient ground for proceeding he can issue the process under Section 204 of the Cr.P.C. He can issue summons for the attendance of the accused or in a warrants case, he may issue warrants, or if he thinks fit, summons for securing the attendance of the accused.
The accused thereafter appears before the Magistrate in a warrants case under Section 244 Cr.P.C. On the appearance of the accused the Magistrate hears the prosecution and takes all such evidence as may be produced in support of the prosecution. He may at this stage also issue summons to any of the witness of the prosecution if an application is filed in this regard. The Magistrate thereafter takes up the task as to whether the accused has to be charged taking into account all the evidence which has been adduced under Section 244 Cr.P.C. on the considerations that if this evidence goes unrebutted whether the accused would be convicted, if not so the accused is liable to be discharged. The Magistrate has the power to discharge the accused at previous stage i.e. before the evidence is recorded under Section 244(1) Cr.P.C. in view of the decisions in Cricket Association of Bengal & Ors. V. State of West Bengal & Ors.1971 (3)SCC 239. this proposition was also observed in Luis DE Piedade Lobo V. Mahadeva 1984 Criminal Law Journal 513, Manmohan Malhotra V. P.M.Abdul Salam & Anr. 1984 Criminal Law Journal 1555, Mohamad Sheriff V. Abdul Karim AIR 1928 Madras 129 and Gopal Chauhan V. Smt. Satya 1979 criminal Law Journal 446. Thus the Magistrate can discharge the accused even before any evidence is recorded under Section 244(1) of Cr.P.C.
The Supreme Court of India considered the ambit of Section 245(2) of Cr.P.C. in Ajay Kumar Ghose V. State of Jharkhand & Anr. 2009(3) RCR Criminal 345, under Section 245 (1) and Section 245(2) there is a difference. The Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and has to consider whether if this evidence goes unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245 (1) Cr.P.C. The situation under Section 245(2) is different, the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging the accused Magistrate has to come to the finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought or the evidence is led under Section 244(1) Cr.P.C. the words appearing in Section 245(2) Cr.P.C. clearly bring out this position. The Supreme Court then considered the Meaning of the term “previous stage”.
“Previous stage” would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. in T.K.Appu Nair V. Earnest AIR 1967 Madras 262 and In re. M.Srihari Rao AIR 1964 Andhra Pradesh 226, P.Ugender Rao & Ors. V. J.Sampoorna & Ors.1990 Criminal Law Journal 762, where it has been held that previous stage is a stage after recording some evidence. It is neither a stage before recording any evidence at all or the stage after recording entire evidence, but is in between. The interpretation thus placed on the “at any previous stage of the case” , occurring in Section 246 Cr.P.C. also appears to be more in consonance with the order of the Sections numbered in the Code and also with the heading given to Section 246 Cr.P.C., viz., “procedure where the accused is not discharged.” The very heading of the Section even indicates that it would come into play only after the matter is examined in the light of Section 245 Cr.P.C. and the accused is not discharged there under. Thereafter, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under Section 245 Cr.P.C. and it is only when he finds it otherwise, he could have resort to Section 246 Cr.P.C.
In Ramesh kumar Jain V. Sanmati Vimal Jain Public School, Jagraon 2005(3) RCR criminal 981 P&H, it has been observed that recoding of complete evidence is not necessary under Section 245 (2) Cr.P.C. This power can be exercised even at the stage where the stage where the evidence of the complainant has been recorded or taken in the form of evidence. Thus, the petitioners may avail this remedy if there is dearth of material in the testimony of the complainant or the averments of the petition does not warrant summoning. This, power can also be exercised if the charges are found to be groundless, thus without recording any evidence. It has been observed herein that previous stage thus is a stage after recording some evidence. It is neither a stage before recording of any evidence nor a stage after recording of the entire evidence but is in between.
Section 246 provides the procedure when the accused is not discharged and even here the phrase “at any previous stage of the case” has been used which was the subject matter of interpretation in Solomon V. Luke, (1963) An WR 173 : (1963) Crl LJ 347, referring to the phrase ‘at any previous stage of the case’ occurring in Section 253(2) and 254 of the old code (corresponding to Sections 245 (2) and 246 of the present Code), Justice Sharfuddin Ahmed held:
“Now , Section 253 (1) provides for taking all the evidence referred to in Section 252 and the order of discharge has to follow in the event 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 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 of few witnesses or even on the examination of the complainant. The restriction imposed in the sub-section (1) has been relaxed as the Magistrate has been empowered to act under sub-section (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 witness or hearing the complainant to say the least before recording an order of discharge. The words previous stage also appear in Section 254 Cr.P.C. 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) Cr.P.C. seems to be consistent with the use of the words and vesting of the power in the Magistrate to frame charge under Section 254, Cr.P.C.
Therefore it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused would be discharged under Section 245 Cr.P.C. and it is only when he finds it otherwise he can have resort to Section 246, Cr.P.C.
After the charge is framed under Section 246 Cr.P.C., the Magistrate proceeds to record evidence in order to decide the guilt of the accused and it is thereafter that the accused may be convicted or acquitted depending on the fact whether the prosecution has been able to discharge the burden of proof which was upon it. Therefore it is not that once the complaint has been filed the accused even if innocent has to wait for culmination of proceedings and he can file an application for discharge of accused. The provisions for discharge have thus been incorporated to protect the rights of the accused.