IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Misc. Petition No. M-25680 of 2009 (O&M) Date of Decision: 14.9.2009 Prem Kumar and another. ....... Petitioners. Versus State of Punjab and another. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Arun Abrol, Advocate for the petitioners. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The only question that has been raised in this petition filed under Section 482 of the Code of Criminal Procedure,1973 (for short, `the Cr.P.C.') for quashing of order dated 11.7.2009 passed by the Judicial Magistrate Ist Class, Gurdaspur (hereinafter described as `the trial Court'), is that the trial Court has illegally proceeded to frame charge against the petitioners without affording an opportunity to cross-examine the witnesses of the complainant-respondent no.2. The petitioners are facing proceedings pursuant to a complaint having been initiated by respondent no.2 under Section 376 read with Crl.Misc.Petition No.M-25680 of 2009 -2- .... Section 511 of the Indian Penal Code,1860. Learned counsel for the petitioners has contended that after recording of the statements of the complainant and other witnesses, the petitioners ought to have been given the right to cross-examine them before the charge could be framed. Reliance has been placed on R.K.Joshi and another Versus State of Haryana and another, 2007(2) R.C.R. (Criminal) 47. After hearing the learned counsel for the petitioners, I am of the considered opinion that the contention raised by him is totally without any merit. Sections 244 to 246 of the Cr.P.C., which are relevant for the purposes of disposal of this petition, are reproduced below:- “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. 245. When accused shall be discharged.- (1) If, upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would Crl.Misc.Petition No.M-25680 of 2009 -3- .... 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. 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. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (4) he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. Crl.Misc.Petition No.M-25680 of 2009 -4- .... (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged.” As seen above, sub-section (1) of Section 245 of the Cr.P.C. provides that if after taking of the evidence referred to under Section 244, the Magistrate considers that no case is made out to warrant conviction of the accused, even if the evidence which has come on record goes unrebutted, it is open to him to discharge the accused while recording his reasons. Similarly, the Magistrate has power under sub-section (2) of Section 245 of the Cr.P.C. to discharge the accused for the reasons to be recorded in writing at any previous stage of the case also if he considers the charge to be groundless. In the instant case, the Magistrate has recorded the statements of the complainant and other witnesses and has proceeded to undertake the exercise for framing of charge. At the stage of enquiry when the matter is still at the evaluation of the material under Section 244 of the Cr.P.C. and the witnesses are available, there is also an opportunity to cross-examine them. But, as observed in R.K.Joshi's case (supra), it does not mean the actual right to cross-examine for the simple reason that the accused has always a right to cross-examine such witness during the enquiry and no prejudice is likely to be caused to him if his right to cross-examine a Crl.Misc.Petition No.M-25680 of 2009 -5- .... witness is not given at a particular stage. This view of mine finds support from the observations of Kerala High Court in Gopalakrishnan and another Versus State of Kerala and another, 2001 (4) R.C.R. (Crl.) 688 (Kerala), which are extracted below:- “..... For the reasons stated above, I am of the view that the accused has no absolute right to cross-examine the prosecution witnesses under Section 244 of the Cr.P.C. No doubt Section 244 does not prohibit cross-examination before framing charge. Though the accused has no independent right of cross- examination under Section 244 of the Cr.P.C., the Magistrate may in his discretion permit cross-examination at the inquiry stage. But it cannot be said that the refusal of a Magistrate to allow an accused to cross-examine the witnesses examined under Section 244 of the Cr.P.C. is illegal and irregular.......” In R.K.Joshi's case (supra), this Court has held as follows:- “Having considered all the aspects, I have no hesitation in holding that the accused has no absolute right to cross- examine the prosecution witnesses under Section 244 of the Code. Section 244 of the Code does not prohibit cross- examination and the Magistrate may in his discretion permit cross-examination at this inquiry stage. It cannot, however, be said that the refusal to cross-examine the witnesses under Section 244 of the Code is illegal or irregular.” For the reasons mentioned above, I do not find any infirmity in Crl.Misc.Petition No.M-25680 of 2009 -6- .... the impugned order. Consequently, the instant revision petition is without any merit and is dismissed. September 14,2009 ( Mahesh Grover ) “SCM” Judge