1---.r., i ,-. .:T J` cJ` IN THE HIGH COURT OF SIKKIM OF}DEFt SHEET `crlo in.c, a.a. Versus Stat.e of Si]dcim & ors. :i ..........,.... No, 02 of 2oo 6 Petitioner / A-p.pelrant :'-~ Respondent i ; Off ice Note as to Order with Signature action (if any) taken on Order ` 02.5.08 Present: Mr. Anpole FTasad and Mr. Jorgay Namka, Advocates for the Petitioner. Mr. J.B. Pradhan, Pubfic Prosecutor and Mr. Karma 'Thinlay, Addi. Public Prosecutor foI. the State. Mr. K.T. Bhutia and Mr. B.R. Pradhan, Advocates for Respondent Nos. 2 to 7. This is an application under Section 482 of the Code of Crininal Procedure, 1973 at the instance of the complainant who has made accusation inter alia for defamation. The case is a warrant case instituted otherwise than on a police report and the palt applicable is Part 8 of Chapter XIX of the Code of Criminal Procedure, 1973. Although the respondents asked for tine to ffle affidavit in opposition, such time was not grchted as it is a point of law and a point. of law €_-_ _ SerialNo.ofOrder I-F DateofOrder e, Order with Signature Office Note as toaction(ifany)takenonOrder alone without requiring any determination in point of fact by this Court. Unnecessary delay in criminal matters by calling for records etc., is not to be encouraged.lh7hattheCourt has to see in a case of this nature, is it something manifestly erroneous has been or is about to done; in the interest of justice the Hich Court can interfere and rectify the subordinate Court: for the purpose of saving time, cost and energy for all parties and also for other just purposes.Inthiscase,four witnesses were named by the complainant and they were examined under Section 200 of the Cr. P.C. Section 200 is set out below: -"ZOO. Examination of complainant.- A Magistrate taldng cognizance of an offence on complaint shall examine upon oath the complainant and the witriesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing,. the Magistrate need not examine the complainant and the witnesses- Serial -ebate Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order £, _-_-_ (a) if a pubHc servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided fiirther that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."Incasesofthisnature, i.e., where the case is otherwise than on police report, the next stage is Section 244 where evidence for the prosecution is taken. Then, roughly speaking, if after the evidence is taken, the Court finds that the charge framing is inpossible against any accused and also in cases of preliminary defect, like lack of sanction, a discharge order is passed under Section 245. The discharge is as opposed to acquittal on trial, since it is passed usually witliout trial and usually before the stage of commencement of trial. Trial starts with the framing of charges and not before. 'The crininal `case' starts, for this type of cases, with the lodging of the complaint. _--- _-- I- _ E Serial - Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order - ; If the accused is not discharged, then charges are framed and cross-examina.tion of witnesses etc. take place. 'ITris is the scheme and details are given under Section 246.Sections244,245and246are quoted 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 appfication 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 unrebutted, would warrant his conviction, the Magistrate shall discharge hin. (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 groundiess. Serial 5Da,e Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order 246. Procedure where accused is not J 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 bin, 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 clains to be tried or if the accused is not convicted under sub- section (3) he shall be required to state, at the commencement of the ne2ft 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.(5)Ifhesa.yshe does so wish, the witnesses named by bin shall be recalled and, after cross-examination and re- examination (if any), they shall be discharged. Order with Signature Off ice Note as to action (if any) taken on Order (6) The evidence of any remaining witnesses for the prosecution shall ne2ri be taken and after cross-examination and re- examination (if any), they shall also be discharged." What happened in the instant case is that at the invitation of the complainant, and on concession made by the accused through their leamed counsel, on or about 20.11.2007, the lower Court proceeded to frame charges, before examining any prosecution witnesses in chief under Section 244 in the presence of the accused, relying solely on the evidence obtained under Section 200. Then on several dates fixed, the Court was about to examine the complainant as the first prosecution witness in chief. AI this stage points dawned on the prosecution, and from what I have heard in Court, it appears that those points were already in mind of the accused. These points need a little clarification. The procedure in this type of case would be that after the accu.sed puts in appearance, all the prosecution witnesses are examined in chief one by one. No cross-exanination takes place, SerialNo.ofOrder DateofOrder Order with Signature Office Note as toaction(ifany)takenonOrder I until at least the named witnesses of the )I prosecution have given their deposition in chief, one and all. .'This is a notable exception from civil cases, and also from more serious criminal matters which are the subject matter of Part A of the said Chapter XIX.UnderSection246 (1) charges can be framed at two point of time: - (i) when evidence under section 244 by the prosecution has been taken, and (ii) at any previous stage of the `case', i.e., at any time between the filing of the complaint and may be even before the appearance of the accused, say, in the case of an absconding one.Thecomplainant became aware that charges had already been framed and the date for examination for the first prosecution witnesses fixed only thereafter. He was in doubt whether this was correct, since no evidence had been recorded for the prosecution in the presence of the accused under Section 244 and charge had already been framed on the basis of the complaint and what the Court had heard and recorded under Section 200. Serial Date Order with Signature Office Note a§ to No. of of action (if any) Order Order , taken on Order To prevent any procedural complaints of a fundamental nature being raised la.ter on, an application was made by the complainant, although not worded in very clear terms, dated 4.4.2008, seeldng basically for an opportunity to examine his witnesses in chief before the Court in the presence of the accused. 'The appHcation was rejected on 8.4.2008, which is one of the two orders sought to be revised here.Thegreatproblemofthecomplainant was that under Section 273 of Cr. P.C. no evidence, excepting as provided in the Code, taken in the absence of the accused can be used for finding of guilt or for conviction.Section273ofthe Code is set out below: -"273..Evidencetobetakeninpresence of accused.- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader."Theleaned Judge court below made an error in his orders ty proceeding on the basis that Section 273 raised no problem, since Section 200 specifically permitted the recording __ : , __I Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order of evidence in the absence of the accused. '_--- However, the eITor is, that under Section 200 stage, the trial has not yet commenced and, therefore, the Section 200 stage evidence would ordinarily be impemissible to rely upon, as the sole foundation of finding the accused guilty.Thecaseswhereevidenceintheabsence of the accused or his representative can be relied upon for the purposes of trial are given (we need not consider here whether exhaustively given or not) in Section 299 of the Cr. P.C., sub- section (1) of which is quoted below: -"299.Recordofevidencein absence of accused.- (1) If it is proved that an accused person has absconded, and that there is no inmediate prospect of alTesting him, .the Court competent to try [or commit for trial] such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of dela.y, expense or inconvenience which, under the circumstances of the case, would be uureasonable." Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order On this basis the order dated 08.4.2008 of ( the leaned Judge rejecting the application of the complainant is coITect; althouch that order is not a speaking one, the later order clarifies the ld. Judge's mind.Thereafter,bya petition dated 11.04.2008 the accused persons through counsel filed a petition mentioning that no evidence is recorded under Section 244 of the Cr. P.C. and therefore nothing needs to be cross-examined. Also they prayed for the reservation of their risht to cross- examine any witnesses produced by the complainant without prejudice. The complainant also filed a petition on 11.4.2008 whereby he again prayed for examination-in- chief of his witnesses as was originally fixed on several dat.es. These submissions and petitions were ultimately taken up and pronounced upon by the reasoned order of the learned Judicial Magistrate dated 22.04.2008 against which also this appHcation has been filed. After passing this order, the learned Judge has fixed 30.05.2008 as the date for cross- examination of the. complalnant's witnesses without fixing any date for examination-in-chief of such witnesses. Sei.ial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order The order proceeds on the said basis that since the Section 200 evidence is already been on record, the problem of Section 273 requiring all evidence at trial to be taken in the presence of the accused is not a problem at all. 'This, as I have said before, is an error. Evidence at trial starts after the trials has started, and excepting evidence taken on trial, the Magistrate cannot ordinarily convict.Thenerrfeproblem, which was perhaps argued more fully before me than the lower Court, is the problem of calling prosecution witnesses for examination in chief in cases of this nature, once the framing of charge is complete.The argument on behalf of the accused was that the charge can be framed when Section 244 examination has taken place, or before it. Clearly the Section 244 stage had come, because the accused had appeared before the Court. Since charges were framed without production of any evidence in presence of the accused under Section 244, that stage is over, and the Court cannot go back to the Section 244 stage once charges have been framed under. Section 246 (1). Serial _ Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order _-`- _-_ i- The argument was that one cannot travel beyond the stage of Section 244 to Section 246, and go back again to the Section 244 stage, just as it pleads. So in this case, only cross- exanination needs to be done of the cited witnesses under Section 244,of the Code, if even that is necessary, because Section 200 evidence is no evidence for the purposes of trial.Inmyopinion,thisisnot a sound argument. 'The words "when such evidence has been taken" occurring in isub-Section (1) of Section 246 does not mean "when such evidence has been taken and has been taken in full and not at any stage before or midway while the taking of such evidence still might continue". The submission of the accused would make the words of Section 246 more stringent, and also set a trap for the unwary coniplainant, like here. May be the complainant has made a mistake, and may be they should have?, as ordinarily is to be done, called all their cited witriesses and completed their examinations-in-chief before _- they called upon the Cquri for framing 'o • - - _ -=-- charges. But it is not such a mistake that it,will •- finish th_Q _trial_an_d-wi]1=leaveTh-e-~trial with no evidence which can be relied upon for the ` ~p±±± ose of conviction. __- E= Serial Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order If, sa.y, the charges are framed by a Magistrate after hearing 3 of 4 prosecution witnesses in chief under Section 244 and then the rest are heard thereafter, it would not be a defect rendering the trial invalid. Although such might be the case if the Magistrate proceeded to frame a second set of charges or amend or alter those after hearing the evidence of the rest of the witnesses or some of them.Againthetrialmightbeabsolutelyvitiated if even before hearing the' examinations-in-chief of all the cited witnesses the Magistrate starts the process of cross-examination of those witnesses one by one.Thisisnotsuch a case. 'The Magistrate has not finally tied up his hands with the charge framing; he has done so at the instance of counsel of both the sides and on the basis of cwidence which is not any evidence at trial. That evidence is only the preliminary inquisitional evidence for deciding to proceed with the trial and calling for appearance of the accused.As such the appHcation succeeds. 'Ihis order and the observations, however worded, are, as far as possible, without prejudice to the Serial Date Order with Signature Office Note as to No. of of action (if any) Order Orde,. , taken on Order rights and contentions of the parties at tl`ial, i.%lkTJ-ir(=>``eydy®Ls>nd' especially the accused. The orders sought to be revised are set aside. 'The Judicial Magistrate is permitted to hear the parties and their counsel as soon as time will i)ermit and fix a date for examination of the witnesses of the prosecution in chief and thereafter proceed with the case in accordance with law.Theordersdated 08.4.2008 and 22.4.2008 are to be substituted by the order as above.(A.N.Ray, CJ)