1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4462 OF 2009 Ms. Renuka T. Takumal ...Applicant. v. The State of Maharashtra & Anr. ...Respondent. Mr.P.G.Vora i/by Ms.Rekha Trivedi, advs., for the Applicant. Mr.Y.S.SHinde, APP for the respondent no.1. CORAM : J.H.Bhatia, J. DATE : 20th July, 2010 P.C.: 1 Heard the learned counsel for the applicant. Applicant has filed a complaint against the respondent no.2 under Section 493 of the I.P.C. and the charge was framed. The offence is punishable with imprisonment which may extend to 10 years with fine and, therefore, it is warrant trial case. The learned counsel for the applicant makes a statement that the matter before the trial Court is at the stage of recording of evidence before framing of the charge. It appears that the learned Magistrate had directed the complainant to produce all the documents on which she wants to rely during the trial on 1st July, 2009. The applicant submitted before the trial Court that it being the private warrant trial case and the examination of the complainant before the charge is incomplete at this stage she does not want to rely 2 upon any documents except the oral evidence. In the latter part, she states that during her examination-in-chief, she will produce all the necessary and relevant documents to substantiate her case. To this, the accused objected stating that only stage for production of documents by the complainant is the stage of evidence before the charge. After hearing the parties, the learned Magistrate directed the complainant to produce the documents on which she wants to rely in the examination- in-chief before the charge and also to supply copies to the accused. That order is challenged in the present application under Section 482 of the Cr.P.C. 2 The learned counsel relied upon the judgment of this Court in Bhalchandra G. Naik v. Suresh Melvani 1999 Cri.L.J.1908 wherein the summons was issued under Section 204 of the Cr.P.C. on the private complaint and copy of the complaint was supplied. Accused resisted that all the documents on which the complainant wanted to rely upon should also be supplied alongwith the process. That contention was rejected not only by the trial Court and by the revisional Court but also by the High Court stating that Section 204 of the Cr.P.C. only requires that the copy of the complaint should be supplied alongwith the summons and there is no requirement of the 3 law that the copies of all the documents on which the complainant wants to rely should also be supplied to the accused alongwith the summons. In my considered opinion, this authority is not applicable to the facts of the present case. 3 Chapter 19 of the Code of Criminal Procedure deals with the procedure for the trial of warrant cases by the Magistrates. Part A of that chapter deals with the case instituted on the police report and Part B deals with the case otherwise than on police report. Section 238 which is in part A provides that in any warrant case instituted on the police report, accused appears or is brought before a Magistrate at the commencement of the trial, Magistrate shall satisfy himself that he has complied with the provisions of section 207 which requires that all the police papers on which the prosecution wanted to rely should be supplied to the accused. However, there is no such provision in Part B. Section 244 to 215 provides for the procedure to be followed in the cases instituted otherwise than on the police report. It means that the procedure to be followed for the warrant cases filed by the private complaint. Section 244 requires that when the accused appears or brought before the Magistrate, Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support 4 of the prosecution. Section 245 provides that 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 him. Section 246 provides that where the accused is not discharged, Magistrate shall frame the charge and if the accused pleads not guilty or refuses to claim or claims to be tried, the accused shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for the 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 already taken. If he gives names of such witnesses shall be recalled for and shall be offered for cross-examination. Sub- section (6) provides that 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. On reading the procedure laid down in Section 244, 245 and 246 of the Cr.P.C., it becomes clear that the complainant in the warrant trial case may lead the evidence at two stages, first stage is before framing of the charge. Before examination-in-chief of the witnesses, who are to be examined 5 before framing of the charge has to be completed before that stage and they can be recalled for cross-examination if the accused so desires after framing of the charge. Those witnesses for the prosecution, who were not examined before framing of the charge may be called by the prosecution after framing of the charge and their examination-in-chief and cross-examination will be recorded after framing of the charge. From this it is clear that if the prosecution wants to examine any particular witness before framing of the charge, prosecution will have no opportunity to call the same witness for a fresh examination-in-chief after framing of the charge. In the present case the learned counsel for the applicant/complainant makes a statement that the complainant has to be examined herself before framing of the charge to make out case for framing of the charge. If it is so, she will not be allowed to enter into witness box for fresh examination-in-chief after framing of the charge. Her examination-in- chief will have to be completed before framing of the charge whether to cross-examine her or not cross-examine her will be at the option of the accused. If she wants to rely upon certain documents, which according to her own written statement before the trial Court, she will produce at the stage of examination-in-chief. Naturally, she would be 6 required to produce those documents before framing of the charge and not after. If she wants to rely upon certain documents in support of her case, naturally copies of the same will have to be supplied to the accused so that he may effectively cross-examine the complainant. Without supply of documents, the accused will not get the opportunity to effectively cross-examine the witness and to defend himself properly. In view of this, I find no illegality or irregularity in the impugned order. 4 For the aforesaid reasons, application stands dismissed. (J.H.BHATIA, J.) 7