Sunday, February 16, 2014

Trail of Warrant Cases by Magistrate : Sections 238 to 250 CrPC

What is trail?

Trail has not been defined in the Code of Criminal Procedure (in short CrPC). Framing of charge is the nascent stage of the trail. Virtually, trail begins from the stage of framing of charge.

If any crime takes place then its first stage would be investigation, in which a police officer either by himself or under order of a Magistrate investigates into a case, and he sends up the case to a Magistrate.

Then begins second stage, which is an inquiry into the case by Magistrate. If no prima facie case is made out, the Magistrate dismisses the complaint or discharges the accused. If he is of a contrary opinion, he frames a charge. At the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trail, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. All proceedings before Magistrate, before framing the charge can be termed as inquiry. 

Now the third and final stage is reached when the charge is framed and the trails begins, and it is the third stage i.e. trail where the Magistrate or Sessions Judge decides the accused either convict or acquit him. Trail includes all the steps, which a Criminal Court adopts subsequent to the framing of charge and until the pronouncement of judgment. If in a proceeding the Court has no power to convict or acquit, it is no trail.

For trail of warrant cases by Magistrate two procedures are prescribed: - one is adopted by Magistrate in cases instituted on police report (Sections 238 to 243 and 248, CrPC) and other is for cases instituted otherwise than on police report (Sections 244 to 250, CrPC).
The essential difference of procedure in the trail of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 CrPC on one side and Sections 244 and 245 CrPC, on the other. 

Under Section 238 CrPC, when in a warrant case, instituted on a police report, the accused appear or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-section (3) of Section 161 CrPC of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 CrPC and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 CrPC that the Magistrate has to consider the police report and the documents sent with it under Section 173 CrPC and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reason for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trail, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. After framing a charge under Section 240 CrPC, the Magistrate has to proceed under Section 242 CrPC and under sub-section (3) of that Section the Magistrate is bound to proceed to take all such evidence as may be produced in support of the prosecution. This provision and the provisions in sub-section (1) and (2) of the Section 243, CrPC are mandatory. It is only after due compliance of the provisions in Sections 242 and 243 that an order of conviction or acquittal can be passed under Section 248, CrPC. Thus, in such trail prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.

However, in a warrant trail instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2), CrPC on the application by prosecution. All these evidence is evidence before charge. It is after all this, evidence is taken, and then the Magistrate has to consider under Section 245(1) CrPC, whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) CrPC. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trail on police report, where there is only one opportunity. Thereafter, under Section 247 CrPC, the accused shall be called upon to enter upon his defence and to produce his evidence. In the warrant trail instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge.

Case laws

In Harinarayan G. Bajaj vs. State of Maharashtra, (2010) 11 SCC 520, the Supreme Court held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trail against him and that the denial of the right of cross-examination under Section 244, CrPC would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him.

In State of Kerala vs. Sebastain, 1983 Cr LJ 416, the Kerala High Court held that once the charge has been framed, the Magistrate is bound to proceed further with the trail and then he cannot discharge the accused. Framing of charge against the accused is an order affecting the interest of the accused and the Magistrate cannot review his own order. Subordinate Courts have no inherent powers and cannot reverse their own orders. After framing the charge the Magistrate cannot dismiss the complaint nor can discharge the accused.

In Sunil Mehta vs. State of Gujarat, (2013) 9 SCC 209, the issue before the Supreme Court was whether depositions of the complainant and his witnesses recorded under chapter 15 of the Code of Criminal Procedure before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under part B of chapter 19 of the said Code. The Supreme Court has observed – chapter 15 deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, whereas chapter 19 parts B deals with trail of warrant cases instituted otherwise than on a police report. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under chapter 15 tantamount to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section246 thereof without the same being produced under Section 244 of the Code. Under Section 244, CrPC the accused has a right to cross-examine the witnesses and in the matter of Section 319, CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. The power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244, CrPC.

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