Judgment :-

T.S. Thakur, J.

1. Leave granted.

2. The short question that falls for our determination in this appeal is whether depositions of the complainant and his witnesses recorded under Chapter XV of the Code of Criminal Procedure, 1973 before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter XIX of the said Code. The question arises in the following backdrop:

3. A complaint alleging commission of offences punishable under Sections 406, 420 and 114 read with Section 34 of the Indian Penal Code, 1860 was filed by respondent No.2-Company before the Chief Judicial Magistrate, Gandhi Nagar, Gujarat. The Magistrate upon examination of the complaint directed an enquiry in terms of Section 156(3) of the Cr.P.C. by the jurisdictional police station. The report received from the police suggested that the dispute between the parties was of a civil nature in which criminal proceedings were out of place. The Chief Judicial Magistrate was not, however, satisfied with the police enquiry and the conclusion, and hence conducted an enquiry in terms of Section 202 of the Cr.P.C. and issued process against the appellants for offences punishable under Sections 406 read with 114 IPC.

4. Aggrieved, the appellants unsuccessfully questioned the summoning order before the High Court in Criminal Misc. Application No.10173 of 2010. Inevitably the matter came up before the trial Court under Section 244 of the Cr.P.C. where the accused appeared pursuant to the summons issued by the Court. Instead of adducing evidence in support of the prosecution as mandated by Section 244, the complainant filed a pursis (memo) stating that he did not wish to lead any additional evidence and that the evidence submitted along with the complaint may be considered as evidence for purposes of framing of the charge. The Magistrate took the pursis on record and fixed the case for arguments on framing of charges. The appellants' case is that written submissions filed by them before the Magistrate raised a specific contention that no charge could be framed against them as the complainant had not led any evidence in terms of Section 244 of the Code and that the depositions recorded before the Magistrate under Section 202 of the Cr.P.C. could not be considered as evidence for the purposes of framing of charges. The Magistrate, however, brushed aside that contention and framed charges against the appellants under Sections 406 and 420 read with Section 34 of the IPC.

5. Aggrieved by the order passed by the Magistrate, the appellants preferred Criminal Revision Application No.56 of 2011 before the Sessions Judge at Gandhi Nagar who allowed the same by his order dated 18th July, 2011 primarily on the ground that non-compliance with the provisions of Section 245(2) of the Cr.P.C. rendered the order passed by the Magistrate unsustainable. The Sessions Judge accordingly remitted the matter back to the trial Court with a direction to proceed in accordance with the provisions of Sections 244 to 247 of the Code keeping in view the decision of this Court in Ajoy Kumar Ghose v. State of Jharkhand and Anr. (2009) 14 SCC 115.

6. Undeterred by the revisional order the respondent-company filed Special Criminal Application No.1917 of 2011 before the High Court of Gujarat at Ahmedabad which application has been allowed by the High Court in terms of the order impugned before us. The High Court observed:

“In the facts of the case, it is not that the witnesses of the complainant have not been examined, therefore, the evidence has been recorded. Therefore, at that stage the opportunity was available with the accused as provided under law to cross examine the witnesses, however, it is not availed of by exercising the right of cross examination. It cannot be said that the procedure, as required, is not followed. Therefore, the observation made by the learned Sessions Judge relying on this judgment are misconceived.”