The imperative nature of the procedure as laid down in S. 246 of the Criminal P. C. and the importance of providing the accused an opportunity to think over the matter in the light of the evidence before informing the court whether he wishes to cross-examine the witnesses already examined by the prosecution before framing of the charge.

( 1 ) THIS appeal has been preferred by the State of Karnataka against the judgment and order of the J. M. F. C. , Malur, Dt. 24th Feb. , 1987 in C. C. No. 270 of 1984 acquitting the respondent of the charges levelled against him. The respondent was prosecuting on the basis of a complaint filed by the Drugs Inspector, Kolar under S. 18-A read with S. 28, S. 18 (a) (vi) read with R. 65 (6) and S. 27 (b), S. 18 (a) (vi) read with R. 65 (18) of the Drugs and Cosmetics Act and the Rules framed thereunder. The learned Magistrate held that the prosecution had failed to prove the charges levelled against the respondent and consequently ordered his acquittal.

( 2 ) WE heard the learned Additional State Public Prosecutor on behalf of the appellant and the counsel for the respondent at length. We found that some of the important suggestions which should have been put to the witnesses had not been put to them and therefore many statements made by the witnesses went untested by cross-examination. Obviously, this went against the interest of the respondent. On further investigation we found that though the case was tried as a warrant case instituted otherwise than on a police report, the procedure envisaged by S. 246 of the Criminal P. C. was not followed and we feel that that has resulted in prejudice to the respondent.

( 3 ) IT is not in dispute that the Drugs Inspector, Kolar, filed a complaint which gave rise to C. C. No. 270 of 1984 before the Court of the J. M. F. C. , Malur. As earlier noticed, the complaint relates to the commission of offences under the Drugs and Cosmetics Act and the Rules framed thereunder.

( 4 ) SEVERAL witnesses were examined by the prosecution including P. W. 1 who is the complainant in the case. We find from the records that P. W. 1 was examined on 19-11-1985, 20-11-1985 and then again on 12-3-1986. Similarly, the other witnesses were examined on subsequent dates, but before the charges were framed against respondent. Ultimately, the learned Magistrate framed charges against the respondent on 6th Jan. , 1987. From the order sheet of the Court of the learned Magistrate it appears that immediately after framing of the charges and recording the plea of the respondent, who pleaded not guilty, the Court proceeded to fix 16/01/1987 as the date for the examination of the respondent under S. 313 of the Criminal P. C. In the order sheet of 6th Jan. , 1987 there is a noting to the effect that the counsel appearing for the parties have jointly stated that apart from the enquiry already made, no further enquiry is required to be made. The aforesaid noting in the order sheet, unfortunately, does not give a clear picture as to whether the accused-respondent had been questioned by the Court as to wheher he wished to cross-examine the witnesses already examined by the prosecution.

( 5 ) SECTION 246 of the Criminal P. C. provides that after recording of evidence, if the Magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence triable under this Chapter, he shall frame in writing a charge against the accused. 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. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Further, sub-sec. (4) of S. 246 lays down that if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted on a plea of guilt, 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. It is, therefore, apparent from the scheme of S. 246 of the Criminal P. C. that the law provides the accused an opportunity of thinking over the matte