Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 1414

RAJASTHAN HIGH COURT
Manoj Kumar Garg, J.
M/s. Sunil Medicos, Hospital Road & Ors. - Appellants
Versus
State, Through Durg Control Inspector & Ors. - Respondents
S.B. Criminal Misc(Pet.) No. 2261 of 2020
Decided On : 04-05-2023

Advocates appeared:
Mr. Vishal Sharma, Advocate, for the Appellant; Mr. Mukesh Trivedi, PP, for the Respondent.

In warrant cases based on complaints, pre-charge evidence must be recorded before framing charges, as mandated by the Cr.P.C.

Headnote:
Quashing - Criminal Proceedings - Cr.P.C. Sections 246, 244 - The court emphasized the necessity of pre-charge evidence in warrant cases instituted on a complaint, interpreting relevant sections to mandate evidence before framing charges, leading to the quashing of the charge framed without such evidence.
Fact of the Case:

The petitioners sought to quash criminal proceedings against them for offenses under the Drugs and Cosmetics Act, arguing that the trial court improperly framed charges without recording pre-charge evidence.
Finding of the Court:

The court found that the trial court's action of framing charges without pre-charge evidence was illegal, as it violated the mandatory procedure outlined in the Cr.P.C.
Issues: Whether a Magistrate can frame charges in a warrant case without recording pre-charge evidence.
Ratio Decidendi: The court held that under Sections 244 and 246 of the Cr.P.C., pre-charge evidence must be recorded before charges can be framed in a warrant case instituted on a complaint.
Result: The order framing charges against the petitioners was quashed and the case was remanded for recording pre-charge evidence.

ORDER

1. The instant misc. petition under Section 482 Cr.P.C. has been filed by the petitioner for quashing the criminal proceedings pending before learned Sessions Judge, Merta in Sessions Case No.15/2018 and order dated 23.07.2019 against the petitioners for offence under Sections 27, 28, 22 of Drugs and Cosmetics Act whereby charge of the case have been framed against the petitioners.

2. Learned counsel for the petitioners submits that the case against the petitioners is pending before District and Sessions Judge, Merta. The case falls within the category of warrant case instituted on a complaint in which, it is mandatory that the precharge evidence should have been recorded before framing the charge against the petitioners but in this case the trial Court had not taken the pre-charge evidence and straightaway framed the charge against the petitioners. In these circumstances, the order regarding framing of charge is per se illegal and deserves to be set aside.

3. Learned Public Prosecutor oppose the prayer made by learned counsel for the petitioners.

4. I have considered the arguments advanced before me and perused the material available on record.

5. The question for consideration before this Court is whether in a warrant case otherwise than on a police report, even before any evidence is led, can the Magistrate straightaway proceed to frame charges against the accused. In the first instance, it is relevant to quote Section 246(1) of Cr.P.C.-

"246. Procedure where accused is not 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 a 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 him, he shall frame in writing a charge against the accused."

6. Section 246(1) falls under Chapter XIX of Cr.P.C., which provides for trial of warrant cases by Magistrate otherwise than on a police report.

7. When the accused appears or is brought before the Magistrate under Section 244 Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and may also issue summons to the witnesses for cross-examination or production of any document or thing. This is evidence before charge. Under Section 246(1) Cr.P.C., it is on the basis of such evidence that the Magistrate proceeds with the framing of charges, if he is satisfied that there exists a prima facie case against the accused.

8. This question also came for consideration before the Hon'ble Supreme Court in the case of Ajoy Kumar Ghose vs. State of Jharkhand and Ors. (2009) 14 SCC 115, and the Hon'ble Apex court held as follows -

"39....The language of the Section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) Cr.P.C., that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.

40. Now here, there is, however, one grey area. Section 246(1) Cr.P.C. is very peculiarly worded. The said grey area is on account of phrase 'or at any previous stage of the case'. The question is as to whether, even before any evidence is led under Section 244 Cr.P.C., can the Magistrate straightaway proceed to frame a charge. The debate on this question is not new, though there is no authoritative pronouncement of this Court, on that issue. There are cases, where the High Courts have specifically taken a view that the phrase does not empower the Magistrate to frame any charge in the absence of any evidence, whatsoever. It must be, at this stage, borne in mind th

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