The petitioner's failure to produce pre-charge evidence can lead to the discharge of the accused.

M.R. Verma - This revision petition is directed against the order dated 29-9-1999 passed by the learned Additional Chief judicial Magistrate, Shimla in criminal complaint No. 144/2 of 1995/94.

2. The facts leading to the presentation of the present petition, in brief, are that the petitioner/ complainant (hereafter referred to as the petitioner1) filed a complaint against the respondents/ accused (hereafter referred to as the respondents) for the commission of offences punishable under section 498-A. 355. 506. 509 and 109 of the Indian Penal Code. After recording preliminary evidence, the learned trial Magistrate directed issuance, of process against the respondents under sections 498-A, 355, 506 and 509 read with section 109 of the Indian Penal Code. After the presence of the accused had been secured, the learned trial Magistrate vide order dated 27-2.1995 directed production of pre-charge evidence on 15.1.1996. However, on the date so fixed the Presiding Officer was on leave and thereafter the effective date for recording pre-charge evidence was fixed for 10-81999. However, no evidence was produced on the date so fixed and the case Was adjourned for 29.9.1999 for pre-charge evidence. Again, on 29.9.1999 neither the petitioner was present nor pre-charge evidence was produced/ summoned. The learned trial Magistrate, therefore, held that the petitioner had failed to lead pre-charge evidence despite opportunities and had been absenting repeatedly and thus there being no pre-charge evidence, the respondents were discharged. Being aggrieved, the petitioner has preferred the present revision petition.

3. I have heard the learned counsel for the parties and have also gone through the records.

4. The impugned order has been assailed by the learned counsel for the petitioner on the following grounds: (iv) That there was evidence on record on the basis of which it could be conveniently concluded that there was grounds to proceed against the respondents and frame a charge against them: and (v) In any case, one more opportunity ought to have been afforded to the petitioner to produce pre-charge evidence. Ground No. (I)

5. The only material what is on record is the preliminary evidence of the petitioner which is recorded by a Magistrate while taking cognizance on a complaint under section 200 of the criminal procedure code (hereafter referred to as the code). This evidence, however, is recorded by a Magistrate in a complaint case as the case in hand is, only to form an opinion whether there is sufficient ground for summoning the accused in the case as required under section 204 of the case. When pursuant to the summons/warrants the accused appears or is brought before the court, the Magistrate is required to proceed with the complaint regarding commission of a warrant case in the manner as provided by sections 244 to 249 of the code. If the case is a summons case, the Magistrate is required to proceed with the matter in accordance with the provisions of sections 251 to 259 of the code. The process against the respondents in this case was issued for such offences wherein the punishment for imprisonment provided for is more than two years, therefore, the procedure to be adopted by the Magistrate was the one prescribed for trial of a warrant case instituted on a complaint and, thus, he was to proceed with the complaint in the manner as provided in sections 244 to 249 of the code.

6. Sections 244, 245 and 246 of the code are material for the purpose of determination of the question in hand. Section 244 provides that in a warrant case instituted otherwise than on a police report when the accused appears or is brought before the Court, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 provides that if upon taking such evidence the Magistrate considers that even if such evidence remains unrebutted, no case has been made out against the accused so as t