Before dealing with the rival arguments, it must be understood as to what procedure the learned Magistrate would have been required to follow in this case. This was a complaint case instituted otherwise than upon a police report and so would attract warrant trial procedure. Therefore, after issuance of process and appearance of the accused before the Court, the learned Magistrate would have been obliged to proceed in the case by recording evidence as required under Section 244 of Code of Criminal Procedure, which evidence admittedly has been recorded in this case. At this stage of the case, it was open to the applicant/accused to cross-examine the witnesses. But, it appears that out of three witnesses, cross-
examination of two witnesses has not been taken by the applicant and he has reserved his right to cross-examine these witnesses after charge. After recording of evidence under Section 244(1)is over, the next stage that arises is of Section 245(1), which requires a Magistrate to consider as to whether or not any case against the accused has been made out, which if unrebutted, would warrant his conviction. If the Magistrate comes to the conclusion that no case against the accused has been made out which if unrebutted would not warrant his conviction, the Magistrate, for the reasons to be recorded, has to mandatorily discharge the accused. However, if unrebutted evidence, apl594.12 in the opinion of the Magistrate, is sufficient to warrant conviction of the accused, the Magistrate has no other alternative than to frame a charge against the accused, as contemplated under Section 246 of Code of Criminal Procedure. This procedure has been explained in details by the Hon'ble Apex Court in the case of Ajoy Kumar Ghose v.
State of Jharkhand & anr. reported in AIR 2009 SC 2282, on which extensive reliance has been placed by learned counsel for the applicant.
10. In view of the mandate of Section 245(1) and also what has been held by the Hon'ble Apex Court in the case of Ajoy Kumar, supra, now it has to be examined if unrebutted evidence of respondent no. 1 in this case would warrant his conviction or not. It will also have to be borne in mind while doing so that probative value of the material on record cannot be gone into at the stage of framing of charge, as held in the cases of (i) Mohd. Akbar Dar & ors. vs. State of Jammu & Kashmir & ors. reported in 1981 (Supp) SCC 80 and (ii) Krishnanath Gopal Matodkar v. State reported in 2009(3) Mh.L.J. 821.
Bombay High Court
Uttam S/O Patruji Khobragade vs Shri Omprakash S/O Damodhar Rawat ... on 20 February, 2015
Bench: S.B. Shukre
Citation; 2015(3) crimes 458 Bom
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