Holding

A charge under s.246(1) Cr.P.C. cannot be framed unless some evidence has been taken under s.244 Cr.P.C.; the order framing the charge in this case was premature and is set aside.

Summary

The Registrar General of Patna High Court lodged a complaint alleging that the accused, including Ajoy Kumar Ghosh, used a forged letter in court. The Chief Judicial Magistrate (CJM) took cognizance, issued summons, and the accused applied for discharge under s.245(2) Cr.P.C., which the trial court rejected and instead framed charges under s.246(1) Cr.P.C. The Supreme Court examined whether a charge can be framed without any evidence under s.244 Cr.P.C. and held that the phrase "at any previous stage of the case" in s.246(1) requires some evidence to be on record; otherwise the accused loses the right to cross‑examine. Consequently, the charge was deemed premature, the order framing it was quashed, and the matter was remitted to the trial court to first take prosecution evidence and then decide on framing charges. The appeal was partially allowed.

Issues considered

The scope of "at any previous stage of the case" in s.245(2) and s.246(1) Cr.P.C.
Whether a magistrate may frame a charge under s.246(1) Cr.P.C. without any evidence being taken under s.244 Cr.P.C.
Whether the trial court erred in rejecting the discharge application and proceeding to frame charge
The accused's right to cross‑examine before a charge is framed

Legislation cited

Code of Criminal Procedure, 1973s. 195(1)(b), s. 200, s. 203, s. 204, s. 238, s. 239, s. 240, s. 244, s. 245, s. 245(1), s. 245(2), s. 246, s. 246(1), s. 340
Indian Penal Code, 1860s. 177, s. 181, s. 182, s. 192, s. 196, s. 199, s. 209, s. 466, s. 468, s. 471, s. 474

Subjects

Section 245 Cr.P.C.Section 246 Cr.P.C.charge framingdischarge applicationcross‑examinationpremature chargemagistrate jurisdictionCriminal Procedure CodeIndian Penal Codeforgery

Judgment

[2009] 4 S.C.R. 515

AJOY KUMAR GHOSE A
V.
STATE OF JHARKHAND & ANR.
Criminal Appeal No. 485 of 2009

MARCH 18, 2009
B
(TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.)
J
Code of Criminal Procedure, 1973:
Sections 244, 245, 246 - Official complaint from Registrar
General of High Court stating that the accused persons were c
guilty of using a fabricated and forged letter in the court with
active connivance and conspiracy on their part - Summons
issued -Application under s. 245(2) Cr.PC. rejected- Charges
framed - Correctness of - Held: The charges framed clearly
premature - There should be evidence before framing the
D
charges - Opportunity to cross examine is lost- Order framing
the charge quashed - Matter to go back to Trial Court -
Prosecution to offer witnesses under s.244(1) Cr.PC. and
opportunity to cross-examine - Only thereafter Trial Court
would proceed to decide as to whether the charges to be framed
E
or not- Penal Code, 1860, Sections 177, 181, 182, 192, 196,
199, 209, 466, 468, 471, 474 .
..
The Registrar General of High Court made a
complaint to the effect that the accused persons were
guilty of using a fabricated and forged letter in the court F
with active connivance and conspiracy on their part. The
CJM took cognizance of the complaint and ordered issue
of summons. Accused approached the High Court by way
of writ petition and it was dismissed. SLP was filed in
_, Supreme Court and it was dismissed as premature. G
Appellant thereafter appeared before the CJM, obtained
bail and moved an application for discharge. The trial court
dismissed the application and proceeded to frame

515 H
516 SUPREME COURT REPORTS [2009) 4 S.C.R.

A charges. Appellant approached the High Court by filing a
writ petition which was dismissed. Hence the appeal.
Disposing of the appeal, the Court
HELD: 1.1 There is a clear difference in Sections
8 245(1) and 245(2) of the Cr.P.C. Under Section 245(1 ), the
Magistrate has the advantage of the evidence led by the
prosecution before him under Section 244 and he has to
consider whether if the evidence remains unrebutted, the
conviction of the accused would be warranted. If there is
c no discernible incriminating material in the evidence, then
the Magistrate proceeds to discharge the accused under
Section 245(1) Cr.P.C. [Para 16] [530-F-G]
1.2 The situation under Section 245(2) Cr.P.C. is,
however, different. There, under sub-Section (2), the
D Magistrate has the power of discharging the accused at ...
any previous stage of the case, i.e., even before such
evidence is led. However, for discharging an accused
under Section 245 (2) Cr.P.C., the Magistrate has to come
to a finding that the charge is groundless. There is no
E question of any consideration of evidence at that stage,
because there is none. The Magistrate can take this
decision before the accused appears or is brought before
the Court or the evidence is led under Section 244 Cr.P.C.
The words appearing in Section 245(2) Cr.P.C. "at any
F previous stage of the case", clearly bring out this position.
[Para 17] [530-H; 531-A-B]
1.3 The previous stage referred to under Section 245
Cr.P.C. normally comes to an end, because the next stage
is only the appearance of the accused before the
G Magistrate in a warrant-case under Section 244 Cr.P.C.
Under Section 244 Cr.P.C., on the appearance of the
accused, the Magistrate proceeds to hear the prosecution
and take all such evidence, as may be produced in
support of the prosecution. He may, at that stage, even
H issue summons to any of the witnesses on the application
AJOY KUMAR GHOSE V. 517
STATE OF JHARKHAND & ANR.

made by the prosecution. Thereafter comes the stage of A
Section 245(1) Cr.P.C., where the Magistrate takes up the
task of considering all the evidence taken under Section
244(1) Cr.P.C., and if he comes to the conclusion that no
case against the accused has been made out, which, if
unrebutted, would warrant the conviction of the accused, B
the Magistrate proceeds to discharge him. The situation
under Section 245(2) Cr.P.C., however, is different, as has
)
al.ready been' pointed out earlier. The Magistrate
thereunder, has the power to discharge the accused at
any previous stage of the case. Thus, the Magistrate can c
discharge the accused even when the accused appears,
in pursuance of the summons or a warrant and even before
the evidence is led under Section 244 Cr.P.C., makes an
application for discharge.[Para 18] [532-C-D-E-F-G]
1.4 In the present case, the Magistrate did not dismiss D
the complaint under Section 203 Cr.P.C. However, since
this was a complaint made by the Court, there was no
question of examining complainant or any of his
witnesses under Section 200 Cr.P.C. Further, there was
no question of even issuing any direction for investigation E
under Section 202 Cr.P.C., since the complaint was made
by the Court.[Para 19] [532-H; 533-A]
2. Since this was a complaint made by the Court,
there would be no question of there being any
examination of complainant or his witnesses on oath. As F
has already been stated earlier, the Magistrate simply
issued the process under Section 204 Cr.P.C. When the
accused appeared in pursuance to the summons sent to
him, under Section 244 Cr.P.C., the defence came out with
an application. There can be no difficulty that the G
discharge application was perfectly in order at thaJ stage.·
Therefore, what was available before the Magistrate
besides this discharge application was, a bare complaint.
There was absolutely nothing beyond the complaint
available, for the Magistrate to consider the framing of H
518 -suPREME COURT REPORTS [2009] 4 S C.R

A charge. The Magistrate could, undoubtedly, have
proceeded under Section 245(2) Cr.P.C., on the basis of
discharge application and discha,rge him. However, he
would have been required to give reasons for discharging
at that stage, when no evidence or no material,
B whatsoever, was available with him, excepting a bare
complaint. [Para 19] [533-E-F-G]
3.1 An order under Section 245(2) Cr.P.C. results in
discharge of the accused, whereas, an order under
Section 246 Cr.P.C. creates a situation for the accused to
c face a full-fledged trial. Therefore, the two Sections would
have to be interpreted in slightly different manner, keeping
in mind the different spheres, in which they operate. The
words "or at any previous stage of the case" appearing
in Section 246 Cr.P.C. would include Section 245 also,
D where the accused has not been discharged under
Section 245 Cr.P.C., while the similar term in Section 246(2)
can include the stage even before any evidence is
recorded. It cannot, therefore, be held that the words "at
any previous stage of the case" as appearing in Section
E 245 Cr.P.C., would have to be given the same meaning
when those words appear in Section 246 Cr.P.C. [Para 23]
[536-E-F]
3.2 Coming to the facts of this case, it is clear that
F the opportunity to the accused to cross-examine the
witnesses is lost, as the Trial Court has straightaway
proceeded to frame the charge. In that view, the order,
framing the charge requires to be and is quashed. The
matter will now go back before the Trial Court, where the
G prosecution may offer the witnesses under Section 244(1)
Cr.P.C. and the opportunity to cross-examine, would be
offered to the accused. It is only thereafter, that the Trial
Court would proceed to decide as to whether the charge
is to be framed or not. The charge framed in this case is
H clearly premature, in view of the reasons given above. The
AJOY KUMAR GHOSE V 519
STATE OF JHARKHAND & ANR.

order framing the charge would, therefore, have to be set A
aside. [Para 27] [539-G-H; 540-A-B]
Verendra Vs. Aashraya Makers 1999 Criminal Law
Journal 4206 - overruled.
Iqbal Singh Marwah & Anr V Meenakshi Marwah & Anr B
2005 (4) SCC 370; Cricket Association of Bengal & Ors. Vs.
State of West Bengal & Ors. 1971 (3) SCC 239; Luis de
.)
Piedade Lobo Vs. Mahadev 1984 Criminal Law Journal 513;
Manmohan Malhotra Vs. PM. Abdul Salam & Anr 1994
Criminal Law Journal 1555; Mohammed Sheriff Vs. Abdul C
Karim AIR 1928 Madras 129; Gopa/ Chauhan Vs. Smt. Satya
1979 Criminal Law Journal 446; Sambhaji Nagu Vs. State of
Maharashtra 1979 Criminal Law Journal 390; Abdul Nabi Vs.
Gu/am Murthuza 1968 Criminal Law Journal 303; TK. Appu
Nair Vs. Earnest AIR 1967 Madras 262 and P Ugender Rao D
& Ors. Vs. J. Sampoorna & Ors. 1990 Criminal Law Journal
762 - referred to.
4.1 This Court does not express anything on merits
of the case, particularly because it is directed that the E
evidence of the prosecution to be led under Section 244
(1) Cr.P.C. Any expressions are likely to cause prejudice
to the prosecution, as the case may be, accused.
Therefore, the matter is left at this.[Para 28] [540-C]
4.2 The matter shall now go back to the Trial Court F
and the Trial Court shall proceed to examine all the
witnesses offered by the prosecution and it is only after
the evidence of those witnesses is recorded, that the Trial
Court would proceed to decide as to whether the charge
is to be framed or not. [Para 29] [540-D] G
Case Law Reference
2005 (4) sec 370 referred to Para 10
1911 (3) sec 239 referred to Para 20
H
520 SUPREME COURT REPORTS (2009] 4 S.C.R

A 1984 Criminal Law
Journal 513 referred to Para 20
1994 Criminal Law Journal
1555 referred to Para 20
B AIR 1928 Madras 129 referred to Para 20
1979 Criminal Law
Journal 446 referred to Para 20
1979 Criminal Law
c Journal 390 referred to Para 24
1968 Criminal Law
Journal 303 referred to Para 24
AIR 1967 Madras 262 referred to Para 24

D 1990 Criminal Law
Journal 762 referred to Para 24
1999 Criminal Law
Journal 4206 overruled Para 26
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
E No. 485 of 2009
From the Judgement and Order dated 03/07.07.2006 of
the Hon'ble High Court of Jharkhand at Ranchi in, W.P. (CR.)
No. 315 of 2005.
F Ranjit Kumar, Balraj Dewan, Aurbindo, lshant Shukla, for
the Appellants.
Ajay Kr, Jha, Divya Singha (Mis P. II Parekh & Co.), Ratan
Kumar Choudhuri, M.S. Chhabra, for the Respondent.
The Judgement of the Court was delivered by
G
V.S.SIRPURKAR, J.
1. Leave granted.
2. A judgment passed by the Hig7h Court of Jharkand,
H Ranchi, dismissing the writ petition and confirming the order of
AJOY KUMAR GHOSE V 521
STATE OF JHARKHAND & ANR [VS.SIRPURKAR, J.]

the Trial Court, refusing to discharge the accused-appellant, is A
in challenge here.
3. The appellant Ajoy Kumar Ghosh, along with some
others, is facing prosecution for the offences under Sections
177, 181, 182, 192, 196, 199, 209, 466, 468, 471 and 474 of
8
the Indian Penal Code (hereinafter referred to as 'IPC' for short),
before the Chief Judicial Magistrate, Ranchi. These charges
are based on an official complaint filed by the Registrar General,
Patna High Court against these accused persons including the
present appellant, who, at the relevant time was Director, Indian
School of Mines, Dhanbad. In the said complaint it is, inter alia, C
contended:

(i) That one Shri M.S. Chhabra, who was the Assistant
Professor in the Indian School of Mines, Dhanbad, was
proceeded against for misconduct and accordingly o
punishment of compulsory retirement was imposed on
him.

(ii) Indian School of Mines, Dhanbad, a registered
Society, is a deemed university governed by the Rules &
Regulations and bye-laws of the School. In the matter of E
classification and method of appointment and terms and
conditions of service for academic staff, Rules are framed
with the approval of the Central Government. Rule 4 of the
Rules & Regulations prescribes the constitution of General
Council. The classification and method of appointment F
are governed by the bye-laws. Selection to the post of
Assistant Professor is governed by Clause 38(b), while
suspension and penalties are governed by Clauses 10
and 11 of the said bye-laws. Appeal is provided against
the same under Rule 12. It is further stated in the complaint G
that the Council is defined under Clause 2(b) of the said
bye-laws and means a General Council constituted under
Rule 4 of the Rules & Regulations.
(iii) That Shri M.S.Chhabra, after being found guilty, was H
522 SUPREME COURT REPORTS (2009] 4 S.C.R.

A awarded the punishment of compulsory retirement and he
preferred an appeal to the General Council against the
imposed penalty, which appeal was disallowed Shri
M.S.Chhabra, therefore, filed CWJC No.678/92(R) for
quashing the said order. However, even that was disposed
B of by the High Court with a direction to the General Council
of the School to give personal hearing to the appellanU
petitioner and to dispose of the appeal thereafter. Against
this order of the High Court, the Chairman, Director-in-
Charge and Acting Registrar, namely, Shri B.K. Rao, Shri
c A.K. Ghosh and Shri M. Ramakrishna, respectively,
preferred an appeal in Supreme Court, which directed
expeditious decision within three months after the fresh
appeal was filed by Shri M.S. Chhabra. However, since
the appeal was not disposed of, Shri M.S.Chhabra filed
another writ petition which was registered as CWJC
D
No.2932/92(R) and alleged therein that on 31.03.1989,
no Head of the Department was the member of the General
Council and without observing the procedure of
amendment to the Rules as laid down under Section 23,
mischievous efforts had been made by the Chairman,
E Director and the Registrar for getting new sets of Rules
registered under the Societies Registration Act. He further
alleged that services of one Shri A.K. Singh, Estate-cum-
Security Officer were availed of for liaison work and thus
the amendment was without the resolution of the General
F Council and without the approval of the Government of
India, in which Heads of Department as member of the
General council were included and that resolution of the
General Council for revised Memorandum of Association
and Rules & Regulations were made to appear as if they
G were registered with the Inspector General of Registration,
Patna on 18.06.1992. He further stated that the Chairman,
Director and the Registrar, by indulging in the case
maliciously, were acting under utter violation of procedure
laid down und~r Section 23 of the Societies Registration
H Act.
AJOY KUMAR GHOSE V. 523
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]

(iv) That the counter affidavit had been filed to this writ A
petition by Shri M. Ramakrisha, S/o Shri M. Subbarao on
behalf of the respondents in his alleged capacity of Acting
Registrar. In para 37 of the said counter affidavit, the
contention made by Shri M.S.Chhabra in paras 69 to 77
of the writ petition were denied and it was asserted that s
in view of the subsequent amendments made in the Rules
& Regulations of the School, which were ratified by the
Inspector General of Registration, the necessary
amendments were made in the Rules & Regulations of
the School and that was prior to the sitting of the General c
Council meeting dated 11.06.1992. A certificate to that
effect was obtained from the office of the Inspector General
of Registration, Patna, Bihar and the letter issued by the
Inspector General, Registration was enclosed as
Annexure-A to the counter affidavit. The said letter dated
0
09.06.1992 was allegedly issued by one Shri Vikas
Prasad, Assistant Inspector General of Registration,
Patna, Bihar.

(v) That Shri M. Ramakrishna had, in his counter affidavit
stated that the contents of para 37, which have been E
quoted above, were based on information derived from
the records of the case.

(vi) That the Writ Application was disallowed by the
Division Bench of the Patna High Court by its judgment
and order dated 05.04.1994, against which a special leave F
petition came to be filed before Supreme Court wherein
the Court went into the issue raised by the appellant/
petitioner with regard to the genuineness of the letter dated
09.06.1992, purported to have been written by Shri Vikas
Prasad and enclosed as Annexure-A with the counter G
affidavit filed by Prof. M. Ramakrishna.
(vii) That a notice was sent to one Shri Vikram Prasad,
Assistant Inspector General of Registration, who, however,
filed an affidavit disclosing that the said letter was a forged H
524 SUPREME COURT REPORTS (2009] 4 S.C.R.

A document. Therefore, Supreme Court had directed to take
action under the provisions of Section 340 of the Criminal
Procedure Code with respect to that letter.
(viii)That in compliance of the order of Supreme Court,
the complaint was being filed. for which first a notice was
B issued under Section 340, Cr.P.C. by Patna High Court
and during the course of inquiry, it was found:

(a) That the letter bearing No.1206 dated 09.06.1992
was forged and fabricated and was never issued from the
c office of the Inspector General of Registration
(b) That the said letter which was produced in the Court
and used in the writ petition CWJC No.2932/92 (R) in the
counter affidavit dated 21.01.1993 was filed by Shri M
Ramakrishna.
D
(c) Shri S.K. Das, Section Officer in the Office of the
Inspector General of Registration was found to have
delivered that letter to Shri A.K. Singh, Estate-cum-Security
Officer.

E (d) That Shri A.N. Tripathi, who was the Assistant
Registrar (Establishment) of the School at the relevant
time, was dealing with the writ and was acquainted with
the facts and circumstances of the case
(e) Shri A.K. Ghosh, the present petitioner was, at the
F relevant time Director of the School and in that capacity
he was found to be fully involved and in the know of all
concerned material.
(f) Shri Vikram Prasad, Assistant Inspector General of
G Registration, had filed an affidavit in the Supreme Court
as also in the High Court to the effect that the letter was
not issued by him, but till the last date of inquiry, he did not
take a clear stand that the signature bearing a letter was
not his signatiire.

H (ix) That all the accused persons were guilty of using a
AJOY KUMAR GHOSE V. 525
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]

fabricated and forged letter in the Court of law with A
active connivance and conspiracy on their part.

,\ 4. Cognizance was taken on the basis of this complaint by
an order dated 20.08.1999 and summons were ordered to be
issued by the CJM, Ranchi.
. B
5. There are some events which took place before the
cognizance was taken, for example, on 06.03.1998, Shri M.S.
Chhabra had handed over an application which was purportedly
an application under Section 340 of the Code of Criminal
Procedure (hereinafter referred to as "Cr.P.C." for short) The c
High Court accepted that application on the same day and
directed that a notice be issued to the respondents including
the present appellant by the Registry for their appearance before
the Court on 02.04.1998. This order was challenged by the Indian
School of Mines and some other persons including the present D
appellant by way of a Special Leave Petition in this Court
whereupon this Court disposed it of as being premature. It was
observed that the petitioners, instead of giving reply to the notice
in the High Court, had rushed through a Special Leave Petition
and, therefore, this Court did not find it a fit case to interfere.
E
6. The appellant thereafter filed reply to the show cause
notice issued by the Patna High Court under Section 340 Cr.P.C.
on 12.04.1999 wherein the appellant denied that he had any
knowledge about the aforementioned document dated
09.06.1992. The Division Bench of the High Court at Patna, by F
its order dated 16.07.1999 straightaway discharged the
Chairman of the Governing Council, Shri B.K. Rao and two other
members of the Governing Council, viz., Shri 8.8. Dhar and
Shri K. Paul. However, the Court directed filing of complaint
against the appellant who was also a member of the Governing G
r,
Council, since he happened to be the Acting Director of the
Indian School of Mines, Dhanbad, at the relevant time. The High
Court, however, included in the array of accused, Shri Vikram
Prasad, Assistant Inspector General of Registration, Bihar who
was a signatory to the letter dated 09.06.1992.
H
526 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 7. As has been stated earlier, the complaint came to be
filed by the Registrar of Patna High Court on 09.08.1999 wherein
cognizance was taken by CJM, Ranchi. The appellant thereafter
filed Special Leave Petition No.16037/1999 before this court ''
against the order dated 16.07.1999 passed by the Patna High
B Court, wherein three other persons were discharged while
complaint was directed to be filed against some others,
including the appellant. This Court issued notice on 19.11.1999.
However, on 17.04.2001, this court dismissed the aforesaid ~
Special Leave Petition but permitted the appellant to raise all
c contentions in the Trial Court including the right to plead for
discharge and also granted anticipatory bail to him. The order
passed by this Court is as under:
"We permit the petitioners to raise all their contentions in
the trial court including the right to plea for discharge. If
D petitioner would appear and apply for bail before the trial
Court they shall be released on bail on executing a bond
for such sum as may be fixed by that court with or without
sureties. Accordingly, special leave petitions are
dismissed."
E 8. The appellant accordingly appeared before the CJM,
Ranchi on 11.07.2005 and obtained bail. Thereafter, he moved
an application for discharge on the same date. However, the
Trial Court dismissed the discharge application in limine and
proceeded to frame charges against the petitioner. The
F petitioner, therefore, filed a Writ Petition (Crl.) No.315/2005,
challenging the order dismissing discharge application and the
order framing charge, before the High Court of Jharkhand at
Ranchi which was dismissed on 03/07.07.2006, necessitating
the filing of present Special Leave Petition.
G
9. In the impugned order, the High court quoted the
judgment passed by the Patna High Court dated 16.07.1999
and observed that the letter dated 09.06.1992 was found to be
forged and fabricated in the inquiry instituted by the Department
and, therefore, offence under Section 195(1)(b) Cr.P.C.
H
AJOY KUMAR GHOSE V. 527
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]

appeared to have been committed in respect of that letter. The A
High Court came to the conclusion that since the Division Bench
of the Patna High Court, by its earlier elaborate judgment, had
clearly found, on the basis of evidence on record, that the
appellant was well aware of filing of such counter affidavit in
which a forged letter was used before the Court on behalf of B
Indian School of Mines, it could not be said that the allegations
against the appellant were based on mere suspicion. It further
recorded a finding that documentary evidence was sufficient
to frame charge against the appellant. It is this judgment of the
Patna High Court, which has fallen for our consideration. C

10. Shri Ranjit Kumar, learned Senior Counsel appearing
on behalf of the appellant firstly urged that there was no material
whatsoever against the appellant who, at the relevant time, was '
the Acting Director of the Indian School of Mines, Dhanbad. He
referred to the earlier order passed by this Court and pointed D
out that this Court had given the liberty to the appellant to file the
discharge application and it was in terms of that order that the
application was filed. The further argument of Shri Ranjit Kumar
is that neither the Trial Court nor the High Court had considered
the questions raised in the discharge application. He pointed E
out on merits that it was not the appellant who authored the
aforementioned letter dated 09.06.1992, nor had the appellant
• sworn or filed the affidavit before the High Court, of which the
alleged letter was part, since that affidavit was sworn by Shri M.
Ramakrishna. He argued that the appellant had not even taken F
any advantage from the letter dated 09.06.1992. He further
argued that in spite of the order of this Court, specifically granting
liberty to the appellant to file a discharge application, the
Division Bench of the Patna High Court did not go into the aspect
of discharge at all. Learned Senior Counsel, by way of his legal G
submissions, urged that at the time when the inquiry under
Section 340 Cr.P.C. was ordered in relation to the alleged forgery
of the letter dated 09.06.1992, the provisions of law with
reference to the forgery of document contemplated under
Section 195(1) (b) Cr.P.C. and related Sections did not make a H
528 SUPREME COURT REPORTS [2009] 4 S C.R.

A distinction between forgery being committed outside the Court
and while the document was custodia /egis. The learned counsel
heavily relied upon a decision of this Court reported as Iqbal
Singh Marwah & Anr. V Meenakshi Marwah & Anr. {2005 (4)
SCC 370] wherein this Court had held that proceeding under
B Section 340 read with Section 195 Cr.P.C. could only be initiated
if the forgery was committed during the time when the documents
were custodia legis and not when the forgery was committed
outside the Court i.e. before the document had been produced
or given in evidence in a proceeding in any Court. He, therefore,
c urged that there could not be any initiation of proceedings under
Section 340 Cr.P.C. much less for the offences under Section
195 Cr.P.C. and the other allied offences because, admittedly,
the forgery was not committed in respect of the document dated
09.06.1992 when the letter was custodia legis. Learned counsel
also invited our attention to the earlier order passed by the High
D
Court wherein three other accused were discharged, who were
similarly circumstanced as the appellant herein.
11. As against this, it was urged on behalf of re'spondent
No.2 that the High Court was correct in rejecting the petition of
E the petitioner/appellant and in refusing discharge from the
prosecution. Learned counsel urged that there was enough
material with the complainant and it was clear that the appellant
was aware of the aforementioned forgery and he was party to
the conspiracy of using forged letter.
F 12. There can be no doubt that in the present case, this
Court had specifically granted liberty to the appellant to file a
discharge application. We have quoted that order of this Court
in para 7 of this judgment. Accordingly, the appellant filed a
discharge application in the Trial Court, where the trial was
G · pending, contending therein that there was no material available
even for framing the charge. It was specifically pleaded in the
said application that the said discharge was being sought for
under sub-Section (2) of Section 245 Cr.P.C.
13. The essential difference of procedure in the trial of
H
AJOY KUMAR GHOSE V. 529
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.)

warrant case on the basis of a police report and that instituted A
otherwise than on the police report, is particularly marked in
Sections 238 and 239 Cr.P.C. on one side and Sections 244
and 245 Cr.PC., on the other. Under Section 238, when in a
warrant case, instituted on a police report, the accused appears
or is brought before the Magistrate, the Magistrate has to satisfy s
himself that he has been supplied the necessary documents
,; like police report, FIR, statements recorded under sub-Section
(3) of Section 161 Cr.P.C. of all the witnesses proposed to be
examined by the prosecution, as also the confessions and
statements recorded under Section 164 and any other c
documents, which have been forwarded by the prosecuting
agency to the Court. After that, comes the stage of discharge,
for which it is provided in Section 239 Cr.P.C. that the Magistrate
has to consider the police report and the documents sent with it
under Section 173 Cr.P.C. and if necessary, has to examine the
0
accused and has to hear the prosecution of the accused, and if
on such examination and hearing, the Magistrate considers the
charge to be groundless, he would discharge the accused and
record his reasons for so doing. The prosecution at that stage
is not required to lead evidence. If, on examination of
aforementioned documents, he comes to the prima facie E
conclusion that there is a ground for proceeding with the trial,
he proceeds to frame the charge. For framing the charge, he
does not have to pass a separate order. It is then that the charge
is framed under Section 240 Cr.P.C. and the trial proceeds for·
recording the evidence. Thus, in such trial prosecution has only F
one opportunity to lead evidence and that too comes only after
the charge is framed.
14. However, in a warrant trial instituted otherwise than on
a police report, when the accused appears or is brought before G
the Magistrate under Section 244(1) Cr.P.C., the Magistrate has
to hear the prosecution and take all such evidence, as may be
produced in support of the prosecution. In this, the Magistrate
may issue summons to the witnesses also under Section 244(2)
Cr.PC. on the application by prosecution. All this evidence is H
530 SUPREME COURT REPORTS [2009] 4 S.C.R.

A evidence before charge. It is after all this, evidence is taken,
then the Magistrate has to consider under Section 245(1)
Cr.P.C., whether any case against the accused is made out,
which, if unrebutted, would warrant his conviction, and if the
Magistrate comes to the conclusion that there is no such case
B made out against the accused, the Magistrate proceeds to
discharge him. On the other hand, if he is satisfied about the
prima facie case against the accused, the Magistrate would
frame a charge under Section 246(1) Cr.P.C. The complainant '
then gets the second opportunity to lead evidence in support of
c the charge unlike a warrant trial on police report, where there is
only one opportunity. In the warrant trial instituted otherwise than
the police report, the complainant gets two opportunities to lead
evidence, firstly, before the charge is framed and secondly, after
the charge. Of course, under Section 245(2) Cr.P.C., a
Magistrate can discharge the accused at any previous stage
D
of the case, if he finds the charge to be groundless.
15. Essentially, the applicable Sections are Section 244
and 245 Cr.P.C., since this is a warrant trial instituted otherwise
than on police report. There had to be an opportunity for the
E prosecution to lead evidence under Section 244(1) Cr.P.C. or
to summon its witnesses under Section 244(2) Cr.P.C. This did
not happen and instead, the accused proceeded to file an
application under Section 245(2) Cr.P.C., on the ground that
the charge was groundless.
F 16. Now, there is a clear difference in Sections 245(1) and
245(2) of the Cr.P.C. Under Section 245(1 ), the Magistrate has
the advantage of the evidence led by the prosecution before
him under Section 244 and he has to consider whether if the
evidence remains unrebutted, the conviction of the accused
G would be warranted, If there is no discernible incriminating
material in the evidence, then the Magistrate proceeds to
discharge the accused under Section 245(1) Cr.P.C.
17. The-situation under Section 245(2) Cr.P.C. is, however,
different. There, under sub-Section (2), the Magistrate has the
H
AJOY KUMAR GHOSE V. 531
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]
~'
power of discharging the accused at any pre\ffous stage of the A
case, i.e., even before such evidence is led. However, for
discharging an accused under Section 245(2) Cr.P.C., the
Magistrate has to come to a finding that the charge is
groundless. There is no question of any consideration of
evidence at that stage, because there is none. The Magistrate B
can take this decision before the accused appears or is brought
before the Court or the evidence is led under Section 244 Cr.P.C.
The words appearing in Section 245(2) Cr.P.C. "at any previous
stage of the case", clearly bring-out this position. It will be better
to see ,what is that "previous stage". c
18. The previous stage would obviously be before the
evidence of the prosecution under Section 244'(1) Cr.P.C. is
completed or any stage prior to that. Such stages would be
under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section
200, after taking cognizance, the Magistrate examines the D
complainant or such other witnesses, who are present. Such !~·
examination of the complainant and his witnesses is not ·~.·
necessary, where the complaint has been made by a public
servant in discharge of his official duties or where a Court has
made the complaint or further, if the Magistrate makes over the E
case for inquiry or trial to another Magistrate under Section 192
-I Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not
competent to take the cognizance of the case, he would return
the complaint for presentation to the proper Court or direct the
complainant to a proper Court. Section 202 Cr.P.C. deals with F
the postponement of issue of process. Under sub-Section (1),
he may direct the investigation to be made by the Police officer
or by such other person, as he thinks fit, for the purpose of
deciding whether or not there is sufficient ground for proceeding.
i
Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given G
such a direction for such an investigation, where he finds that
offence complained of is triable exclusively by the Court of
sessions. Under Section 202(1 )(b) Cr.P.C., no such direction
can be given, where the complaint has been made by the Court.
Under. Section 203 Cr.P.C., the Magistrate, after recording the H
532 SUPREME COURT REPORTS [2009] 4 S.C.R

A statements on oath of the complainant and of the witnesses or
the result of the inquiry or investigation ordered under Section
202 Cr.P.C., can dismiss the complaint if he finds that there is
no sufficient ground for proceeding. On the other hand, if he
comes to the conclusion that there is sufficient ground for
B proceeding, he can issue the process under Section 204 Cr.P.C.
He can issue summons for the attendance of the accused and
in a warrant-case, he may issue a warrant, or if he thinks fit, a '
summons, for securing the attendance of the accused. Sub-
sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not
relevant for our purpose. It is in fact here, that the previous stage
c
referred to under Section 245 Cr.P.C. normally comes to an end,
because the next stage is only the appearance of the accused
before the Magistrate in a warrant-case under Section 244
Cr.P.C. Under Section 244, on the appearance of the accused,
the Magistrate proceeds to hear the prosecution and take all
D
such evidence, as may be produced in support of the
prosecution. He may, at that stage, even issue summons to any
of the witnesses on the application made by the prosecution.
Thereafter comes the stage of Section 245(1) Cr.P.C., where
the Magistrate takes up the task of considering on all the
E evidence taken under Section 244(1) Cr.P.C., and if he comes
to the conclusion that no case against the accused has been
made out, which, if unrebutted, would warrant the conviction of
the accused, the Magistrate proceeds to discharge him. The
situation under Section 245(2) Cr.P.C., however, is different, as
F has already been pointed out earlier. The Magistrate thereunder,
has.the power to discharge the accused at any previous stage
of the case. We have already shown earlier that that previous
stage could be from Sections 200 to 204 Cr.P.C. and till the
completion of the evidence of prosecution under Section 244
G Cr.P.C. Thus, the Magistrate can discharge the accused even
when the accused appears, in pursuance of the summons or a
warrant and even before the evidence is led under Section 244
Cr.P.C., makes an application for discharge.
19. In the present case, the Magistrate did not dismiss the
H
AJOY KUMAR GHOSE V. 533
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]

complaint under Section 203 Cr.P.C. However, since this was a A
complaint made by the Court, there was no question of examining
complainant or any of his witnesses under Section 200 Cr.P.C.
Further, there was no question of even issuing any direction for
investigation under Section 202 Cr.P.C., since the complaint
was made by the Court. This is clear from the wordings of s
Section 202(1) Cr.P.C. It is as under:·
"202(1)
Provided that no such direction for investigation
shall be made· c
(a) x x x x x
(b) where the complain has not been made
by a Court, unless the complainant and
the witnesses present (if any) have been
0
examined on oath under Section 200."
We have already pointed out that since. this was a
complaint made by the Court, therefore, there would be no
question of there being any examination of complainant or his
witnesses on oath. As has already been stated earlier, the E
Magistrate simply issued the process under Section 204 C1.P.C.
When the accused appeared in pursuance to the summons sent
to him, under Section 244 Cr.P.C., the defence came out with
an application. There can be no difficulty that the discharge
application was perfectly in order at that stage. Therefore, what F
was available before the Magistrate besides this discharge
application was, a bare complaint. There was absolutely nothing
beyond the complaint available, for the Magistrate to consider
the framing of charge. The Magistrate could, undoubtedly, have
proceeded under Section 245(2) Cr.P.C., on the basis of G
discharge application and discharge him. However, he would
have been required to give reasons for discharging at that stage,
when no evidence or no material, whatsoever, was available
with him, excepting a bare complaint.
20. The Magistrate, in this case, not only dismissed the H
534 SUPREME COURT REPORTS [2009] 4 S.C.R.

A application, but also proceeded to frame the charge, which order
was also in challenge in the Writ Petition filed before the Division
Bench. We have now to see as to whether the Magistrate was
justified in dismissing the discharge application and then
straightaway to frame a charge under Section 246(1) Cr.P.C. If
B under Section 245(2) Cr.P.C., there could be a discharge at
any previous stage which we have discussed about, there is a
necessary sequel, an application could also be made at that
stage. The Magistrate has the power to discharge the accused
under Section 245(2) Cr.PC. at any previous stage, i.e., before
c the evidence is recorded under Section 244(1) Cr.P.C., which
seems to be the established law, particularly in view of the
decision in Cricket Association of Bengal & Ors. Vs. State of
West Bengal & Ors. reported in 1971 (3) SCC 239, as also the
subsequent decision of the Bombay High Court in Luis de
Piedade Lobo Vs. Mahadev reported in 1984 Criminal Law
D
Journal 513. The same decision was followed by Kerala High
Court in Manmohan Malhotra Vs. PM Abdul Salam & Anr.
reported in 1994 Criminal Law Journal 1555 and Hon'ble
Justice K.T. Thomas, as the Learned Judge there was,
accepted the proposition that the Magistrate has the power under
E Section 245(2) Cr.P.C. to discharge the accused at any
previous stage. The Hon'ble Judge relied on a decision of
Madras High Court in Mohammed Sheriff Vs. Abdul Karim
reported in AIR1928 Madras 129, as also the judgment of
Himachal Pradesh High Court in Gopal Chauhan Vs. Smt.
F Satya reported in 1979 Criminal Law Journal 446. We are
convinced that under Section 245(2) Cr.P.C., the Magistrate can
discharge the accused at any previous stage, i.e., even before
any evidence is recorded under Section 244(1) Cr.P.C. In that
view, the accused could have made the application. It is obvious
G that the application has been rejected by the Magistrate. So far,
there is no difficulty.
21. However, the real difficulty arises in the Trial Court's
proceeding to frame the charge under Section 246 Cr.P.C. It is
obvious that at that stage of framing a charge in this case, no
H
AJOY KUMAR GHOSE V. 535
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]

' material, whatsoever, was available with the Trial Court, A
excepting the complaint, which was also not supported by any
statement on oath, by the complainant or any of his witnesses,
which ordinarily are recorded at the stage of Section 200 Cr. P.C.
In this case, since the complaint was by the Court, no such
statement came to be recorded, of the complainant or any of B
his witnesses present. Here also, the Trial Court has committed
no mistake. Again, the Trial Court has also not made any mistake
in issuing the process, if the Trial Court felt that there was a
ground for proceeding. The real question, which comes,
however, is as to how after rejecting the application made by c
the accused under Section 245(2) Cr.P.C., the Trial Court
straightaway proceeded to frame the charge.
22. The charge is framed under Section 246(1) Cr.P.C.,
which runs as under:-
"246(1) If, when such evidence has been taken, or at any D
previous stage of the case, the Magistrate is of
opinion that there is 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 E
be adequately punished by him, he shall frame
-\ in writing a charge against the accused."
The language of the Section clearly suggests that it is on
the basis of the evidence offered by the complainant at the stage F
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 G
has to consider the same, and if he is convinced, the Magistrate
can frame the charge. 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 H
536 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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
B 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 that the word used in Section 246 Cr.P.C.
is "evidence", so also, in Section 244 Cr.P.C., the word used is
"evidence". Therefore, ordinarily, the scheme of the Section 246
c Cr. P. C. is that, it is only on the basis of any evidence that the
Magistrate has to decide as to whether there is a ground to
presume that the accused has committed an offence triable
under this Chapter.
23. Before we approach this question, we must note that
D while Section 245(2) Cr.P.C. speaks about the discharge of the
accused on the ground that the charge is groundless, Section
246(1) operates in entirely different sphere. An order under
Section 245(2) Cr.P.C. results in discharge of the accused,
whereas, an order under Section 246 Cr.P.C. creates a situation
E for the accused to face a full-fledged trial. Therefore, the two
Sections would have to be interpreted in slightly different manner,
keeping in mind the different spheres, in which they operate.
The words "or at any previous stage of the case" appearing in
Section 246 Cr.P.C. would include Section 245 also, where the
F accused has not been discharged under Section 245 Cr.P.C.,
while the similar term in Section 246(2) can include the stage
even before any evidence is recorded. It cannot, therefore, be
held that the words "at any previous stage of the case" as
appearing in Section 245 Cr.PC., would have to be given the
same meaning when those words appear in Section 246 Cr.P.C.
G
24. The Bombay High Court, in a decision in Sambhaji
Nagu Vs. State of Maharashtra reported in 1979 Criminal Law
Journal 390, has considered the matter. While interpreting the
words "at any previous stage" under Section 246(1) Cr.P.C.,
H the Learned Single Judge in that case, came to the conclusion
AJOY KUMAR GHOSE V. 537
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]

that the phraseology only suggested that the Magistrate can A
' frame charge, even before "all" the evidence is completed under
Section 244 Cr.P.C. Section 244 Cr.P.C. specifically mandates
that as soon as 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 B
prosecution. Further, Section 245 Cr.P.C. also mandates that if
upon taking all the evidence referred to in Section 244 Cr.P.C.,
the Magistrate considers, for reasons to be recorded, that no
case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall c
discharge him. In Section 246 Cr.P.C. also, the phraseology is
"if, when such evidence has been taken", meaning thereby, a
clear reference is made to Section 244 Cr.P.C. The Bombay
High Court came to the conclusion that the phraseology would,
at the most, mean that the Magistrate may prefer to frame a
0
• charge, even before all the evidence is completed. The Bombay
High Court, after considering the phraseology, came to the
conclusion that the typical clause did not permit the Magistrate
to frame a charge, unless there was some evidence on record.
For this, the Learned Single Judge in that matter relied on the
ruling in Abdul Nabi Vs. Gu/am Murlhuza reported in 1968 E
Criminal Law Journal 303. The similar view seems to have been
taken in TK. Appu Nair Vs. Earnest reported in AIR 1967
Madras 262 and in re. M. Srihari Rao reported in AIR 1964
Andhra Pradesh 226. The similar view has been expressed in
P Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in F
1990 Criminal Law Journal 762, where it has been expressed
that previous stage is a stage, after recording some evidence.
It is neither a stage before recording any evidence at all nor a
stage after recording the entire evidence, but is in between.
The interpretation, thus, placed on words "at any previous stage G
of the case", occurring in Section 246(1) Cr.P.C. also appears
to be more in consonance with the order of the Sections
numbered in the Code and also with the heading given to Section
246 Cr. P.C., viz., "Procedure where accused is not discharged".
The very heading of the Section even indicates that it would H
538 SUPREME COURT REPORTS [2009] 4 S.C.R.

A come into play only after the matter is examined in the light of
Section 245 Cr.P.C. and the accused is not discharged
thereunder. Therefore, it is incumbent upon the Magistrate to
examine the matter for purposes of considering the question
whether the accused could be discharged under Section 245
B Cr.P.C. and it is only when he finds it otherwise, he could have
resort to Section 246 Cr.P.C.

25. The Learned Single Judge in this ruling has also noted
another ruling by the same High Court in Abdul Nabi Vs. Gu/am
Murthuza reported in 1968 Criminal Law Journal 303 (cited
c supra). We, therefore, find that consistently, the view taken by
the High Court is that there would have to be some evidence
before the charge is framed. In the last mentioned case of P
UgenderRao & Ors. Vs. J. Sampoorna & Ors. reported in 1990
Criminal Law Journal 762, there is one incorrect observation
D in respect of a decision of this Court in Cricket Association of
Bengal & Ors. Vs. State of West Bengal & Ors. reported in
1971 (3) SCC 239 (cited supra) to the effect that the Magistrate
cannot discharge the accused before recording any evidence,
whatsoever, under Section 244 Cr.P.C. We have not been able
E to find out such an expression in the aforementioned case of
Cricket Association of Bengal & Ors. Vs. State of West Bengal
& Ors. (cited supra). That was a case under old Section 253(2),
which is pari materia to the present Section 245(1 ). On the other
hand, the Court has very specifically stated therein that Section
F 253(2) gives ample jurisdiction to the Magistrate to discharge
the accused in the circumstances mentioned therein and the
order of discharge can be passed at any previous stage of the
case. It is further stated in Para 13 that sub-Section (1) under
those circumstances will not operate as a bar to the exercise of
jurisdiction by the Magistrate under sub-Section (2). Since we
G
have found error in the above mentioned judgment, we have
mentioned so. However, the ruling in Cricket Association of
Bengal & Ors. Vs. State of West Bengal & Ors. (cited supra)
also supports our ~arlier finding that the Magistrate has the
power to discharge the accused, even before any evidence is
H
AJOY KUMAR GHOSE V. 539
STATE OF JHARKHAND & ANR. [V.S.SIRPURKAR, J.]
'"
recorded and thus, an application for discharge at that stage is A
perfectly justifiable. However, insofar as Section 246(1) Cr.P.C.
is concerned, we are of the clear opinion that some evidence
would have tci be there for framing the charge.
26. There is only one judgment of the Andhra Pradesh High
Court in Verendra Vs. Aashraya Makers reported in 1999 8
Criminal Law Journal 4206, which has taken the view that the
Magistrate can frame the charge even without any evidence
• having been taken under Section 244 Cr.P.C. We do not think
that is a correct expression of law, as the rig ht of the accused to
cross-examine the witnesses at the stage of Section 244(1) C
Cr.P.C. would be completely lost, if the view is taken that even
without the evidence, a charge can be framed under Section
246(1) Cr.P.C. The right of cross-examination is a very salutary
right and the accused would have to be given an opportunity to
cross-examine the witnesses, who have been offered at the D
stage of Section 244(1) Cr.P.C. The accused can show, by way
of the cross-examination, that there is no justifiable ground
against him for facing the trial and for that purpose, the
prosecution would have to offer some evidence. While
interpreting this Section, the prejudice likely to be caused to the E
accused in his losing an opportunity to show to the Court that he
is not liable to face the trial on account of there being no evidence
against him, cannot be ignored. Unfortunately, the earlier cases
of the same Court, which we have referred to above, were
brought to the notice of the Learned Judge. Again, the Learned F
Judge has not considered the true impact of the clause "at any
previous stage of the case", which could only mean that even
with a single witness, the Magistrate could proceed to frame
the charge.
27. Now, coming to the facts of this case, it is clearthatthe G
opportunity to the accused to cross-examine the witnesses is
lost, as the Trial Court has straightaway proceeded to frame
the charge. In that view, we would have to quash the order,
framing the charge. It is accordingly, quashed. The matter will
now go back before the Trial Court, where the prosecution may H
540 SUPREME COURT REPORTS [2009) 4 S.C.R.

A offer the witnesses under Section 244(1) Cr.P.C. and the
opportunity to cross-examine, would be offered to the accused.
It is only thereafter, that the Trial Court would proceed to decide
as to whether the charge is to be framed or not. The charge
framed in this case is clearly premature. in view of the reasons
B given by us. The order framing the charge would, therefore, have
to be set aside.
28. We are not expressing anything on merits, particularly
because we have directed the evidence of the prosecution to •
be led. under Section 244(1) Cr.P.C. Any expressions on our
c part are likely to cause prejudice to the prosecution, as the case
may be, accused. We are, therefore, leaving the matter at this.
29. Accordingly, the appeal is disposed of with the
direction that the matter shall now go back to the Trial Court and
the Trial Court shall proceed to examine all the witnesses offered
D
by the prosecution and it is only after the evidence of those
witnesses is recorded, that the Trial Court would proceed to
decide as to whether the charge is to be framed or not. The
appeal, thus, succeeds partly. ·

G.N. Appeal disposed of.