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TMI Blog2009 (3) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 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 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 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 awarded the punishment of compulsory retireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied 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 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure (hereinafter referred to as "Cr.P.C." for short) The 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 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. 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 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 B.B. Dhar and Shri K. Paul. However, the Court direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to have been committed in respect of that letter. The 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 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. 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 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 warrant case on the basis of a police report and that instituted 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.P.C., 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 himself that he has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge 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 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 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. 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 would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the 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 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 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 such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely 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 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 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 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.P.C. at any previous stage, i.e., before the evidence is recorded under Section 244(1) Cr.P.C., which seems to be the established law, particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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 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. 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 pronouncem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. Gulam Murthuza reported in 1968 Criminal Law Journal 303. The similar view seems to have been taken in T.K. 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. Samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-Section (2). Since we 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 earlier finding that the Magistrate has the power to discharge the accused, even before any evidence is recorded and thus, an application for discharge at that stage is perfectly justifiable. However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the clear opinion that some evidence would have to 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 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 right of the accused to cross-examine the witnesses at the stage of Section 244(1) Cr.P.C. would be completely lost, if the view is taken that even without the evidence, a charge can be frame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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