LexSUNIL MEHTA & ANR. versus STATE OF GUJARAT & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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SUNIL MEHTA & ANR.
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No. 327 of 2013)
FEBRUARY 20, 2013
[T.S. THAKUR AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
ss. 244 and 246 – Evidence for purposes of framing of
charge in a complaint case – Plea of complainant that
evidence adduced under Chapter XV be treated as evidence
for purposes of framing of charge – Held: Is untenable – In a
criminal case, using a statement of a witness at the trial,
without affording to accused an opportunity to cross-examine,
is tantamount to condemning him unheard – The process
under Chapter XV is conducted in the absence of accused,
whereas evidence within the meaning of Evidence Act and
so also within the meaning of s.244, Cr.P.C. is what is
recorded in the manner stipulated u/s 138 of Evidence Act –
The whole object underlying recording of evidence u/s 244
after accused has appeared, is to ensure that not only does
the accused have opportunity to hear the evidence adduced
against him, but also to defend himself by cross-examining
the witnesses – Evidence Act, 1872 – ss. 3 and 138.
In the instant appeal filed by the accused, the
question for consideration before the Court was: whether
depositions of the complainant and his witnesses
recorded under Chapter XV of the Code of Criminal
Procedure, 1973 before cognizance was taken by the
Magistrate would constitute evidence for the Magistrate
to frame charges against the accused under Part B of
Chapter XIX of the Code.
[2013] 2 S.C.R. 56
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SUNIL MEHTA & ANR. v. STATE OF GUJARAT &
ANR.
Allowing the appeal, the Court
HELD: 1.1. In a criminal case, using a statement of a
witness at the trial, without affording to the accused an
opportunity to cross-examine, is tantamount to
condemning him unheard. Life and liberty of an
individual recognised as the most valuable rights cannot
be jeopardised leave alone taken away without
conceding to the accused the right to question those
deposing against him from the witness box. [para 17] [69-
D-E]
1.2. The schemes of Chapters XV and XIX of the
Code are totally different from each other. While Chapter
XV deals with the filing of complaints, examination of the
complainant and the witnesses and taking of cognizance
on the basis thereof with or without investigation and
inquiry, Chapter XIX, Part B deals with trial of warrant
cases instituted otherwise than on a police report. The
trial of an accused under Chapter XIX and the evidence
relevant to the same has no nexus proximate or
otherwise with the evidence adduced at the initial stage
where the Magistrate records depositions and examines
the evidence for purposes of deciding whether a case for
proceeding further has been made out. There is a
qualitative difference between the approach that the
court adopts and the evidence adduced at the stage of
taking cognizance and summoning the accused and that
recorded at the trial. The difference lies in the fact that
while the former is a process that is conducted in the
absence of the accused, the latter is undertaken in his
presence with an opportunity to him to cross-examine the
witnesses produced by the prosecution. [para 12] [65-G-
H; 66-A-D]
1.3. The expression “Magistrate shall proceed to hear
the prosecution and take all such evidence as may be
produced in support of the prosecution” appearing in
SUPREME COURT REPORTS [2013] 2 S.C.R.
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s.244 refers to evidence within the meaning of s.3 of the
Indian Evidence Act, 1872. Chapter X of the Evidence Act
deals with examination of witnesses and s 137 appearing
in that Chapter defines the expressions examination-in-
chief, cross and re-examination while s. 138 stipulates the
order of examinations.It is trite that evidence within the
meaning of the Evidence Act and so also within the
meaning of s.244 of the Cr.P.C. is what is recorded in the
manner stipulated u/s 138 in the case of oral evidence.
[para 13-15] [67-A-B, F-G; 68-D]
1.4. Under s.246, Cr.P.C., the Magistrate is required
to frame in writing a charge against the accused “when
such evidence has been taken” and there is ground for
presuming that the accused has committed an offence
which such Magistrate is competent to try and
adequately punish. Evidence referred to in ss. 244, 245
and 246 must, on a plain reading of the said provisions
and the provisions of the Evidence Act, be admissible
only if the same is produced and, in the case of
documents, proved in accordance wExcerpt shown. Read the full judgment & AI analysis in Lexace.