In CRM-A-978-MA-2015-PUNJ HC- If accused does not avail benefit of Sec. 246(4) CrPC to test veracity of pre-charge evidence, then such waiver or abandonment cannot serve complainant in any manner as complainant has to adduce post charge evidence to support charges framed against accused: P&H HC
Justices Sureshwar Thakur & N.S. Shekhawat [30-09-2022]

 

Read Order: HARJINDER SINGH V. KARNAIL SINGH AND OTHERS

Monika Rahar

Chandigarh, October 26, 2022:  While dealing with a petition challenging the order of acquittal by the Trial Court in a complaint case, the High Court of Punjab and Haryana has held that if the accused does not plead guilty to the charges framed against him, he may choose to test the veracity of the pre-charge adduced evidence by availing the benefit of Sub-Section 4 of Section 246 of the CrPC. However, once this benefit is waived or abandoned, the complainant cannot draw any benefit from such waiver or abandonment and has to adduce post charge evidence to support the charges framed against the accused. 

The Bench of Justices Sureshwar Thakur and N.S. Shekhawat held, “The preliminary evidence becomes the foundation, only for the drawings of charge(s),.. [not for] either any verdict of acquittal or a conviction… unless the veracity of the pre-charge evidence is tested through cross-examinations. If the pre-charge evidence remains untested through cross-examinations, despite the relevant opportunity hence at the post charge stage, being granted to the complainant, … Court concerned, may after closing the apposite granted opportunity to the complainant to adduce post charge evidence, may proceed to draw a verdict of acquittal in respect of the complaint”. 

The complainant filed a private complaint alleging the commission of offences under Sections 324, 326, 34 of IPC. It was the complainant’s grouse that the accused caused injuries of his (complainant’s) person with kirpan and datar blows. The motive behind these injuries was stated to be the pendency of a case, between the parties, with regard to their ancestral property.

It was also stated by the complainant that based on his statement recorded before the police, an F.I.R under Section 324/34 IPC was registered (Section 326 IPC was added). However, the complainant added that the police did not take any action against the accused persons despite their repeated visits to the Police Station. After considering the preliminary evidence, all the accused were ordered to be summoned to face trial for offences under Sections 324/326 read with section 34 of the IPC.

After hearing both the parties a prima facie case was made out against the accused under Sections 326/324/34 IPC. Accordingly charges were framed against the accused, to which they did not plead guilty and claimed trial. Thereafter the case was fixed for adduction of post charge(s) evidence by the complainant. 

The Magistrate, upon considering the fact that subsequent to the framing of charge(s) against the accused and despite an opportunity being granted to the complainant to adduce evidence, no evidence was adduced by the complainant, therefore, he proceeded to close the complainant's evidence. The Magistrate in the operative portion of his impugned verdict also proceeded to make an order of acquittal. 

Hence, impugning the verdict of acquittal, the present Court was approached. 

It was the case of the complainant’s counsel that since the offences in the complaint were both cognizable as well as non-bailable offences, thus, the same were to be tried as a warrants case. He further submitted that since the accused did not plead guilty to the charges, thus, the mandate of sub-Section 4 of Section 246 of the Cr.P.C., was attracted. Resultantly, he submitted that the accused were required to state, on the date subsequent to the drawing of charges against them, whether they wished to cross-examine any of the witnesses who, at the pre-charge stage, recorded their testifications before the trial Magistrate, which led to the framing of charges against them. 

Consequently, he submitted that since the above statutory obligation was complied with, the impugned order of acquittal was not sustainable. 

After hearing the parties and looking into the provisions of Section 246 Cr.P.C., the Court observed that the purpose of sub-Section 4 of Section 246 of Cr.P.C. is to ensure a speedy trial of the complaint case and that the statutory privilege contained in this section is reserved exclusively qua the accused.

Resultantly, for want of deriving by the accused of the benefits of sub-Section 4 of Section 246 of Cr.P.C., the complainant cannot draw any leverage, the Court observed while holding that if the benefit is not availed by the accused, the complainant is not relieved to adduce evidence in support of the charges as became drawn against the accused. 

“Thus, when the above statutory privilege became not availed, resultantly it is deemed to have been waived or abandoned by the accused. The reason being that the pre-charge adduced preliminary evidence, became the foundation for the framing of charges against the accused, but did not become the foundation for the drawings of any valid verdict of conviction against the accused, in respect of such drawn charges, as become anchored upon preliminary evidence”, the Court held. 

Summarizing the above stated, the Bench observed that the pre-charge evidence becomes the foundation for the drawing of charges and thus, if the accused does not plead guilty to the charge(s) which are drawn against him/them and claims trial, thereupon the accused may choose to test the veracity of the pre-charge adduced evidence, through his availing the benefit of sub-Section 4 of Section 246 of the Cr.P.C.

However, the Division Bench added that the above statutory privilege is conferred only upon the accused and in case it is waived or abandoned, the complainant cannot draw any benefit from such waiver or abandonment. Contrarily, the complainant is required to aduce post charge evidence to support the charge(s) drawn against the accused, the Court added. 

Further, the Court held that the preliminary evidence becomes the foundation, only for the drawings of charge(s), but does not become foundation for either any verdict of acquittal or a conviction being made, unless the veracity of the pre-charge evidence is tested through cross-examinations. 

“If the pre-charge evidence remains untested through cross-examinations, despite the relevant opportunity hence at the post charge stage, being granted to the complainant, by the learned Court concerned. Resultantly the learned Court concerned, may after closing the apposite granted opportunity to the complainant to adduce post charge evidence, may proceed to draw a verdict of acquittal in respect of the complaint”, the Bench held. 

 Therefore, the present petition was dismissed and the verdict of acquittal was upheld.