Scope Of Consideration Of Material In Warrant Cases By Magistrate While Framing Of Charge In Complaint Case

In complaint cases, a complainant files a complaint along with relevant material/ documents to support his case. After consideration of the complaint and the material filed along with the complaint and examination of the complainant and other witnesses on oath, a Magistrate issues summons to the accused if the Magistrate is of prima-facie view that an offence has been committed.  If the complaint is filed by the public servant in discharge of his duties, a Magistrate can exempt the examination of complainant before issuance of summons.

When an accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. This stage is called pre-charge evidence.

In pre-charge evidence, the complainant/ witness records his statement and tender the documents filed with the complaint as evidence. The documents which are produced as per the provisions of the Evidence Act, 1872/ the Bharatiya Sakshya Adhiniyam, 2023 are exhibited and become part of the record. However, there are certain documents which are not produced as per the provisions of the Evidence Act, 1872/ the Bharatiya Sakshya Adhiniyam, 2023 and are objected by the counsel of the accused.

The question herein is whether the documents which are filed with the complaint, however, not produced/ tendered as per the provisions of the Evidence Act, 1872/ Bharatiya Sakshya Adhiniyam, 2023 can be considered by the Magistrate at the time of framing of charge in warrant cases instituted otherwise than on a police report.

Section 246 of Code of Criminal Procedure Code, 1973 (“Cr.P.C.”)/ Section 269 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNNS”) deals with the framing of charge in cases instituted otherwise than on police report.

The relevant extract of the Section is reproduced herein below:

Procedure where accused is not discharged.—(1) If, when such evidence has been taken, or at any 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 be adequately punished by him, he shall frame in writing a charge against the accused…………..

The word “Evidence” is only used in Sections 244 to 246 of the Cr.P.C. / Sections 267 to 269 of BNNS and not used under Section 228 of the Cr.P.C. / Section 251 of BNNS, i.e., Framing of charge (Trial before a Court of Session) and Section 240 of the Cr.P.C. / Section 263 of BNNS, i.e., Framing of charge (Trial of warrant cases by Magistrate instituted on a police report).

As per Section 244 of the Cr.P.C./ 267 of BNNS, when the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. If, upon taking all the evidence, 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 (Section 245 of the Cr.P.C./ 268 of BNNS).

Section 228 of the Cr.P.C. / Section 251 of BNNS

The relevant extract of the Section is reproduced herein below:

Framing of charge.  (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which………

Section 240 of the Cr.P.C. / Section 263 of BNNS

The relevant extract of the Section is reproduced herein below:

Framing of charge.—(1) If, upon such consideration, examination, if any, and hearing, 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 be adequately punished by him, he shall frame in writing a charge against the accused.

In both the above sections for framing of charge, there is no reference to the word “evidence” and the Court, inter alia, after consideration of the material on record, if is of opinion that there is ground for presuming that the accused has committed an offence, can frame charge. Whereas, the word used in Sections 244 to 246 of Cr.P.C/ Sections 267 to 267 of BNNS is evidence.

This clearly implies that while framing of charge under Section 246 of the Cr.P.C./ 269 of BNNS, the Magistrate is required to consider evidence and not all documents filed with the complaint. The documents which are proved as per the provisions of the Evidence Act 1872/ Bharatiya Sakshya Adhiniyam, 2023, will qualify as evidence and should only be considered at the time of framing of charge.

In the case of Sunil Mehta and Ors. Vs. State of Gujarat and Ors., MANU/SC/0173/2013, the Hon’ble Supreme Court while discussing the scope of evidence under Sections 244 to 246 of the Cr.P.C. held as under:

“15. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Code of Criminal Procedure is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.

16. Suffice it to say that evidence referred to in Sections 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 with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned.”

In view of the above, the Magistrate only on the basis of evidence should form opinion regarding the ground for presuming that the accused has committed an offence and the term evidence only includes those documents filed with by the prosecution which are proved in the manner recognised and provided for under the Evidence Act 1872/ Bharatiya Sakshya Adhiniyam, 2023.

Accordingly, it can be concluded if the documents are not proved as per the provisions of the Evidence Act 1872/ Bharatiya Sakshya Adhiniyam, 2023, the same cannot be considered as evidence under Sections 244 to 246 of the Cr.P.C./ Sections 267 to 267 of BNNS and therefore, cannot be relied upon at the time of consideration of charge by Magistrate.