- (1.) THIS is a reference made by the Sessions Judge, Bhilwara, with a recommendation that the charges framed against all the ten accused petitioners Sohan, Rameshwar, Shanker, Dhanna, Ram Chander, Ghisa, Jagan Nath, Madan Lal, Gopi and Basanti son of Jadab Chand by the First Class Magistrate, Jahajpur, vide his order dated 29th May, 1973, may be quashed and the learned Judicial Magistrate may be directed to record the evidence of the complainant's witnesses afresh and then to proceed in accordance with law.
(2.) THE reference arises under the following circumstances: - Jagroop and his son Shanker filed a complaint against the ten accused-petitioners and one Mat. Basanti daughter of Ram Chander under sections 452, 148, 324, 323 and 500 I. P. C. in the court of the Sub-Divisional Magistrate Mandal-garh, on 11th September, 1966. THE Sub-Divisional Magistrate upon receiving the complaint examined Jagroop complainant on oath and made a preliminary inquiry into the matter under section 202, old Cr. P. C. with a view to ascertaining the truth or falsehood of the allegations made in the complaint. THE complainant examined Ladu Ram, Khurshid Mohammad and Bhagirath in the inquiry. Relying upon the statements of the complainant and his witnesses, the Sub-Divisional Magistrate came to a conclusion that there was sufficient ground for proceeding against seven accused only namely, Sohan, Rameshwar, Shanker, Dhanna, Ram-Chander, Ghisha and Jagan Nath under sec. 323, I. P. C. So he issued processes against the aforesaid seven accused for the offence punishable under section 323 I. P. C. THE Sub-Divisional Magistrate, however, did not pass any order regard-ing the remaining accused, namely, Madan Lal, Gopi and Basanti son of Jadab Chand. Neither it was ordered that the complaint be dismissed against the aforesaid four accused, not was it directed that processes be issued against them also under section 323, I. P. C. THE Sub Divisional Magistrate, Mandalgarh, recorded the evidence of some of the complainant's witnesses in the presence of the seven accused. THEreafter the case was transferred from his court to the the court of the First Glass Magistrate, Jahajpur, for trial before whom the complainant filed an application on 28th July, 1972 that a prima facie case was disclosed against four accused, namely Madanlal, Gopi, Basanti son of Jadab Chand and Mst. Basanti d/o Ram Chander also from his evidence and that of his witnesses and so charges may be framed against all the eleven accused persons. THE First Glass Magistrate, Jahajpur, accepted the application filed by the complainant and issued processes against Madan Lal, Gopi and Basanti son of Jadab Chand vide his order dated 29th January, 1973. Later on, when the aforesaid accused appeared before him in response to the summonses issued to them, the learned Magistrate perused the evidence adduced by the complainant in their absence and came to a conclusion that there were good grounds for presuming that all the accused had committed offences which he was competent to try and which in his opinion could be adequately punished by him He, therefore, framed charges against Sohan Lal, Rameshwar, Gopi, Shanker, Ghisha, Jagan Nath Ramchander and Basanti son of Jadabchand under secs. 147, 148, 452, 323/149 I. P. C. Dhanna accused was charge sheeted for the offence under secs 147, 148, and 323/149 IPC while charges under secs. 148, 324 and 452 I. P. C. were framed against Madanlal accused. As no primafacie case was made out against Smt. Basanti accused, the learned Magistrate passed an order of discharge in her favour. Aggrieved by the framing of the charges, all the ten accused persons filed a revision petition in the court of the Sessions Judge, Bhilwara. THE Sessions Judge perused the record, heard the parties and came to a conclusion that the learned Magistrate committed a glaring error in framing the charges against Madanlal, Gopi and Basanti son of Jadab Chand on the basis of the complainant and his witnesses which was not recorded in their presence. THE learned Sessions Judge, therefore, considered it to be a fit case for making a reference to this court for quashing the charges framed not only against these three accused but against other accused persons also. I have heard Mr. Jaswant Mal Bhandari, learned counsel for the accused petitioners and Mr. K. C. Bhandari, Public Prosecutor, for the State No body appeared on behalf of Jagroop complainant, although notice of this reference was served upon him. From a bare reading of the order passed by the learned Magistrate on 29th May, 1973, it appears that before framing charges against Madanlal, Gopi and Basanti son of Jadab Chand the learned Magistrate did not take the evidence for the prosecution in the presence of the aforesaid accused persons. S. 252 (1) Cr. P. C. (old) clearly lays down that in warrant cases instituted, otherwise, than on a police report the Magistrate is bound to hear the complainant, if any, and record all such evidence as may be produced in support of the prosecution case in the presence of the accused. Sub sec. (2) of sec. 252, (old) Cr. P. C. further enjoins upon the Magistrate to find out from the complainant or other wise the names of any persons who are likely to be familiar with the facts of the case and able to appear in the witness box from the side of the prosecution to give evidence and to summon such of them as he thinks necessary. Then follows sec. 253, (old) Cr. P. C. which contemplates an order discharging the accused, under sub sec. (1) of S. 253, Cr. P. C. a Magistrats is empowered to discharge an accused when upon considering the evidence led by the prosecution he is of the view that no prime facis case has been made out against the accused. Sub section (2) of sec. 253, (old) Cr. P. C. further empowers the Magistrate to discharge the accused at any previous stage of the case, if, for reasons, to be recorded by him he comes to a conclusion that the charge is groundless. Next comes sec. 254, (old) Cr. P. C. which reads as follows: - "254. Charge to be framed when offence appears proved - If, when such evidence and examination have been taken and made, 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. " Sec. 254, Cr. P. C. com templates that in warrant cases instituted otherwise than on police report some evidence for the prosecution should be taken by the Magistrate before framing a charge. The Magistrate ofcourse is not bound to record the whole of the evidence for the prosecution before framing a charge. He is free to frame a charge even before all the prosecution evidence has been taken. He can frame charge against the accused even after recording the evidence of one witness of the persecution, provided he is satisfied that a prima facie case has been made out against the accused, but, in my opinion, sec. 254 Old Cr. P. C. does not empower a Magistrate to frame a charge against an accused on the basis of the prosecution evidence recorded in his absence. In the instant case, the evidence of the complainant and his witnesses was not recorded in the presence of Madan Lal, Gopi and Basanti son of Jadab Chand accused because these accused persons were for the first time summoned to appear in the court of the Magistrate on 21st February, 1973. The evidence for the prosecution had already been recorded in this case prior to 29th January, 1973 when the aforesaid accused persons were ordered to put in their appearance. Hence, the glaring error com-mitted by the Magistrate First Glass in framing charges against Madanlal, Gopi and Basanti son of Jadab Chand on the basis of the evidence for the pro-secution which is not recorded in their presence is apparent on the face of the record. The reference is, therefore, accepted to the extent that the charges framed against Madanlal, Gopi, and Basanti son of Jadab Chand are quashed and the case is sent back to the Munsif and Judl. Magistrate, Mandalgarh, with with a direction to hear the complainant and take all such evidence as may be produced by him in the presence of the accused Madanlal, Gopi and Basanti son of Jadab chand and then to consider whether or not there is ground for assuming that any of the aforesaid three accused has committed an offence which the Judicial Magistrate is competent to try, and, then upon such consideration to proceed in accordance with law. It is not necessary to quash charges framed against the other accused persons, namely, Sohan, Rameshwar, Shankar, Dhanna, Ramchander, Ghisha and Jagannath. Hence the charges framed against them shall remain intact. .;