Legal provisions regarding procedure where accused is not discharged under section 246 of the Code of Criminal Procedure, 1973.
Framing of charge:
Section 246(1) of the Code of Criminal Procedure provides that if, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable, 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. For framing a charge the evidence already led must be of such a nature that if it remains unrebutted by the defence, the accused may be convicted on it.
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ADVERTISEMENTS:
Explaining the charge and the plea of the accused:
According to Section 246(2) of the Code, the charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty or has any defence to make.
As per Section 246(3) of the Code, if the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
ADVERTISEMENTS:
Choice of accused to recall prosecution witnesses:
Section 246(4) of the Code of Criminal Procedure provides that if the accused refuses to plead or does not plead, or claims to be tried or if the accused is not convicted by the Magistrate on the accused pleading guilty, the Magistrate shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. According to sub-section (5) of Section 246 of the Code, if he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
The expression used as “the evidence of any remaining witness for the prosecution shall next be taken” in Section 246(6) should be given wide interpretation. Therefore, the Magistrate has discretion, before he closes the trial, to summon the witnesses if it advances the cause of justice. The discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6), Cr. PC. should be used in appropriate cases for reason to be recorded.
The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case.
ADVERTISEMENTS:
This should be checked but in case it is found that in fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may exercise such power in appropriate case.
Evidence of remaining witnesses:
As per Section 246(6) of the Code, the evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.