Legal Provisions of Section 246 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Procedure where accused is not discharged:
The section empowers the Magistrate to frame charge after the evidence for the prosecution under Section 244 is over or even at any previous stage, if he forms an opinion that a prima facie case is made out against the accused. Thus he may frame a charge against the accused even after examination of only one witness if he forms an opinion that a prima facie case is made out, without further taking the remaining evidence.
ADVERTISEMENTS:
The Supreme Court in Ajoy Kumar Ghose v. State of Jharkhand, held that where an application for discharge filed by the accused under Section 245 (2), was rejected by the trial Court, the Court could not straightway proceed to frame charge under Section 246 (1) even without any evidence having been taken under Section 244.
The reason being that the right of the accused to cross-examine the witnesses at the stage of Section 244 (1), Cr. P. C would be completely lost, if the view is taken that even without the evidence, a charge can be framed under Section 246 (1) of Cr. P. C. It is only on the basis of evidence that the Magistrate has to decide whether there is a ground to presume that the accused has committed an offence triable. Section 245 (2) speaks about discharge of the accused on the ground that the charge is baseless. Thus Section 246 (1) creates a situation for the accused to face full-fledged trial.
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Sub-section (3) provides that the Magistrate may convict the accused on a pica of guilty only if the ingredients of the offence are made out. But if the facts alleged do not constitute an offence, the plea of guilt cannot be made on the basis for conviction of the accused.
ADVERTISEMENTS:
Where the accused desires to cross-examine the prosecution witnesses, it is the duty of the Magistrate to recall the witnesses for such cross-examination and he cannot deny this right of the accused on the ground that the accused had already cross-examined the prosecution witnesses before the charge had been framed against him.
Sub-section (6) enables the prosecution to examine witnesses, who have not been examined, or whose names have not been disclosed, before the charge is framed. If the accused wants time to examine such witnesses whose names were not disclosed before the charge was framed, the Magistrate may grant time to the accused for this purpose. If the Magistrate fails to discharge his duty to secure the presence of witnesses for further cross- examination by the accused as required by sub-section (4) he commits a gross irregularity and an order of acquittal passed in such case is liable to be quashed.