246 CrPC | Accused Failure To Cross-Examine Pre-Charge Prosecution Witnesses Does Not Relieve Complainant From Adducing Post-Charge Evidence: P&H High Court

The Petitioner-complainant argued that it did not lead further evidence because as per Section 246(4), the accused were required to state, on the date subsequent to the drawing of charges against them, whether they wish to cross-examine, any of the witnesses who have at the pre-charge stage recorded their testifications. However, the Magistrate ignored the above provision and required the complainant to adduce further evidence and when the latter did not comply, an order of acquittal was passed.

The High Court held that the effect of non-compliance to the mandate of Section 246(4) of CrPC does not have any fatal consequence upon the impugned verdict of acquittal.

It said that when at the post charge stage, no express wish was conveyed by the accused to the Magistrate concerned to re-call the preliminary evidence for cross-examinations, resultantly it is deemed that the accused waived or abandoned such privilege.

However, the Court added that the non-availment of Section 246(4) by the accused does not relieve the complainant to adduce evidence in support of the charges. It was of the view that if the complainant had led evidence to support the charges, then only an opportunity would have arisen qua the accused to cross-examine the post charge adduced evidence. Since the complainant did not adduce the post charge evidence, thus he obviously also forbade the accused to impeach the credit of the witnesses who but never stepped into the witness box, after the framing of charges, Court said.

"The want of adduction of evidence by the complainant, and that too post, the drawing of charges against the accused, does work adversely qua the complainant, and, not against the accused." 

Thus finding no merit in the petition, the court dismissed the same.

Summarization Of Principles

I. Pre-charge evidence becomes the foundation for the drawing of charge(s). If the accused does not plead guilty and claims trial, he may choose to test the veracity of the pre-charge adduced evidence, through sub-Section 4 of Section 246 of the Cr.P.C.

II. However, 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 and is yet required to adduce post charge evidence to support the charge(s) against the accused.

III. The preliminary evidence becomes the foundation, only for the drawings of charge(s), but not for 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, the learned Court concerned, may after providing opportunity to the complainant to adduce post charge evidence, may proceed acquittal in respect of the complaint.

Case Title: HARJINDER SINGH Versus KARNAIL SINGH AND OTHERS

Citation: 2022 LiveLaw (PH) 274 

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