(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)
Pre charge evidences are the evidences which are adduced by the prosecution under Section 244 of the Code of Criminal Procedure, 1973 which enables the magistrate to frame the charges against the accused person. In the cases which are instituted otherwise than on a police report, a preliminary enquiry becomes inevitable as it also helps the accused person to prepare the defence after the framing of the charges. Section 244 of the Code of Criminal Procedure, 1973 is found in Chapter 19 of the Code which deals with trial of warrant-cases by magistrates.
Section 244 of the Code of Criminal Procedure states as follows:
Section 244: Evidence for Prosecution
- When, in any warrant case instituted otherwise than on a police report, 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.
- The magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing.
Section 244 obligates a magistrate to hear the case of the prosecution and also to examine the evidences which has been produced by the prosecution to support the case. Such evidences are to be taken when the accused person appears before the Magistrate or is brought before him.
Hear The Prosecution
It is a settled position of law that while taking the pre charge evidence, only the evidences which are presented by the prosecution are to be examined. Section 244 does not provide for the examination of the statement of the prosecution. This position of law was specifically settled by the Hon’ble Jammu and Kashmir High Court in the case of Prithvi Nath vs. RC Kaul whereby it was held that the Court has to provide the right to audience to the prosecution regarding the nature and character of the evidences that he wishes to produce.
In order to discern about the scope of the word ‘hear’ in section 244, the Hon’ble Court made a comparison between Section 200 and Section 252 of the Code of Criminal Procedure. Whereas section 200 provides for the examination of the complainant and the witnesses present, Section 252 of the Code provided for providing an opportunity to be heard to the complainant and taking of evidence as he may produce. It was held by the Court that the legislature is fully aware of the words it uses. If the statement of the complainant were also to be recorded, the legislature would have used the words ‘examine the complainant and the witnesses’ as used under Section 200. Since what has been written in Section 244 is only ‘hear’ the prosecution, therefore, basing the reasoning on Section 252 of the old Code as mentioned above, the statement of the prosecution is not to be recorded. The mere non recording of the statement of the prosecution will not make the trial irregular.
It is incumbent upon the magistrate to take into account all the evidence that has been produced by the prosecution under Section 244 of the Code. Any order passed by the magistrate without examining the witness would be illegal and bad in law
Order Of Producing the Witnesses
It is a trite law that the order in which the witnesses are to be deposed by the prosecution depends upon the will of the prosecution and the court cannot interfere with the same. The burden of proof to prove the case beyond reasonable doubt is upon the prosecution in criminal cases. Therefore, it is in the interest of the justice if the ways and means of proving the case is left upon the desire of the prosecution. It is apprehended that if the court determines the order in which the witnesses are to be produced, it may lead to grave miscarriage of justice.
Moreover, section 244 of the Code of Criminal Procedure, 1973 clearly provides that the magistrate shall take all such evidence ‘as may be produced’ by the prosecution. The words ‘as may be produced’ clearly states that it is the prosecution who has to determine the order in which the evidences are to be deposed before the magistrate. However, the court has the power to interfere under Section 540 if it is of the opinion that any material evidence has not been produced before the court.
Supplementary List Of Witnesses
Another moot question which arises in respect on Pre Charge evidence is that when the witnesses have been examined under Section 244, can the Magistrate entertain further list of witnesses furnished by the complainant? The answer to this question have been provided by the Hon’ble Supreme Court of India in the case of Sayeeda Farhana Shamim vs. State of Bihar and another wherein it was held by the Hon’ble Court that it depends upon the discretion of the magistrate. The magistrate can summon the additional witnesses if it advances the cause of justice.
However this discretion is to be exercised by the Magistrate with great caution and must not be used for the purpose of harassing the accused person. The magistrate has to be wary of the tactics which may be employed by the prosecution in order to prolong the case in order to compensate for his failure to substantiate his cause.
Pre charge evidence is the evidence which is taken by the Magistrate from the complainant before the framing of charges under Section 244 of the Code of Criminal Procedure, 1973. Proper examination of all the evidence and witnesses is to be done by the magistrate. Any lapse on the part of the magistrate to take into account the evidences as produced by the prosecution may result in the miscarriage of justice.
 Charanjit vs. State of Maharashtra., 1971 Maha LJ 311.
 Prithvi Nath vs. RC Kaul., 1975 Cri LJ 216.
 Ibid para 6.
 Yashodabai vs. B.M. Kamat., [1973 Cri LJ 1007].
 Prithvi Nath vs. RC Kaul., 1975 Cri LJ 216.
 Darya Singh vs. State of Punjab., AIR 1965 SC 328.
 Sayeeda Farhana Shamim vs. State of Bihar and another., [(2008) 8 SCC 218].
 Jamuna Rani vs. S. Krishna Kumar., 1993 Cri LJ 32.