(Prayer: This Crl.RP is filed under Section 397 r/w 401 of Cr.PC (filed u/S 438 r/w 442 BNSS) praying to set aside the impugned order dated 16.07.2025 closing the stage of evidence before charge sheet for the offences punishable under Sections 406, 420, 504 and 506 of IPC, on the file of Court of Prl. Civil Judge and JMFC at Udupi in Cc No.1903/2024 and to consequently, discharge the accused for the offences punishable under Sections 406, 420, 504 and 506 of IPC, on the file of Court of Prl. Civil Judge and JMFC At Udupi in CC No.1903/2024.)

Oral Order

1. This matter is listed for admission. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

2. This revision petition is filed challenging the order passed by the Trial Court in proceeding to frame the charge without recording the evidence before charge.

3. The learned counsel for the revision petitioner would submit that the case is arising out of a private complaint filed by the respondent/complainant and the Trial Court ought to have recorded the evidence and proceeded to frame the charge and the same is not done and hence it requires interference of this Court. The learned counsel in support of his arguments relies upon the judgment of this Court in the case of RAJANNA v. CHAYAPATHI reported in ILR 1988 KAR 198, wherein this Court held that if the complainant does not choose to lead any evidence after appearance of the accused, it is clear case for discharge. Sworn statement of the complainant before issue of process not evidence within meaning of Sections 244, 245 and 246 of Cr.P.C. The learned counsel also brought to the notice of this Court the discussions made in paragraph Nos.3, 4, 8, 10 and 12.

4. The learned counsel also relied upon the judgment of the Madhya Pradesh High Court in the case of MEDHODIST CHURCH, BALAGHAT v. R.W. JOSEPH reported in 1991 0 Supreme (MP) 704 and brought to the notice of this Court, paragraph No.4, wherein it is observed that the cases were adjourned for evidence before charge on a number of occasions spread over a period of 1 year and 5 months. The result was that no evidence before charge could be recorded under Section 244 of Cr.P.C. As such, the learned Magistrate could see no other way except to discharge the accused persons.

5. The learned counsel also relied upon the judgment of Kerala High Court in the case of PREETHA G. v. RAVEENDRA PANIKER passed in Crl.R.P.No.778/2021, decided on 26.11.2024 and brought to the notice of this Court paragraph Nos.6 and 7, wherein discussion was made with regard to Sections 244, 245 and 246 of Cr.P.C. Referring these judgments, the learned counsel would contend that the accused is liable to be discharged.

6. Per contra, the learned counsel for the respondent submits that the same is a curable defect. Even if proceeded to frame the charge without recording evidence before charge, the order can be set aside and matter can be referred back to the Trial Court to record the evidence before charge and proceed in accordance with law. The learned counsel in support of her arguments relies upon the judgment of the Apex Court in the case of AJOY KUMAR GHOSE v. STATE OF JHARKHAND AND ANOTHER reported in (2009) 14 SCC 115 and brought to the notice of this Court paragraph No.55, wherein the Apex Court allowed the appeal, set aside the order and gave the direction that the matter shall now go back to the Trial Court and the Trial Court shall proceed to examine all the witnesses offered by the prosecution and it is only after the evidence of those witnesses is recorded that the Trial Court would proceed to decide as to whether the charge is to be framed or not.

7. The learned counsel also relied upon the judgment of the Apex Court in the case of SUNIL MEHTA AND ANOTHER v. STATE OF GUJARAT AND ANTOHER reported in (2013) 9 SCC 209 and brought to the notice of this Court paragraph No.24, wherein an observation is made that in the light of what we have said above, we have no hesitation in holding that the High Court fell in palpable error in interfering with the order passed by the Revisional Court of Sessions Judge, Gandhi Nagar. The High Court was particularly in error in holding that the appellant had an opportunity to cross- examine the witnesses or that he had not availed of the said opportunity when the witnesses were examined at the stage of proceedings under Chapter XV of the Code. The High Court, it is obvious, has failed to approach the issue from the correct perspective while passing the impugned order and in paragraph No.25, allowed the appeal with costs and restored the order passed by the Sessions Judge.

8. The learned counsel also relied upon the judgment of Allahabad High Court in the case of MOHIT KUMAR KANKAR v. STATE OF U.P. reported in LAWS (ALL)-2014- 12-72, wherein the judgments of the Apex Court in the cases of Ajoy Kumar Ghose (supra) and Sunil Mehta (supra) was also referred and remitted the matter back to the Trial Court to record the evidence.

9. The learned counsel also relied upon the judgment of Judicature at Allahabad in the case of LAXMI AND OTHERS v. STATE OF U.P. AND ANOTHER decided on 23.11.2022, wherein also the judgment of the Apex Court in the case of Sunil Mehta (supra) was referred. Referring these judgments, the learned counsel would contend that the same is a curable defect and the same can be set aside and the matter may be remitted back to the Trial Court to record the evidence and proceed in accordance with law.

10. Having heard the learned counsel for the revision petitioner and the learned counsel for the respondent and also considering the principles laid down in the judgments referred supra by both the counsel, the points that would arise for the consideration of this Court are:

          (i) Whether the Trial Court committed an error in proceeding to frame the charge without recording evidence before charge and whether it requires interference of this Court?

          (ii) What order?

Point No.(i):

11. Having heard the learned counsel for the revision petitioner and the learned counsel for the respondent, it is not in dispute that a private complaint was filed before the Trial Court in PCR No.67/2020 for the offences punishable under Sections 420, 406, 504 and 506 of IPC. The Trial Court referred the matter under Section 156(3) of Cr.P.C. to the SHO, Udupi Town Police Station for investigation and report. In view of the said direction, the concerned police after investigation filed the 'B' report and hence, the Trial Court issued the notice to the complainant in respect of the 'B' report filed by the police and thereafter, the Trial Court recording the sworn statement of the complainant and the witnesses, taken the cognizance vide order dated 01.10.2022 for the offences punishable under Sections 406, 420, 504 and 506 of IPC. Thereafter, when the matter was posted for evidence before charge, the Trial Court has taken the earlier sworn statement as evidence and proceeded to frame the charge. The same is challenged before this Court.

12. The main contention of the learned counsel for the revision petitioner is that without evidence before charge, question of framing of charge does not arise in a case of private complaint. There is no dispute with regard to the procedure is concerned and the Trial Court ought to have recorded the evidence before charge before framing of charge when the case arises out of a private complaint. No doubt, the learned counsel for the revision petitioner relies upon the judgment of this Court in the case of Rajanna (supra), wherein this Court held that if no evidence before charge is recorded, the accused is liable to be discharged. The learned counsel for the revision petitioner also relies upon the judgment of Madhya Pradesh High Court in the case of Medhodist Church (supra), wherein it is held that result was that no evidence before charge could be recorded under Section 244 of Cr.P.C. As such, the learned Magistrate could see no other way except to discharge the accused persons.

13. The learned counsel for the respondent brought to the notice of this Court that it is a curable defect. Even if the Trial Court proceeded to frame the charge without recording evidence before charge, the same can be cured. The learned counsel brought to the notice of this Court the Apex Court judgments in the cases of Ajoy Kumar Ghose (supra) and Sunil Mehta (supra). The judgment of the Allahabad High Court in the case of Mohit Kumar Kankar (supra) and also the judgment of High Court of Judicature at Allahabad in the case of Laxmi (supra) have followed the decisions of the Apex Court in the cases of Ajoy Kumar Ghose and Sunil Mehta. In view of the judgments of the Apex Court referred supra, the same is curable defect and hence, there is a force in the contention of the learned counsel for the respondent that the same can be cured.

14. Having considered the principles laid down in the judgments of the Apex Court referred supra, those judgments are latest judgments, which have been referred by the learned counsel for the revision petitioner. It is trite law that recent judgment to be taken note of and it is trite law that if any irregularities, the same can be cured. In the case on hand, the Trial Court committed an error in proceeding to frame the charge based on the sworn statement and ought to have recorded the evidence of the witnesses before proceeding to frame the charge and hence, it is a fit case to set aside the order of the Trial Court and accordingly, I answer point No.(i) in the affirmative.

Point No.(ii):

15. In view of the discussions made above, I pass the following:

ORDER

          (i) The criminal revision petition is allowed.

          (ii) The impugned order passed by the Trial Court is set aside.

          (iii) The matter is remitted back to the Trial Court to record the evidence as contemplated i.e., evidence before charge and thereafter, proceed to frame the charge based on the material available on record, in accordance with law.