Chapter XIX
Section 246 CrPC: Procedure where accused is not discharged
New Law Update (2024)
Section 295 BNSS
TRIAL COURT
Magistrate's Court
Punishment
Procedural – Trial / Charge
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, 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.
(2) 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.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-Section (3) he 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.
(5) 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.
(6) 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.
Important Sub-Sections Explained
Section 246(1)
This sub-section empowers the Magistrate to formally accuse the person (frame a charge) if, after hearing evidence, there’s enough reason to suspect they committed a crime that the Magistrate can try and adequately punish. It’s the critical step where the court decides to proceed with the trial based on a preliminary assessment of the evidence.
Section 246(4)
This part ensures that if the accused denies guilt or wants a trial, they get the opportunity to question the prosecution’s witnesses whose statements have already been recorded. This is a fundamental right to challenge the evidence against them and forms a crucial part of a fair defence.
Landmark Judgements
State of Maharashtra v. Som Nath Thapa (1996):
This Supreme Court ruling clarified the extent of judicial scrutiny required at the stage of framing charges. It held that the court is not required to make a detailed assessment of the evidence but only to see if a ‘grave suspicion’ exists that the accused has committed an offence. If two views are possible, and one points to the accused’s guilt, the charge can be framed, a principle applicable to the Magistrate’s determination of ‘ground for presuming’ under Section 246(1).
P. Vijayan v. State of Kerala (2010):
While primarily addressing Section 313 CrPC, this Supreme Court judgment emphasized the fundamental right of an accused to a fair trial, including the opportunity to present a defence. It highlighted that the accused must be given a full opportunity to explain circumstances and rebut the prosecution’s case, aligning with the spirit of Section 246(2) regarding the accused’s defence and Section 246(4)-(6) concerning the right to cross-examine prosecution witnesses.