2811WP1038.17-Judgment 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 1038 OF 2017
PETITIONER :- Mr. Rajiv S/o Vishnupant Saraf, aged about
59 years, occupation : business, R/o Civil
Lines, Chandrapur.
...VERSUS...
RESPONDENTS :- (1) State of Maharashtra, through Police Station
Officer, Police Station Samudrapur, District
Wardha.
(2) Mr. Bhaurao S/o. Jagobaji Raut, aged about
70 years, occupatoin : agriculturist, R/o
shegaon (Kund), Tah. Hinganghat, District
Wardha.
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Mr.R.R. Vyas, counsel for the petitioners.
Mr.A. R. Chutake, A.P. P. for the respondent No.1.
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CORAM : REVATI MOHITE DERE, J.
DATED : 28.11.2017 O R A L J U D G M E N T Heard learned counsel for the petitioner and the learned A.P.P. for the State.
2. RULE. Rule made returnable forthwith with the consent of the parties and is taken up for final disposal at the stage of admission. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:42 :::
2811WP1038.17-Judgment 2/4 Since the respondent No.2 is a formal party, it is not necessary to issue notice to him.
3. By this petition, the petitioner has impugned the order dated 05/08/2017 passed by the learned J.M.F.C., Samudrapur in Reg.Cri.Case No.99 of 2011, by which the learned Magistrate was pleased to frame charge as against the petitioner and two others.
4. Learned counsel for the petitioner submitted, that the learned Magistrate proceeded to frame charge as against the petitioner and 2 other co-accused, without hearing the petitioner. He submitted, that as the learned Magistrate had failed to comply with section 239 of Cr.P.C., the order framing charge dated 05/08/2017 be quashed and set aside.
5. Learned A.P.P. opposes the petition. Learned A.P.P., however, does not dispute the fact, that on the very first date i.e. on 05/08/2017 after the petitioner was enlarged on bail on 29/07/2017, charge was framed as against the petitioner and 2 other co-accused.
6. Perused the papers. A perusal of the roznama shows, that on 29/07/2017 the petitioner was enlarged on bail and that his ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:42 ::: 2811WP1038.17-Judgment 3/4 Advocate had filed vakalatnama on his behalf on the said date and the matter was adjourned to 05/08/2017 and, that on 05/08/2017 the petitioner alongwith 2 other co-accused were present, when the learned Magistrate proceeded to frame charge as against the petitioner and 2 other co-accused. A perusal of section 239 of Cr.P.C. shows, that if upon considering the Police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. The roznama does not reflect whether the Magistrate had examined the report or had heard the petitioner or the prosecution in compliance with section 239 of Cr.P.C. The roznama shows, that on the very first day, after the petitioner was enlarged on bail and after his Advocate filed his vakalatnama, the learned Magistrate proceeded to frame charge.
7. Considering the fact, that the learned Magistrate proceeded to frame charge, as against the petitioner and 2 other co- accused in Reg.Cri.Case No.99 of 2011, without complying with the provision of section 239 of Cr.P.C., the order framing charge is required to be quashed and set aside and the accused will have to be given an ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:42 ::: 2811WP1038.17-Judgment 4/4 opportunity of being heard.
8. Accordingly, the petition is allowed. The order framing charge (Exhibit-30) dated 05/08/2017 is quashed and set aside. The learned Magistrate shall comply with section 239 of Cr.P.C., before proceeding with section 240 of Cr.P.C.
Rule is made absolute in the aforesaid terms. There shall be order as to costs.
9. In view of order passed in Writ Petition No.1038 of 2017, nothing survives for consideration in Criminal Application (APPW) No.264 of 2017. The said application is accordingly disposed of.
10. All the parties to act upon the authenticate copy of this judgment.
JUDGE KHUNTE ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:42 :::