Akshay Manoj Jaisinghani vs The State Of Maharashtra
2017 Latest Caselaw 9664 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION
                         CRIMINAL WRIT PETITION NO.3599 OF 2017
        Akshay Manoj Jaisinghani,                                  ]
        Age 21 years, Occ. Nil,                                    ]
        R/at - B-309, Skylark Building,                            ]
        Raheja Woods, Next to H.S.B.C.,                            ]
        Kalyani Nagar, Pune                                        ] ... Petitioner
                 Versus
        The State of Maharashtra,                                  ]
        At the instance of Yerwada Police Station,                 ]
        Pune in C.R. No.993/2016                                   ] ... Respondent


        Mr. Subodh Desai, a/w. Mr. Sayeed Y. Mulani, Ms. Shobhana Waghmare
        and Mr. Abhishek Sawant, i/by M/s. Mulani & Co., for the Petitioner.

        Ms. N.S. Jain, A.P.P., for the Respondent-State.


                            CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                            DATE          : 15 TH DECEMBER 2017.


        ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, by consent

of learned counsel for the Petitioner and learned A.P.P. for the

Respondent-State.

2. This Writ Petition is preferred against 'framing of Charge' by the

Additional Sessions Judge, Pune vide order dated 6 th July 2017 passed

in Sessions Case No.440 of 2017.

3. The main grievance of the Petitioner is that, the learned Sessions

Judge has framed 'charge' against the Petitioner without hearing him

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and thereby in non-compliance of the provisions of Sections 226 and 227

of the Cr.P.C. To substantiate this submission, learned counsel for the

Petitioner has pointed out to the copy of the 'Roznama' of the Sessions

Case No.440 of 2017 dated 6 th July 2017, which is produced at page

No.66 to this Petition, to show that, on that day, without the learned

A.P.P. or learned counsel for the Accused being heard, the 'charge' is

directly framed against the Petitioner vide "Exhibit-C". It is submitted

that, Roznama does not disclose that either learned A.P.P. or learned

counsel for the Petitioner were heard before framing of 'charge'.

4. In this respect, Mr. Desai, learned counsel for the Petitioner, has

placed reliance on the Judgment of this Court in the case of Rajukumar

Girdharilal Yadav Vs. State of Maharashtra, 2013 ALL MR (Cri) 2053 ,

wherein, after considering the provisions of Section 226 and 227 of

Cr.P.C., it was held that,

"The stage to frame a charge comes after the Court comes to a conclusion that there was no case for discharge. The charge is to be framed, if, upon consideration of record and hearing, as stated in Section 227 of the Code of Criminal Procedure, the Judge is of the opinion that there are grounds for presuming that the Accused has committed an offence, which is exclusively triable by the Sessions Court."

5. Learned counsel for the Petitioner has also placed reliance on

another decision of this Court in the case of Ambadas Kashirao Kharad

Vs. State of Maharashtra, 2007 ALL MR (Cri) 1916 , wherein after

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considering in detail the provisions of Sections 226 and 227 of Cr.P.C.

and its object and reason, it was observed that,

"The compliance of Sections 226 and 227 is not an empty formality and the Sessions Courts dealing with the Sessions Cases are bound to comply with the provisions of these Sections in letter and spirit."

6. It was further held that,

"Compliance of these provisions is not only to ensure expeditious disposal of Sessions Cases so that the Accused is discharged, if there is no case against him or tried quickly and either acquitted or convicted, as the case may be, but, also to save the Accused from harassment inasmuch as if the records do not make out any prima facie case against the Accused, the Accused is entitled to be discharged."

7. It was further held that,

"It also avoids waste of public time over the cases which do not disclose even prima facie case. Therefore, at this stage, the Judge has to apply his judicial mind to find out as to whether prima facie any offence is made out against the accused, having regard to the record relied upon by the prosecution."

8. In paragraph No.11 of the said Judgment, it was directed that,

"Since the practice of directly framing the 'charge' against the Accused in the Sessions Trial appears to have been followed by different Sessions / Additional Sessions Courts, the copy of this Judgment be circulated to all the Sessions Judges so that the directions contained in the Judgment, relating to scrupulous compliance of the provisions of Sections 226 and 227 of the Cr.P.C. are followed."

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9. Admittedly, in the present case, the 'Roznama' does not disclose

that Additional Public Prosecutor was present and he has opened the

case and learned Sessions Judge has heard the A.P.P. before framing of

'charge'. Though learned counsel for the Petitioner was present along

with the Petitioner, 'Roznama' shows that, he has on that day itself filed

the Vakalatnama and 'Roznama' is silent as to whether learned counsel

for the Petitioner was heard before framing of charge or not. In such

situation, in the light of the law laid down in both the Judgments

referred above, this Writ Petition needs to be allowed. Hence, ordered

accordingly.

"O R D E R"

(i) The impugned order dated 6th July 2017 passed by the Additional Sessions Judge, Pune, in Sessions Case No.440 of 2017, thereby framing 'Charge'(Exhibit-C) against the Petitioner, is quashed and set aside.

(ii) The learned Sessions Judge is directed to follow the procedure laid down in Sections 226 and 227 of the Criminal Procedure Code, as stated here-in-above, and proceed further in accordance with law.

10. Rule is made absolute in the above terms.

11. Writ Petition is disposed of.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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