Mr. Rajiv S/O. Vishnupant Saraf vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 9117 Bom

 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. 

 ---------------------------------------------------------------------------------------------------
                       Mr.R.R. Vyas, counsel for the petitioners.
                Mr.A. R. Chutake, A.P. P.  for the respondent No.1.
 ---------------------------------------------------------------------------------------------------


                                        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.

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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

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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

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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