Bombay High Court
Anil Pundlikrao Khadse vs State Of Mah. Thr. Pso Ps City ... on 1 February, 2023
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 823 OF 2022
PETITIONER : Anil Pundlikrao Khadse, Aged: 45 yrs,
Occ: Business, R/o. Plot No.531/1,
Congress Nagar, Panchsheel Housing
Society, Amravati, Dist. Amravati.
//VERSUS//
RESPONDENT : State of Maharashtra, Through P.S.O.,
P. S. City Kotwali, Tq. & Dist.
Amravati.
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Mr. S.B. Gandhe, Advocate for the Petitioner.
Mr. A.R. Chutke, APP for the Respondent/State.
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CORAM : G. A. SANAP, J.
DATED : 1st FEBRUARY, 2023.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is
heard finally by consent of the learned advocates for the parties.
02] In this criminal writ petition, filed under Article 227 of
the Constitution of India, challenge is to the order dated
3rd August, 2022 passed by the learned Chief Judicial Magistrate,
Amravati, whereby the learned Chief Judicial Magistrate has
framed the charge against the petitioner-accused No.1.
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03] The charge-sheet against the accused No.1 was filed on
3rd August, 2022. The accused No.2 was absconding. The learned
Chief Judicial Magistrate was pleased to issue standing arrest
warrant against the accused No.2. The learned Chief Judicial
Magistrate, without waiting for execution of the standing arrest
warrant against the accused No.2, was pleased to frame the charge
against the accused No.1. The accused No.1 was produced via
video conferencing.
04] The main grievance of the petitioner is that the learned
Chief Judicial Magistrate neither heard the learned APP in-charge
of the case nor the accused before framing the charge. It is stated
that the order of framing of charge is contrary and in gross
violation of the mandate of Section 239 of the Code of Criminal
Procedure, 1973 (for short "Cr.PC"). It is the grievance of the
accused that the learned Chief Judicial Magistrate, without giving
an opportunity to the accused and to his advocate, to make a
submission before framing the charge, framed the charge in hurry.
05] I have heard Mr. S.B. Gandhe, learned advocate for the
petitioner and Mr. A.R. Chutke, learned APP for the respondent.
06] The learned APP argued the matter without filing the
reply. The question of applicability of Section 239 of the Cr.PC is
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involved in this case. It would, therefore, be appropriate to
reproduce Section 239 of the Cr.PC, which reads as follows:
"239. When accused shall be discharged.--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."
07] The roznama dated 3rd August, 2022 has been placed on
record. The roznama does not reflect that the learned Chief Judicial
Magistrate had examined the report or heard the petitioner-accused
No.1, the advocate for the petitioner and the prosecution, as
required to be done in terms of Section 239 of the Cr.PC. The
roznama indicates that on the date of taking cognizance itself, the
learned Chief Judicial Magistrate framed the charge. The accused
No.1 was produced via video conferencing. It is not reflected in the
roznama that the advocate representing the accused No.1 was
either present or absent in the Court. The learned Chief Judicial
Magistrate was required to ensure the compliance of Section 239 of
the Cr.PC. It needs to be stated that the compliance of Section 239
of the Cr.PC must be reflected in the record. In this case, leave
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aside the record, it has not been reflected in the roznama. The
roznama dated 3rd August, 2022 would show that no hearing for
examination of the record, as contemplated under Section 239 of
the Cr.PC was made by the learned Chief Judicial Magistrate. The
charge, framed against the petitioner-accused No.1 without
complying the provisions of Section 239 of the Cr.PC, is, therefore,
not in accordance with law. The charge is, therefore, required to be
quashed and set aside. The petitioner-accused No.1 is required to
be given an opportunity of hearing before framing the charge.
08] Accordingly, the writ petition is allowed. The order
dated 3rd August, 2022 passed by the learned Chief Judicial
Magistrate, Amravati framing the charge against the petitioner-
accused No.1 and the order dated 15th October, 2022 passed by the
learned Additional Sessions Judge, Amravati confirming the order
passed by the learned Chief Judicial Magistrate are quashed and set
aside. The learned Chief Judicial Magistrate shall comply with the
provisions of Section 239 of the Cr.PC before proceeding to frame
the charge.
09] The learned advocate for the petitioner, at this stage,
submits that the absconding accused has now been arrested. The
learned Chief Judicial Magistrate, therefore, shall ensure that the
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charge is framed against accused Nos.1 and 2 after granting them
an opportunity of hearing and after conducting hearing, as
provided under Sections 239 and 240 of the Cr.PC.
10] The Registry to communicate this order to the learned
Trial Court.
11] Rule is made absolute in the aforesaid terms. The writ
petition stands disposed of.
(G. A. SANAP, J.)
Vijay
Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Signing Date:03.02.2023 18:04
