Case Note & Summary
The petitioners, accused in a warrant case instituted on a police report, filed an application for discharge under Section 239 CrPC. The first informant (respondent no.2) made an oral request to be heard, which was allowed by the trial court. The petitioners challenged this order. The High Court examined the scheme of Chapter XIX CrPC, which deals with warrant cases. It noted that Section 239 CrPC applies to warrant cases instituted on a police report, while Section 244 CrPC applies to warrant cases instituted otherwise than on a police report. The court observed that the legislature has consciously provided for hearing of the complainant only at the stage of framing of charge under Section 244 CrPC, but not at the stage of discharge under Section 239 CrPC. The court relied on the principle that where the legislature has intended to give a right of hearing, it has expressly provided for it. The court also distinguished the case of Bhagwant Singh v. Commissioner of Police, which dealt with a different stage. The High Court held that the trial court erred in allowing the first informant to be heard at the discharge stage. The petition was allowed, and the impugned order was set aside.
Headnote
A) Criminal Procedure - Right of Hearing - First Informant - Discharge under Section 239 CrPC - The first informant has no right of hearing at the stage of consideration of discharge application under Section 239 CrPC in a warrant case instituted on a police report. The right of hearing is available only at the stage of framing of charge under Section 244 CrPC in a warrant case instituted otherwise than on a police report. The scheme of Chapter XIX CrPC distinguishes between the two types of warrant cases, and the legislature has consciously not provided for hearing of the first informant at the discharge stage. (Paras 1, 6-10)
Issue of Consideration
Whether the first informant has a right of hearing at the time of consideration of the application for discharge under Section 239 of the Code of Criminal Procedure, 1973.
Final Decision
The petition is allowed. The impugned order dated 30th August 2010 passed by the Additional Chief Metropolitan Magistrate, 8th Court, Mumbai, allowing the oral request of respondent no.2 to be heard at the stage of discharge under Section 239 CrPC, is set aside.
Law Points
- Right of hearing
- First informant
- Discharge under Section 239 CrPC
- Framing of charge under Section 244 CrPC
- Scheme of Chapter XIX CrPC
- Warrant cases instituted on police report
- Warrant cases instituted otherwise than on police report
Case Details
2012 LawText (BOM) (02) 101
Criminal Writ Petition No.3438 of 2010
Mr. Mahesh Jethmalani, Senior Counsel with Mr. Pranav Bhadeka, Mr. Prashant Pawar, Mr. Vinod Bhagat & Mr. Punit Jain i/by Mr. G.S. Hegde & V.A. Bhagat for petitioners; Mr. S.A. Shaikh, A.P.P. for State of Maharashtra; Mr. Amit Desai, Senior Counsel with Mr. Vishwajeet Sawant, Mr. Subhash Jadhav, Mr. Inderpalsing Niramale i/by ALMT Legal for respondent no.2
Kishore Wadhwani and Nitesh Wadhwani
The State of Maharashtra and Dhariwal Industries Limited
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Nature of Litigation
Criminal writ petition challenging the trial court's order allowing the first informant to be heard at the stage of discharge under Section 239 CrPC.
Remedy Sought
The petitioners (accused) sought to quash the trial court's order dated 30th August 2010 which allowed the first informant's oral request to be heard at the discharge stage.
Filing Reason
The petitioners objected to the first informant being heard at the discharge stage, arguing that the first informant has no right of hearing under Section 239 CrPC.
Previous Decisions
The petitioners had earlier filed Criminal Writ Petition No.93 of 2007 seeking quashing of MECR No.16 of 2006, which was dismissed on 16th April 2007. They then filed SLP (Cri.) No.2414 of 2007 before the Supreme Court, which was withdrawn on 16th November 2009 after the chargesheet was filed. Thereafter, they filed an application for discharge under Section 239 CrPC.
Issues
Whether the first informant has a right of hearing at the time of consideration of the application for discharge under Section 239 CrPC.
Submissions/Arguments
Petitioners argued that the first informant has no right of hearing at the discharge stage under Section 239 CrPC, as the scheme of Chapter XIX CrPC distinguishes between warrant cases instituted on police report and those instituted otherwise, and only the latter provides for hearing of the complainant at the stage of framing of charge under Section 244 CrPC.
Respondent no.2 (first informant) argued that it has a right to be heard, relying on the ratio in Bhagwant Singh vs. Commissioner of Police.
Ratio Decidendi
The first informant has no right of hearing at the stage of consideration of discharge application under Section 239 CrPC in a warrant case instituted on a police report. The right of hearing is only available at the stage of framing of charge under Section 244 CrPC in a warrant case instituted otherwise than on a police report. The legislature has consciously not provided for hearing of the first informant at the discharge stage.
Judgment Excerpts
The single question that arises for consideration in this writ petition is whether the first informant has a right of hearing at the time of consideration of the application for discharge under Section 239 of Code of Criminal Procedure.
The scheme of Chapter XIX CrPC clearly distinguishes between the two types of warrant cases. In warrant cases instituted on a police report, the stage of discharge is under Section 239 CrPC, and the stage of framing of charge is under Section 240 CrPC. In warrant cases instituted otherwise than on a police report, the stage of framing of charge is under Section 244 CrPC, and there is no provision for discharge before that stage.
The legislature has consciously not provided for hearing of the first informant at the stage of discharge under Section 239 CrPC.
Procedural History
The petitioners were accused in Case No.927/PW/2007 pending before the Additional Chief Metropolitan Magistrate, 8th Court, Mumbai, registered on a complaint by respondent no.2 under Section 156(3) CrPC. They filed Criminal Writ Petition No.93 of 2007 seeking quashing of MECR No.16 of 2006, which was dismissed on 16th April 2007. They then filed SLP (Cri.) No.2414 of 2007 before the Supreme Court, which was withdrawn on 16th November 2009 after the chargesheet was filed. Thereafter, they filed an application for discharge under Section 239 CrPC. The first informant made an oral request to be heard, which was allowed by the trial court on 30th August 2010. The petitioners challenged this order by filing the present writ petition.
Acts & Sections
- Code of Criminal Procedure, 1973: 239, 244, 156(3)
