Case Note & Summary
The applicant, original accused No.2, was arrested in connection with C.R. No.127/2018 registered at Ichalkaranji Police Station, Kolhapur for offences punishable under Sections 354 and 506 read with 34 of the Indian Penal Code. After investigation, charge-sheet was filed on 14th June 2018 and summons were issued on the same day. The next date before the learned Judicial Magistrate First Class, Peth Vadgaon, Kolhapur was 14th August 2018. On that date, the Magistrate proceeded to frame charge against the applicant and co-accused without complying with the provisions of Section 239 of the Criminal Procedure Code (Cr.P.C.). The applicant challenged the order dated 14th August 2018 passed below Exhibit 12/C and Exhibit 14/C by filing Criminal Application No.1298 of 2018 before the Bombay High Court. The learned counsel for the applicant submitted that the Magistrate had not given any opportunity of being heard to the accused or the prosecution, nor had he examined the police report as required under Section 239 Cr.P.C. The learned A.P.P. did not dispute this fact. The High Court perused the Roznama and found that it did not reflect any compliance with Section 239 Cr.P.C. The Court held that the Magistrate had proceeded to frame charge without following the mandatory procedure under Section 239 Cr.P.C., which requires the Magistrate to consider the police report, examine the accused if necessary, and give an opportunity of being heard to both sides. Consequently, the order framing charge was set aside and the matter was remanded back to the Magistrate to proceed afresh in accordance with law.
Headnote
A) Criminal Procedure - Framing of Charge - Section 239 Cr.P.C. - Mandatory Procedure - The Magistrate must consider the police report, examine the accused if necessary, and give opportunity of hearing to prosecution and accused before framing charge - In the present case, the Magistrate framed charge on the very first date of appearance without any such compliance - Held that the order framing charge is unsustainable and set aside (Paras 8-10).
Issue of Consideration
Whether the Magistrate's order framing charge without complying with Section 239 Cr.P.C. is sustainable?
Final Decision
The order dated 14th August 2018 passed by the learned Judicial Magistrate First Class, Peth Vadgaon, Kolhapur below Exhibit 12/C and Exhibit 14/C framing charge against the applicant is set aside. The matter is remanded back to the learned Magistrate to proceed afresh in accordance with law, after complying with the provisions of Section 239 Cr.P.C.
Law Points
- Section 239 Cr.P.C. mandates consideration of police report
- examination of accused
- and hearing before framing charge
- non-compliance vitiates the order
