AMIT TALUKDAR, J. ( 1 ) IN course of the management of a criminal trial sometimes certain situations bubble up which taken care of at the right time saves valuable time of the Court-both the Trial Court and the Higher Court as also ensures a proper trial. If the same is overlooked and left uncared for, it not only wastes valuable time of the Court and paves the way for upward journey to the higher Court but also operates to the detriment of the trial as a whole. ( 2 ) IT is during the course of management of the trial of Special Case no. 5 of 1995 before the learned 3rd Special Court, Calcutta a situation has so arisen which if attended at the appropriate stage would have prevented in filing the present Application before this Court and also being conducive to a more healthier trial. ( 3 ) WHILST the Court should be absolutely slow in entertaining revisional Application in respect of Trial of such nature (Under the PC. Act) yet at the same time if the position is allowed to remain static it would, this court is of the considered view, would cause immense harm to the Trial as a whole. ( 4 ) SHOULD the Court be a silent spectator or an innocent by-stander to such events in the trial which it passes through ? if not. Then what should be its role ? either damage control or loss prevention. Felt need of the hour : ( 5 ) BOTH have to be complied with equal impact otherwise the Special case No. 5 of 1995 would not be put back on the rails. ( 6 ) FOR appreciating the legal position it is necessary to trace factual outline ot the same. ( 7 ) THE petitioner hereinabove has been arrayed in the said Special case No. 5 of 1995 before the learned 3rd Special Court, Calcutta pursuant to a Charge-sheet submitted by the Opposite Party. On the eve of framing of charge he felt that he need be discharged from the said proceeding and he took out an Application under Section 239 of the Code of Criminal Procedure (hereinafter referred to as the said Code) on 2. 5. 2003 on various grounds. ( 8 ) IT is here where all went wrong. The learned trial Court placed the petition tor hearing. 5. 2003 on various grounds. ( 8 ) IT is here where all went wrong. The learned trial Court placed the petition tor hearing. This is reflected from the various orders on and from 2. 5. 2003. It appears from the Order No. 45 dated 11. 3. 2004 that the said petition was heard, as it can be gathered from the portion of the Order, which reads like this :"fix 2. 4. 2004 for further hearing of the petitions filed by the Defence on 2. 5. 2003 under Section 239, Cr. P. C. and for consideration of charge. " ( 9 ) HOWEVER, the Order No. 49 dated 5. 5. 2004 shows- "to day is fixed for order as to the point of consideration of charge. " ( 10 ) SUBSEQUENTLY the Order No. 50 dated 24. 5. 2004 shows after a detailed discussion the learned trial Court by its order No. 51 dated 01. 6. 2004 framed a Charge against the petitioner directing him to answer the allegations in respect of the offence punishable under Sections 120b, 420 read with section 120b, 468 read with Section 120b and 471 read with Section 120b of the Indian Penal Code. ( 11 ) SHRI S. S. Roy, learned Senior Counsel for the petitioner has sought to make out a very strong case in respect of his contention that it was incumbent upon the learned trial Court to have first disposed of the petition under Section 239 of the said Code filed by him on 2. 5. 2004 and then proceed to frame the Charge. According to Shri Roy the Charge could not have been framed without at first considering the prayer of the petitioner in respect of his discharge under Section 239 of the said Code. That way the charge was defective. He referred to the Order-sheets annexed with the application and submitted that the Charge which has been framed in such circumstances is liable to be quashed as he was of the view that without first disposing of his prayer for discharge how could the learned trial Court come to the conclusion that there was a prima facie case in favour of the prosecution to proceed with the Trial. ( 12 ) SHRI Roy prayed for quashing of the said Charge. ( 12 ) SHRI Roy prayed for quashing of the said Charge. ( 13 ) SHRI Ranjan Kumar Roy, learned Special Counsel for the Central bureau of Investigation (for short, the CBI) did not find any illegality with the order of framing of the Charge. He was of the view as that since the petitioner has fully participated in the hearing for framing of the Charge and it is only after a through consideration of the materials that the learned trial Court formed an opinion and then proceeded to frame the Charge; as such, how couid the Defence be prejudiced in any manner. ( 14 ) HAVING heard the submissions made at the Bar this Court at first instance feels that it would have been a taciturn position if the learned trial court would have at first disposed of the Petition dated 2. 5. 2004 filed under section 239 of the said Code for whatever its worth and then proceeded to frame the Charge. Since it was not done, no doubt, it is an irregularity occasioned in course of management of a big Trial but, that by itself, even though definitely an error on the part of the Court, cannot vitiate the entire trial for this defect. ( 15 ) ERRORS and omissions have to be understood in the touchstone of prejudice and illegality. When neither of the same occasions the Court has to be magnanimous enough to condone the same and salvage the situation as otherwise the interest of justice, which has anchor both for the defence and for the prosecution, will suffer. ( 16 ) IT is with such mission in mind this Court seeks to unfurl the tangle that have occasioned in the Trial. ( 17 ) A petition finds place in the Record praying for discharge under section 239 of the said Code (Page-23) which seems to have gone undisposed. This Court has carefully perused the averments in the said petition putting itseif in the shoes of the learned trial Court as if it was exercising the powers under Section 239 of the said Code. It finds that the averments made therein could not have persuaded the Court to have earned an order of discharge as the same are intrinsically interwined with the factual matrix and unless evidence is taken the said points could not be looked into. It finds that the averments made therein could not have persuaded the Court to have earned an order of discharge as the same are intrinsically interwined with the factual matrix and unless evidence is taken the said points could not be looked into. ( 18 ) THE Order No. 50 dated 24. 5. 2004 discloses a threadbare analysis in a very meticulous fashion of the materials which persuaded the Court to frame a Charge. It is neither on a cursory glance at the materials nor a very nasty step taken by the learned trial Court; but, the Order-sheets reflect there was serious deliberation of the materials which prompted the learned trial court to form an opinion and proceed to frame the impugned Charge. This court has looked at the position from a very different angle in an unconventional way keeping in mind while procedure has to be followed interest of justice cannot be sacrificed. Even if the petition for discharge under Section 239 of the said Code filed on behalf of the petitioner was not considered this Court is of the firm view that the decision taken by the learned trial Court for the purpose of framing the Charges has not been impaired at the least by such omission. Afterall when the learned trial Court has thrashed the materials at the eve of framing of Charge and have considered the same it would be deemed by a fiction that he has considered the question of discharge by necessary implication since he found materials to enable him to proceed with the Trial the said Charge was framed or else he could have exercise his plenary powers vested under Section 239 of the said Code and discharged the petitioner. ( 19 ) LEST it may be felt that had the petition been considered the accused would to have suffered any prejudice this Court with anxious consideration, even at the cost of repetition holds that it has itself gone through the averments which could not have formed the basis of any order ot discharge and the framing of Charge on the basis of materials available was perfectly justified. ( 20 ) IN the said Code there are three parallel provisions for discharge. ( 20 ) IN the said Code there are three parallel provisions for discharge. Firstly, the provisions of Section 239 of the said Code where in respect of warrant cases instituted on the basis of a Police Report in Chapter-XIXA; secondly, in Section 245 of the said Code warrant triable cases instituted otherwise than Police Report in Chapter-XIXB and lastly, in Section 227 of the said Code the power of discharge by a Court of Sessions in Chapter- xviii. There is a ground rule in all these Sections which are pari materia to the extent that a Court on the eve of framing of Charge can discharge an accused without going into Trial. However, there is a basic outline of difference in all these three sister provisions. While in Section 227 of the said Code the sessions Judge has to form an opinion "that there is not sufficient ground for proceeding against the accused,. . . "; in Section 245 (2) of the said Code the learned Magistrate can discharge an accused if the considers the charge to be groundless. ', whilst in Section 239 of the said Code also he has to form an opinion the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for doing so. ' ( 21 ) AS such, it would be seen that the learned trial Court has to initially form an opinion that the Charge is groundless, which would not be sufficient for the Trial to subsist and then only it would be permissible to the learned trial Court to discharge the accused. ( 22 ) AS earlier it has been found that there are materials and it cannot be said that the Charge to be groundless there would be no basic infirmity in the process that has been occasioned on account of a snag in the Trial which cannot be termed as a system failure. ( 23 ) WITH this finding this Court is of the view that the same is quite curable and no defect has occasioned. More so, as the Trial has now started, at the post-stage of framing of the Charge it will be open to the Petitioner to take all these points when he enters into his defence which has to be considered by the learned trial Court irrespective of the disposal of this application. More so, as the Trial has now started, at the post-stage of framing of the Charge it will be open to the Petitioner to take all these points when he enters into his defence which has to be considered by the learned trial Court irrespective of the disposal of this application. ( 24 ) THE finding of this Court that the averment for discharge does not persuade the Court to come to the conclusion it is not sufficient for the accused to obtain an order of discharge is for the purpose of deciding a question at the stage of Section 239 of the said Code but it would be a substantial ground available to the petitioner at the stage known to law i. e. , section 243 of the said Code. ( 25 ) THE revisional application, a child of mis-management of a Criminal trial, is disposed of with a hope for expeditious conclusion of the Trial on the basis of a smooth management.