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2005 DIGILAW 2779 (RAJ)

Sohan Singh v. State of Rajasthan

2005-10-22

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-Heard learned Counsel for the petitioners and the Public Prosecutor for the State. Perused the order impugned. 2. Only a short point is involved in the instant revision petition and, therefore, notice for final disposal was served on Mr. JPS Chaudhary, the learned Public Prosecutor, who accepted the notice. With the consent of the learned Counsel for the parties, the revision petition is finally heard. 3. By the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, “the Code”) the petitioner have challenged the order dated 26.09.2005 passed by the Additional Chief Judicial Magistrate (Railway), Jodhpur (for short, “the trial Court” hereinafter), whereby the trial Court framed the charges against the petitioners. 4. The only grievance of the accused-petitioners is that the trial Court, without hearing the submissions of the accused-petitioners, framed the charges against them by the impugned order. 5. From the perusal of the impugned order, it no where appears that the accused-petitioners were heard before framing the charges. Section 240 of the Code provides that if , upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in wring a charge against the accused. Section 239 of the Code provides that if , upon considering the police report and the documents sent with in 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. 6. A conjoint reading of Sections 239 and 240 of the Code makes it clear that it is mandatory requirement of law that before framing the charge, or discharging the accused, the Magistrate is required to examine the documents filed by the police under Section 173 of the Code and hear the submissions of the accused. In the instant case, from the bare perusal of the impugned order, it appears that the accused-petitioners were not heard before framing the charge and, therefore, the impugned order cannot be sustained. 7. In the instant case, from the bare perusal of the impugned order, it appears that the accused-petitioners were not heard before framing the charge and, therefore, the impugned order cannot be sustained. 7. Consequently, the revision petition is allowed. The impugned order dated 26.09.2005 passed by the Additional Chief Judicial Magistrate (Railway), Jodhpur in Criminal Regular Case No. 427/2005 is set aside and the matter is remanded to the trial Court to afford the accused-petitioners an opportunity of hearing before framing the charge and frame the charge afresh in accordance with law. The stay petition also stands disposed of .