Kesavun and Others vs State of Kerala

G. Sasidharan

This petition is filed by the accused Nos. 2 to 6 in C.C.635/99 on the file of the Judicial Magistrate of the First Class, Chavakkad praying that the proceedings in the above case may be quashed. The petitioners on a previous occasion filed Criminal Miscellaneous Case in this court for quashing the proceedings. The above Criminal Miscellaneous case was disposed of by this court by observing that there was no reason for quashing the complaint. This court in disposing of the Criminal Miscellaneous Case said that whether there is scope for a charge against ali or any of the accused persons, is a matter to be properly considered at the time of framing charge. This court held that proper course open to the petitioners is to appeal before the Magistrate and argue for a discharge before the charge is framed. After that, the learned Magistrate took a decision on 6-2-2001 for framing charge against all the accused directing that all the accused will have to appear before the court. The above direction given by the learned Magistrate is challenged by saying that a considered order has not been made by the learned Magistrate in respect of the direction in Annexure B order of this court. The learned counsel appearing for the second respondent submits that it is not necessary that a considered order has to be made by the learned Magistrate when proceeding to frame charge against the accused in a crime. In support of the said submission, the counsel relied on the decision of the Supreme Court in Smt. Om Wati and Another Vs. State, through Delhi Admn. and Others, . In that decision the Supreme Court held that no reasons are required to be recorded when charges are framed against the accused persons. Sec. 227 of the Cr.P.C. says that if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. The above section says that reasons have to be stated when the court takes a decision to discharge the accused. Sec. 228 of the Code says about framing of charge in a sessions case and that section does not say that reasons have to be stated when framing charge. In Sec. 239 Cr.P.C. it is stated that when the magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. Sec. 240 deals with framing of charge in warrant cases and in that Section no mention is made that when the court proceeds to frame charge, reasons will have to be stated. In Sec. 239 it is stated that when an accused is discharged, reasons have to be stated. In the light of what is stated in Sec. 240 it has to be said that when the court takes a decision for framing charge, the reasons need not be stated.

The learned counsel appearing for the petitioners cited the decision R. Balakrishna Pillai v. State (1996 (1) CrI.L.J. 757) in which in para.8, this court said that when the accused files petition under Sec. 239 of the Cr.P.C. and chose to advance arguments seeking their discharge, the trial court was left with no other alternative except to pass an order considering the contentions raised by the respective accused. On pointing out the above observations in the above judgment of this court, it is maintained that since there is a direction by this court that the petitioner could raise his contentions in the trial court at the time of framing charge, the learned Magistrate ought to have made a considered order even though the decision taken was for framing charge. Such an observation was made by this court on interpreting Sec. 239 Cr.P.C. It is seen that the court did not make reference to 240 Cr.P.C. and that provision has not been taken into consideration along with Sec. 239 Cr.P.C. In the light of the observation made by the Supreme Court in the decision in Smt. Om Wati and Another Vs. State, through Delhi Admn. and Others, that at the time of framing charge, the court need not record reasons, it cannot be said that the court is bound to make a considered order when taking a decision for framing charge. A reading of Sec. 240 of the Cr.P.C. would go to show that the decision to frame charge in writing as envisaged under that section also has to be taken after hearing the accused and the prosecution. Section 240 states that on considering the facts mentioned in sec. 239 and on hearing, the magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chap. XIX which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. So framing charge under Sec. 240 Cr.P.C. is also after hearing arguments of the accused. In those circumstances, also Sec. 240 Cr.P.C. does not say that a considered order giving reasons for framing charge has to be made by the magistrate. Here it is pointed out that after the disposal of the Cr. M.C. by this court, petition was filed before the Magistrate for discharging the accused. The counsel would have advanced arguments before the Magistrate. The learned counsel for the petitioner submits that arguments were advanced and for that reason the Magistrate ought to have made a considered order. Since in Sec. 240 Cr.P.C. it is stated that after hearing, the court takes a decision for framing charge and it is not stated that these reasons are to be given, it cannot be said that in the instant case since petition for discharge was filed and arguments were heard, the court ought to have made a considered order before proceeding to frame charge. For the above reasons, 1 find that there is no merit in this petition. Hence this petition is dismissed.