M. Girijesh vs State of Karnataka

V. Jaganathan

This revision petition is disposed of finally after hearing learned Counsel for the parties. The petitioner is accused No. 1 in the trial court in respect of a case registered against him and another for the affences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and the petitioner''s grievance is that he was not heard before the charge was framed and therefore, he has sought for setting aside the order dated 20.04.2011 directing framing of the charge.

Sri.C.H.Jadhav, learned Counsel for the petitioner referring to the order sheet of the trial court, submitted that the matter was posted on 25.02.2011 to hear before charge and on that day, the order sheet does not indicate that the accused-petitioner was heard and further on the next date of hearing i.e., 20.04.2011 also, the order sheet is silent as to whether the petitioner was heard before ordering charge to be framed and that apart, the proceedings of 20.04.2011 does not even reveal as to whether the court had decided to frame the charge, but however, in the left side column of the order sheet there is a mention by the concerned court official that the matter is listed for charge. As such, the trial court going ahead and reading of charge to the petitioner on 10.06.2011 is contrary to the provisions of the Cr.P.C. and the procedure contemplated therein in respect of framing of the charge. Therefore, the matter be remanded to the trial court to hear the petitioner afresh before framing of the charge.

On the other hand, submission of Smt. T.M. Gayathri, learned Counsel for respondent-Lokayuktha is that, the petitioner has not challenged the order dated 10.06.2011 of the trial court and more over, though the trial court passed the order on the aforesaid date, the petitioner slept over the matter and approached this Court only on 18.07.2011 few days before the actual commencement of trial. Under the said circumstances, both accused being found present on 20.04.2011 and the petitioner having not filed any application for discharge also, the order of the trial court is just and proper requiring no interference.

Having thus heard both sides and after going through the order sheet of the trial court, this Court is in agreement with the submission made by learned Counsel Sri.C.H.Jadhav for the petitioner because, the order sheet first of all does not even make out as to what was the order passed by the learned trial Judge on 25.02.2011 and 20.04.2011. Secondly, on 25.02.2011, the matter was posted for hearing before charge and the order sheet does not indicate as to whether the petitioner was heard on that date. Again on the following hearing date i.e., on 20.04.2011, (sic) is nothing in the order sheet to indicate that the petitioner was heard before charge, but only on the left side column of the order sheet, there is mention presumably by the court clerk that the matter is posted for charge. However, there is no order of the learned trial Judge above the signature of the learned Judge that the petitioner has heard before charge.

A plain reading of Section 240 of Cr.P.C., makes it clear that the Magistrate has to proceeded to frame the charge in writing only upon consideration, examination if any and hearing and after having formed an opinion that there is ground for presuming that the accused had committed an offence which the Magistrate is competent to try that he shall proceed to frame the charge.

In the instant case, as the order sheet dated 25.02.2011 and 20.04.2011 of the trial court being silent as to whether the petitioner had been actually heard before proceeding to frame the charge, learned Counsel for the petitioner it justified in submitting that the trial court could not have proceeded to frame the charge without hearing the petitioner and as such, even the consequent order passed on 10.06.2011 cannot be sustained in view of the Court having not heard the petitioner on 20.04.2011.

For the aforesaid reasons, the matter is remanded to the trial court to consider afresh the prayer of the petitioner for being heard before charge. Although the 2nd accused has not come before this Court preferring any revision since the trial court has not followed the procedure contemplated under the Cr.P.C. before framing the charge, the trial court shall also hear accused No. 2 as well before framing the charge, thereafter to proceed in accordance with law. Revision petition therefore stands allowed.