M Girijesh vs State of Karnataka

A.S. Pachhapure

The petitioner has challenged the rejection of application filed u/s 239 of CR.P.C. arid framing of charge.

The facts- reveals that Lokayukta police charge sheeted the petitioner u/s 239 of Cr.P.C alleging that the petitioner who was working as an Inspector, Legal Metrology and on 18.03.2005 the complainant has approached the petitioner for repair of the weight and measurement instrument belonging to Bharath Scale Service and a sum of Rs. 2,148/- was the bill amount. The petitioner has demanded a sum of Rs. 1,075/- i.e. 50% of the bill amount as bribe money and it is in these circumstances a complaint came to registered against the petitioner hereunder for the offences punishable under Section. 7, 13(1)(d) of Prevention of Corruption Act. After the investigation, charge sheet has been filed. The matter was potted on 23.09,2011 and at; the first instance, accused no. 1 was absent. The application for exemption was granted. The counsel for accused tin. 2 made a submission that the charge may be framed, Thereafter at 16:45 p.m. when the matter was again called, the counsel for the first accused also made a submission to frame the charge. It is in these circumstances that the matter was adjourned to 25.07,11 and 02.11.2011 for framing of charge.

On 02.11.2011 the petitioner filed an application u/s 239 of Cr.P.C requesting to discharge but as the petitioner''s counsel contested framing of charge and his application was rejected and later charge was framed, It is in these circumstances that this revision petition is filed by the petitioner/1st accused challenging the order rejecting the application filed u/s 239 of Cr.P.C and charge framed without hearing the petitioner.

I have heard the learned counsel for the petitioner and also learned counsel for the respondent.

It is true that on 23.09.202.1 at 16:45 when the matter was posted for hearing the counsel for the first accused has made a submission that he has no objection to frame the charge. It is in these circumstances the matter was adjourned to 02.11.2011 and before the Trail Court on that day an application was filed by the petitioner u/s 239 of Cr.P.C to hear him and to discharge him on the ground that there is no material against, him for framing the charge. It is no doubt true that on 23.09.2011, the petitioner''s counsel has made a submission that he has no objection to frame the charge. The trial Court alter giving an opportunity to the counsel for the petitioner to argue the petition, could have disposed off the same on merits instead of rejecting the application on the ground of consent to frame the charge was given. A consent can foe withdrawn at any time and that has been made clear by the petitioner himself by filing an application u/s 239 Cr.P.C and I am of the opinion that the order of rejecting the application and framing the charge have to fee set aside,

In the result, the petitions are allowed. The order dated:. 02.11.2011 and the further order framing the charges passed on the same day are set aside and the matter is remitted back to the trial Court to afford an opportunity to the petitioner to submit his arguments to the application filed u/s 239 of Cr.P.C and thereafter pass appropriate orders in accordance with law..