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Judgment
6 paragraphs · 384 wordsRekha kumari, J.—Heard.
This is an application filed u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) for quashing the order dated 21.11.2004/22.11.2004 passed by Sri J.K. Dubey, J.M. 1st Class, Sasaram in G.R. No. 935 of 2001/Tr. No. 2014 of 2004 by which he has rejected the prayer of the petitioner for his discharge.
It appears that the petitioner had filed an application u/s 239 of the Code before the Magistrate for discharge on the ground that there was no sufficient material to frame charge u/s 408 of the Indian Penal Code. The learned Magistrate heard both sides and by the impugned order dismissed the prayer. In his order he has simply stated that he perused the chargesheet and the case diary. The Chief Judicial Magistrate has also taken cognizance u/s 408 I.P.C. and, hence, in his opinion also there is sufficient material for framing charge.
It is true that if a Magistrate discharges any accused u/s 239 of the Code, he has to give reasons for the same and if he frames charge as provided u/s 242 of the Code he is not required to give any reason for the same. But as held by the Supreme Court in the case of Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, it cannot be said that at the stage of framing of charges, the Magistrate has not to apply his judicial mind for considering whether or not there is ground for presuming the commission of offence by the accused. Without fully adverting to the material on record it must not blindly adopt the decision of the prosecution.
In this case also when the petitioner had filed petition for discharge on ground that there was no sufficient material to frame charge, the learned Magistrate should have referred to some materials to connect the petitioner with the offences, to reject the prayer. But the impugned order shows that he has been mechanical, without applying judicial mind has passed the impugned order.
Accordingly, this Criminal Misc. application is allowed. The impugned order is hereby set aside. The learned Magistrate is directed to pass a fresh order in the light of the above observation after giving opportunity of hearing to both sides.