The responsibility of the Magistrate to apply judicial mind and consider the entire material before framing a charge, and the right of audience for both the prosecution and the accused in favor of framing charge or discharge.

( 1 ) THIS petition by the accused is directed against the order dated 26-5-1981 passed by the Judicial Magistrate I Class (II Court), Hubli in C. C. No. 869 of 1981 directing to frame a charge against him for an offence punishable under Ss. 379 i. P. C.

( 2 ) ON the basis of a complaint a charge sheet was placed by the Sub-Inspector of police (Crime) Sub-Urban Police Station hubh, against the accused for offences under Ss. 379 and 411 I. P. C. The accused was furnished with copies of the documents of prosecution as required under law. The prosecution as also the learned counsel for the accused were heard before framing of the charge. Thereafter the learned Magistrate passed the impugned order, rejecting the prayer of the accused that he may be discharged as the matter involved in the case is one of civil nature, and directed a charge to be framed against the accused for an offence punishable under S. 379 I. P. C. It is the legality and correctness of the said order that is being assailed in this petition.

( 3 ) SRI G. S. Bhat, learned counsel appe" aring for the petitioner-accused, contended that the impugned order cannot be sustained in law inasmuch as the magistrate has not considered all the materials that were placed before him as required under S. 239 Cr. P. C. He also submitted that the accused is no other than the partner of the firm Sudha Agencies and that he being a partner of the aforesaid firm, the question of his committing theft of the Luna Moped in question did not arise at all and therefore the prosecution has not made out any offence against him and the proper order that should have been passed by the magistrate was that the charge was groundless and hence he should have discharged the accused of the aforesaid offence. In support of his above contention he relied upon a decision in Century Spinning and Mfg. Co. Ltd. V. State of Maharashtra (1) wherein the supreme Court while considering the provisions of S. 251-A Cr. PC. (Old) which corresponds to S. 239 Cr. PC. (New Code) has observed thus :"it cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. Held that the trial court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court therefore was in error in reversing that order".

( 4 ) HE also relied upon a decision of this court in State of Karnataka v. Muniven katappa (2) wherein it is held in para 5 of the judgment thus :". . . . THEREFORE, it cannot be said that the Magistrate, at the stage of framing the charge, has not to apply his judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused- The responsibility of framing a chare or otherwise is of the Magistrate and he has to judicially consider the question of doing so. At the stage of framing the charge, the Court has to apply its mind to find out whether there is a ground for presuming the commission of an offence by the accused. The plain language of the section itself authorises the Magistrate to examine the material placed before him".

( 5 ) THERE is substance in the contention of Sri Bhat. The words appearing in s. 239 Cr. FC. 'opportunity of being heard' do not mean examination of any witness. It