Heard Shri S. G. Bhobe, learned Counsel appearing for the Petitioner and Ms. Milena Pinto, learned Addl. Public Prosecutor appearing for the Respondent.

2. The above Petition challenges an Order passed by the learned Sessions Judge dated 31.07.2012 in the Revision challenging the Order dated 29.02.2012 passed by the learned JMFC, Margao, in Criminal Case no. 380/S/03 dismissing the application dated 25.01.2012 filed by the Petitioner, came to be rejected.

3. The short point for consideration in the above Petition is what procedure is to be followed in proceedings which have been initiated at the instance of the learned Sessions Judge for offences punishable under Section 193 of the Indian Penal Code which is a warrant triable case otherwise than on police report.

4. Shri S. G. Bhobe, learned Counsel appearing for the Petitioner, pointed out that though the proceedings are to be considered as a warrant triable case otherwise than on police report, the learned Magistrate has gone to frame the charge and record the evidence of the Complainant. Learned Counsel further pointed out that though the Complainant has been examined, no other witness have been examined at the instance of the Respondent. Learned Counsel further pointed out that the procedure to be followed is under Chapter XIX-B of Cr.P.C. and, as such, the learned Magistrate was not justified to follow the procedure of a warrant triable case. Learned Counsel further pointed out that, in any event, the Petitioner would not object that the evidence of the Complainant which is completed be treated in terms of Section 244 of Cr.P.C. as evidence before charge. Learned Counsel as such submits that the impugned Order be quashed and set aside. In support of his submissions, the learned Counsel has relied upon the Judgment of the Apex Court reported in (2009) 14 S.C.C. 115 in the case of AjoyKumar Ghose vs. State of Jharkhand & anr.

5. On the other hand, Ms. Pinto, learned Addl. Public Prosecutor appearing for the Respondents, pointed out that the Petitioner ought to have raised this contention before the charge was framed or before the evidence of the Complainant was recorded. The learned Addl. Public Prosecutor pointed out that the Petitioner had earlier challenged the framing of charge by the learned J.M.F.C., and no such contention was raised before this Court whilst disposing of the Petition. Learned Addl. Public Prosecutor further pointed out that in terms of Section 465 of Cr.P.C., any such irregularity does not vitiate any order of finding arrived at by the learned JMFC. Learned Addl. Public Prosecutor further pointed out that even the Order framing of charge has not been challenged by the Petitioner and, as such, the question of raising such contention at this stage by the Petitioner is not at all justified. Learned Addl. Public Prosecutor as such points out that the Petition be rejected.

6. I have carefully considered the submissions of the learned Counsel and I have also gone through the records. It is not in dispute that an offence under Section 193 of the Indian Penal Code is to be tried as a warrant triable case otherwise than on police report and, as such, the contention of Shri Bhobe, learned Counsel appearing for the Petitioner that the procedure as provided under Chapter XIX-B in Cr.P.C. is to be accepted. In such circumstances, the question of framing of charge at this stage is not at all correct. The Apex Court in the said Judgment in the case of AjoyKumar Ghose vs. State of Jharkhand & anr. (supra) has observed at Paras 21, 22, 23, 24, 25, 30, 31, 51, 52 and 53 thus:

“21. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) CrPC on the