Point of Law: Court has not entered into merits of the charge so framed at this stage. It is for the learned Sessions Judge to frame charge on the basis of charge sheet papers after following provisions of section 226 to section 228 of Cr.P.C. Present order is passed purely on account of failure on the part of the learned Sessions Judge in following provisions of law, required to be followed after committal of case under section 209 of the Cr.P.C.

JUDGMENT :

1. With the consent of learned advocates for the respective parties, the matter is taken up for final hearing.

2. Heard learned counsel Mr.J.M.Panchal appearing for learned advocate Mr. Rahul Dholakia, learned PP Mr. Mitesh Amin assisted by learned APP Mr. Pranav Trivedi and learned advocate Mr. K.S.Chandrani for the complainant.

3. This matter under section 397 read with section 401 of the Code of Criminal Procedure (for short “Cr.P.C.”) is preferred against order of “framing of charge” dated 02.02.2021 passed by learned Additional Sessions Judge, Bhachau below Exh.25 in Sessions Case No.216 of 2020 in the matter between Ms. Manishaben Gajjugiri Goswami (original accused No.10) v/s. State of Gujarat.

4. The main but serious grievance made by the applicant is that learned Sessions Judge has framed the “charge” against her without hearing and thus, there is apparent non compliance of provisions of section 226 and 227 of the Cr.P.C. While elaborating the submissions and after reading copy of “Rojnama” in Sessions Case No.216 of 2020 dated 02.02.2021 annexed at Page No.228 to this application to demonstrate that without learned Special Public Prosecutor or learned advocate for the accused being heard, “charge” is directly framed against the applicant vide annexure A through video conferencing hearing. Learned counsel Mr. J.M.Panchal appearing with learned advocate Mr.Rahul Dholakia for the applicant would submit that after framing of charge against applicant, the matter is posted on 01.04.2021 for further hearing of Sessions Case No.199 of 2020 as per Rojkam and hearing of application Exh.24. It is vehemently argued with serious grievance that by and large majority of Sessions Judge do not comply with the provisions laid down under section 226 and 227 of the Cr.P.C. in its letter and spirit. In the case on hand, original accused nos.1 and 2 of Sessions Case No.199 of 2020 filed application below Exh.125 praying compliance of section 226 of the Cr.P.C. Vide order dated 19.12.2020, learned Sessions Judge rejected the application on the ground that since documents of charge sheet along with statement of witnesses are already provided to them there is due compliance of section 226 of the Cr.P.C. Copy of said order is annexed at Annexure D to this application (Page No.162 to 164).

5. With this background, learned advocate Mr.J.M.Panchal would submit that any accused person is not required to draw attention of the court towards provision of section 226 and 227 of the Cr.P.C. as duty is cast upon the Sessions Court to comply the same in its letter and spirit. Despite such duty cast upon the Sessions Judge, present applicant moved application Exh.24 (annexed at Annexure E), inter-alia, disclosing that applicant can avail her right under section 227 of the Cr.PC. after prosecution opens its case in accordance with provisions of section 226 of the Cr.P.C. However, the applicant made a written request to the learned Sessions Judge to comply with the provisions of section 226 of the Cr.P.C. so that the applicant can avail provision of section 227 of the Cr.P.C. to file discharge application. Such application is filed on 12.01.2021 and same is pending as of now. In this respect, learned counsel Mr.J.M.Panchal has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Amit Kapoor v/s. Ramesh Chander and Anr. reported in (2012) 9 SCC 460, wherein it was held in para 17 as under :-

“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms o section 228 of the Code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of