Accused must be given an opportunity to contest allegations and evidence before trial proceeds

1. - The petitioners, by this miscellaneous petition, have challenged the order dated 17.9.92, passed by the Additional Chief Judicial Magistrate Bali, by which the learned Additional Chief Judicial Magistrate took cognizance against the petitioners for the offences under Sections 409 and 120-B, I.P.C. and issued warrants of arrest to procure the presence of the accused-petitioners.

2. The order taking cognizance is an ex parte order passed by the trial Court without giving any opportunity of hearing to the accused. The petitioners may, therefore, in pursuance to the process issued against them, appear before the learned Magistrate and show to the Court that the allegations made in the complaint and the evidence collected by the investigating agency, do not constitute any crime involving the accused and satisfy the Court that if the relevant material would have been taken into consideration, the process against the would not have been issued. When such thing is brought to the notice of the trial Court then the trial Court will consider the arguments advanced by the petitioners and if it is satisfied that no case is made- out against the/accused-petitioners from the material available on record then the trial Court may drop the proceedings. But if the trial Court is of the opinion that the ingredients of the offences are made out then the learned trial Court will proceed with the trial. The order, passed by the learned Magistrate, at this state, does not require any interference.

3. In the result, I do not find any merit in this miscellaneous petition and the same is hereby dismissed. However, the trial Court is directed to procure the presence of the accused- petitioners for all the aforesaid offences by issuing bailable warrant in the sum of Rs. 10,000 each with two sureties to Rs. 5,000/- each, instead of warrant of arrest.Petition dismissed.

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