Opportunity of hearing before framing of charge under Section 240 of Cr.P.C.

ORDER

1. Heard the parties.

2. At the instance of respondent No.2, FIR No.73/1989 was registered against the petitioner in Kotwali Police Station, Fatehpur. On 06.11.1996, after investigation of the case, police submitted final report. Thereafter respondent No.2 filed a protest petition. The Magistrate on protest petition, after considering the evidence of the witnesses of inquiry, took cognizance under Sections 420 & 120B of IPC and directed that the police case will proceed and the learned Public Prosecutor would prosecute the case.

3. Both sides challenged the aforesaid order by filing separate revision petitions.

4. Revision petition of the petitioner was dismissed, however the revision petition of the complainant was allowed to the extent that case is made out for offence(s) under Sections 467, 468, 471 & 120B of IPC and the matter was remitted back to the learned Magistrate.

5. By the impugned order dated 19.10.2019, the learned Magistrate further took cognizance for offence(s) under Sections 467, 468 and 471 of IPC and by the same order, directed framing of charges for offence(s) under Sections 420, 467, 468, 471 & 120B of IPC.6. Learned counsel for the petitioner submits that the impugned order is a composite order. As required by law under Section 240 of Cr.P.C., opportunity of hearing before framing of charge was not given to the petitioner as the petitioner was not there at the time of passing of cognizance order on the same day, hence the subsequent portion of the order is vitiated in law.

7. Learned counsel for the complainant contends that such objection of the petitioner was considered and turned down by the learned Revisional Court in Criminal Revision Petition No.07/2021 decided on 20.03.2021.

8. Cognizance in a case is taken in exercise of power under Section 190 of Cr.P.C. and thereafter, it is decided whether the case is triable by a Court of Sessions or triable as warrant case by a Magistrate or is triable as summons’ case. Only then, the Magistrate decides the procedure to be followed.

9. In the present case, cognizance was taken for the offence(s) triable as warrant trial cases, therefore, provision of Section 240 of Cr.P.C. was applicable, which requires that upon consideration and examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which the Magistrate is competent to try and in his opinion could be punished by, he shall frame a charge against accused in writing. Evidently, the Magistrate did not allow opportunity of hearing before deciding to go with the framing of charge. As such the impugned order is not sustainable in law, hence the same is set aside and the matter is remitted back to court below to pass order afresh on framing of charge after hearing the parties consistent with the requirement of Section 240 of Cr.P.C.

10. Accordingly, the petition stands allowed.

11. Pending application/s, if any, also stands disposed of.