The central legal point established in the judgment is that the accused should be given an opportunity of hearing before the framing of charges, as mandated by Section 239 and Section 240 of Cr.P.C and supported by relevant case law.

The above revision is directed against the framing of charges in C.C.No.63 of 2006, dated 12.07.2007, on the file of the learned Judicial Magistrate No.II, Ponneri.

2. The main point that is urged in the above Criminal Revision case is that before framing the charges against the accused/petitioners herein, they were not given an opportunity of hearing at all. The entries in the A Diary which is available at page 7 of the typed set read as follows:

"12.07.2007:

A1 to A5 present. Charge framed. Question denied. Posted for trial W/s to LW.1 to 4 call on 24.07.2007."

The learned counsel for the petitioners submits that the above entry makes it very clear that before framing the charges no opportunity of hearing was given to the accused/petitioners and therefore, the charges are liable to be quashed and a direction may be given to the Trial Court to frame charges afresh after hearing the accused/petitioners.

3. In support of his above contention viz. the accused should be heard before framing of the charges, the learned counsel for the petitioners placed reliance on

(1) an unreported decision of Mr. Justice R. Balasubramanian, rendered in Crl.R.C.No.1306 of 2000 and Crl.O.P.No.16577 of 2000 ("Srivatsa Investment rep. by Thiagarajan and another ..vs.. State by Inspector of Police, Chennai"

(2) 2005 (1) SCC 568 (State of Orissa ..vs.. Debendra Nath Padhi)

(3) 2000 (2) SCC 57 (State of Madhya Pradesh ..vs.. S.B.Johari and others); and

(4) 1994 (4) SCC 142 (Minakshi Bala ..vs.. Sudhir Kumar and others)

4. Countering the said submissions, Mr. Hasan Mohamed Jinnah, Government Advocate (Criminal side) submits that a reading of the section 239 of Cr.P.C makes it very clear that the accused need to be heard only if the learned Magistrate is of the opinion that the facts and circumstances of the case warrant such a hearing of the accused and it is not mandatory on the part of the learned Magistrate to hear the accused before framing the charges.

5. I have carefully considered the above said submissions made on either side.

6. In the decision reported in 2005 (1) SCC 568, referred to supra, in paragraph 7, the Apex Court has observed as follows:

"7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate to consider "the police report and the documents sent with it under Section 173" and, if necessary, examine the accused and after giving the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof." (underlining supplied)

In paragraph 16 it is observed as follows:

"16......This aspect, however, has been adverted to in State Anti-Corruption Bureau v.

P. Suryaprakasam where considering the scope of Sections 239 and 240 of the Code, it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. "

In the decision reported in 1994 (4) SCC 142, in paragraph 6, it is observed as follows:

"6. Having regard to the fact that the offences, for which charge sheet was submitted in the instant case and cognizance taken, were triable as a warrant case the Magistrate was to proceed in accordance with Sections 239 and 240 of the Code at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 Cr.P.C and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge t