Heard Sri Rakesh Thapliyal, learned counsel for the petitioner.

2. Sri Arvind Vashistha, Advocate appearing for the respondent. Short counter affidavit filed on behalf of respondent is taken on record.

3. By way of present petition charges framed by learned Trial Court u/s 420, 467, 468, 471 I.P.C. vide order dated 20.08.2008 and Revisional Court’s judgment dated 15.09.2009 are being assailed.

4. Both the counsels fairly stated that neither accused nor prosecution were heard before framing the charges. Both the counsels fairly stated that Magistrate has failed to record his opinion.

5. Sections 239 and 240 of Code of Criminal Procedure are as under :-

239. When accused shall be discharged – If, upon considering the police report and the document sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge – (1) If, upon such consideration, examination of 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 such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charges or claims to be tried.

6. From the perusal of the section 239 and 240 Cr.P.C., I find that hearing is must before framing the charges. From the reading of section 239 & 240 Cr.P.C., it can safely be held that the Court shall consider the police report and documents sent with it under section 173 Cr.P.C. and shall hear the accused and the prosecution to form an opinion as to whether charges against the accused are groundless or should be framed. Hearing before the framing of charges as required under section 239 and 240 Cr.P.C. is sine qua-non for valid trial. No formal application is required to move to argue on the question of discharge. If Magistrate hears the accused and prosecution for the framing of charge then obviously accused can argue on the point of discharge.

7. Apex Court in the case of Dilwar Balu Kurane Vs. State of Maharashtra reported in (2002) 2 SCC 135 in para 12 has observed :-

“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing of charges under the said section has the undoubted power to sift and weight the evidence for the limited purpose of fining out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

8. Apex Court in the case of Lalu Prasad Vs. State of Bihar reported in (2007) 2 SCC 49 has observed in para 15 as u