ORAL ORDER

[1.0] RULE returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 – State of Gujarat. Wit the consent of learned advocates for respective parties, present petition is taken up for final hearing today.

[2.0] By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the petitioner has prayed to quash and set aside the impugned order dated 02.01.2024 passed by the learned Sessions Court, Patan in Criminal Revision Application No.58 of 2023 and order dated 23.10.2023 passed below Exh.3 by the learned Principal Civil Judge and JMFC, District Patan framing charges in Criminal Case No.1157 of 2023 arising out of FIR being CR No.11217041230160 of 2023 registered with Saraswati Police Station, Patan.

[3.0] It is the case of the petitioner that an FIR being CR No.11217041230160 of 2023 came to be registered with Saraswati Police Station, District Patan for the offences punishable under Sections 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). Pursuant to the investigation, charge-sheet came to be filed which culminated into Criminal Case No.1157 of 2023.

[3.1] The petitioner was an under-trial prisoner and on 23.10.2023 charge came to be framed without giving an opportunity to the petitioner to engage a lawyer. The said order dated 23.10.2023 came to be assailed by the petitioner by way of filing Criminal Revision Application No.58 of 2023, which came to be dismissed.

Hence, present petition.

[4.0] Heard learned advocates appearing for the respective parties.

[5.0] Perusing the record it appears that it is an admitted fact that during the aforesaid period the petitioner was an under-trial prisoner and within 5 days he was unable to engage an advocate. Perusing the rojkam, it appears that the petitioner – accused is released on bail on 04.11.2023. Thus, during the period when the petitioner was an under-trial prisoner, the charge came to be framed.

[6.0] It is the duty of the Court to give ample opportunity of being heard to the accused before framing of the charge. Herein, the petitioner remained unrepresented before the learned trial Court as he was unable to engage a lawyer. It was the duty of the learned trial Court to provide legal aid as the petitioner was entitled to get assistance of lawyer and the legal aid as an under- trial prisoner though such opportunity is not being given and though the petitioner was under-trial prisoner, hurriedly the charge has been framed without affording an opportunity to the petitioner represent his case.

[7.0] It is needless to say that the framing of charge is a serious matter. It is mandate of the CrPC that charge must be framed after giving an opportunity of hearing to the accused. The mandate must be followed in its true letter and spirit. This Court is of the considered opinion that the right of accused of being heard before framing of charge is mandatory. Herein, no opportunity is given to the accused of being heard. The provisions of CrPC also put an obligation on the part of Court to hear the submission of accused and the prosecution before framing the charge. Framing of charge is not an empty formality. The trial Courts are bound to comply with the provisions of law in its true letter and spirit.

[8.0] Considering the aforesaid fact on record, prima facie, it appears that though the petitioner was an under-trial prisoner, he was not afforded an opportunity to be represented by a lawyer while the charge is framed. Thus, it appears that the present petitioner is deprived of his legal right to defend his case and give an answer of the alleged charge. As no opportunity is availed to the petitioner, the impugned orders passed by both the Courts below deserve to be quashed and set aside.

[9.0] In view of aforesaid discussion, present petition is allowed.

Impugned order dated 23.10.2023