SARABJEET Vs. STATE

JUDGEMENT

(1.) This is a petition under Section 482 of the Code of Criminal Procedure for quashing the order dated 19th January 2007, whereby cognizance was taken and subsequent order dated 24 th July 2007 whereby notice envisaged under Section 251 of the Code of Criminal Procedure was given to the petitioner for the offence punishable under Sections 323 and 325 of IPC read with Section 34 thereof.

(2.) A perusal of the order dated 24th July 2007 would show that the learned Metropolitan Magistrate passed a speaking order stating therein that prima facie case is made out for the offence under Sections 323/325/34 of IPC. Thus, the learned Metropolitan Magistrate prima facie took the view that not only the offence under Section 323 but also offence under Section 325 of the IPC was made out against the petitioner. Despite that, he chose to frame a notice under Section 251 of the Code of Criminal Procedure, instead of framing charge against him.

(3.) The offence under Section 325 of the Code of Criminal Procedure, being punishable with imprisonment upto 7 years and fine, is a Warrant Trial Case, though the offence under Section 323 is a Summons Trial Case. The procedure for trial of Warrant Cases, by Magistrate, has been prescribed in Chapter XIX of the Code of Criminal Procedure. Section 238 of the Code provides that when, in any Warrant Case, instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207, which requires copies of documents, statements, charge sheet, etc. to be supplied to the accused. Section 239 of the Code provides that if on considering the police report and the document sent with it under Section 173 of the Code, and examining the accused, if the Magistrate thinks necessary, and after giving opportunity of hearing to the prosecution as well as to the accused the Magistrate considers the charge against the accused to be groundless, he shall discharge him, after recording his reasons for discharging him. If, however, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, he shall accordingly frame charge against the accused. Thus, in a Warrant Trial Case it is mandatory for the learned Magistrate to hear not only the prosecution, but also the accused before he decides whether to discharge or to charge him.