P J JAMES Vs. P J JOSEPH

JUDGEMENT

(1.) The grievance of the petitioner is that he has not been given an effective opportunity to argue for a discharge under Section 239 Cr.P.C. Cognizance has been taken of the offence allegedly committed by him, inter alia, under Sections 406 and 420 I.P.C. The petitioner claims that he wanted to argue for discharge. When the case was initially pending before the J.F.C.M.-I, Ernakulam he had wanted to argue for a discharge and according to the counsel for the petitioner the learned Magistrate had in fact heard him on the question of framing the charges. But no decision was taken. The case was later transferred to the Court of J.F.C.M.-I, Kochi. There, according to the petitioner, charges have been framed without giving him an opportunity to be heard in detail. The petitioner had wanted to advance the arguments. He had in fact filed an application to claim discharge under Section 239 Cr.P.C. but an effective opportunity for being heard was not given.

(2.) Report of the learned Magistrate was called for. The learned Magistrate submits that the petitioner had not pressed for hearing on charge/discharge. The learned Magistrate reports that the petition claiming discharge is available in the file of the Court. But the learned Magistrate contends that there is nothing to show that it was properly filed before Court.

(3.) Be that as it may, I am not entering into the controversy as to how that petition found its way to the file of the Court. I am satisfied that the petitioner deserves to be granted a further opportunity to argue for discharge. The order framing charges has got to be set aside and the learned Magistrate must be directed to give opportunity to the petitioner to argue for a discharge under Section 239 Cr.P.C.