RAMACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) CRL. R. P. 64/83 is by the first accused and the other by the second accused. They were convicted and sentenced by the Judicial First class Magistrate, Manjeri in CC 231/79 for rigorous imprisonment for six months each for offences punishable under S. 408, 409 and 477a IPC directing the sentences to be suffered concurrently. Criminal Appeals filed by them were dismissed.

(2.) THEY were respectively Cashier and Accountant in the manjeri Cooperative Urban Bank. The charges are temporary misappropriation of rs. 250/ remitted by pw. 4, a subscriber of kuri conducted by the Bank, on 2-3-1976 towards instalment and falsification of accounts in relation to that amount.

(3.) THIS is a warrant case instituted on a police report. S. 238 to 243 of the Code of Criminal Procedure appearing in Chap. 19 deal with the procedure for the trial of such cases. In the same chapter S. 244 onwards deals with the procedure for trial of warrant cases instituted otherwise than on police report. In a warrant case instituted on a police report, after satisfying that the provisions of S. 207 are complied with, the Magistrate has to consider the police report and the documents sent with it under S. 173. If he thinks it necessary he can examine the accused also. In this connection he will have to give the prosecution and the accused an opportunity of being heard. All these are for the purpose of considering whether the charge is groundless or whether there is ground for presuming that the accused committed an offence triable under that chapter which be is competent to try and adequately punish. If upon such consideration, examination, if any, and bearing the Magistrate finds the charge groundless he will have to discharge the accused without framing charge. Otherwise he will have to frame a charge in writing which will have to be read over and explained to the accused and his plea recorded. Recording of the prosecution evidence could only be thereafter. Defence evidence, if any, comes in only subsequently. The consideration, examination, if any, and hearing provided in S. 239 and 240 and the consequent satisfaction are conditions precedent to the framing of charge. Only after such satisfaction the Magistrate cm frame the charge and only after framing charge trial could commence. Application of the mind of the Magistrate and the consequent framing of charge alone invests him with authority to try the accused for the offence. If the charge is groundless the accused has a right to be discharged. Charge is not an empty formality. It is the basic record which gives notice to the accused on what accusation he is going to be tried so that be could shape his defence accordingly. When there is no charge and when no charge is read over and explained to the accused, legally he has no notice on what accusations he is being tried. In such cases it is no trial at all and the trial is vitiated. No prejudice need be proved in such cases. It is not a case of irregularity and there is no question of irregularity being cured under S. 464 or 465.