BASKARAN Vs. STATE

JUDGEMENT

(1.) THE petitioners were originally charge sheeted for the offences under Secs.448, 323 and 326 read with 109, I.P.C. After framing charges for the said offences in C.C. No. 81 of 1998 on the file of the Judicial Magistrate, Udhagamandalam, the respondent police filed amended charge sheet for including the offence under Sec. 307, I.P.C. Accordingly, the said charge sheet was entertained and the Calendar Case in C.C.No. 81 of 1998 was converted as P.R.C.No.7 of 2000 in order to commit the accused to Sessions, as Sec. 307 is triable by the Sessions Court At that stage, the petitioners filed an application under Sec. 239, Crl.P.C. for discharge. THE Committal Court on considering the said petition and the submissions from both parties dismissed the petition and posted for committal. Having aggrieved by the refusal to discharge them, the petitioners have preferred this revision.

(2.) MR. Jagadeeswaran, the learned counsel for the petitioners, on the strength of the decisions in Raj Kishore Prasad v. State of Bihar , 1996 Crl.L.J. 2523 (S.C.) and Gobinda Chandra Kaur v. State of Orissa , 2002 Crl.L.J. 515 would submit that after framing of the charges, entertaining the amended charge sheet and converting the Calendar Case as P.R. case and proceeding towards the committal after dismissing the application for discharge under Sec. 239, Crl.P.C. is illegal, as Sec. 216, Crl.P.C. providing for alteration of the charge would not apply to this case and as such, the order dismissing the petition for discharge is not valid and therefore, the impugned order has to be set aside and the petitioners are liable to be discharged.

(3.) SEC. 239, Crl.P.C. would come into play only when the accused requests the Court to discharge in respect of particular offence when no evidence for constituting that offence is available. Furthermore, such a request can be made by the accused only to the Court, which is competent to frame the charge for the said offence. Admittedly, the offence alleged against the petitioners is under SEC. 307, I.P.C, which is triable by the Sessions Court. Therefore, the question of discharge under SEC. 239, Crl.P.C. in respect of the offence under SEC. 307, I.P.C. before the Judicial Magistrate would not arise. Hence, the very application filed by the accused, which culminated in the impugned order is not maintainable under law.