ANGUSAMI Vs. KALEESWARAN AMBALAM

JUDGEMENT

(1.) THIS revision is directed against the order of the learned Sessions Judge, Ramanathapuram Division at Madurai, in Crl. R. P. No. 19 of 1983, which was preferred against the order made by the learned Judicial Second class Magistrate, Sivaganga, in C. C. No. 117 of 1981 on his file.

(2.) THE brief facts which led to the filing of this revision are as follows: On a complaint given by the first respondent in this revision alleging that the revision petitioners committed theft of the standing crops raised in the field bearing S. No. 175/4 measuring 22 cents, a case was registered in Crime No. 43 of 1981 of Kalayarkoil Police Station. THE second respondent forwarded the final report to the Magistrate as contemplated under sec. l73 (2) of the Code of Criminal Procedure, hereinafter referred to as the'code', on completion of investigation. THE learned Magistrate, upon considering the police report and the documents sent under Sec. 173 of the Code and also some documents filed by the accused-revision petitioners during their examination and after affording the prosecution and the accused an opportunity of being heard, discharged the accused-revision petitioners under Sec. 239 of the Code, on the ground that the charge levelled against the revision petitioners was groundless. Challenging the said order of discharge, the first respondent preferred a revision (Crl. R. P. No. 19 of 1983) before the learned Sessions judge, Ramanathapuram, who set aside the order of discharge holding that there was no scope for the Magistrate to consider the documents filed by the accused revision petitioners at the stage of the examination of the accused under sec. 239 of the Code and directed the Magistrate to frame the charge if he is of opinion on a consideration of the documents and examination of the accused that there is ground for presuming that the accused have admitted an offence and decide the case in accordance with law. Aggrieved against the said order of the learned Sessions Judge, this revision has been preferred by the accused.

(3.) THE further argument of Mr. Selvam is that the consideration of any document produced by the accused at the stage of proceedings under Sec. 239 not only satisfies the requirements of that section, contemplating an opportunity of being heard given to the prosecution as well as to the accused, but also to avoid abuse of the process of law, lest the use of the said expression "after giving the prosecution and the accused an opportunity of being heard", would become an empty formality. According to him, Sec. 235 will have some bearing on the interpretation of this expression occurring in Sec. 239. To strengthen this argument, he referred to certain decisions. THE first decision is Santa Singh v. State of Punjab, (1977)1 S. C. R. 229: A. I. R. 1976 S. C. 2386, wherein the Supreme Court has stated thus: "the hearing on the question of sentence would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularry to the accused, to produce material in regard to various factors bearing on the question of sentence and, if necessary, to lead evidence for the purpose of placing such material before the court. "