(1.) This is a petition under section 482. Cr. P.C. arising from an order dated 8.3.1982 passed by the learned Judicial Magistrate of the first class, Imphal West, Central District in Cr1. (P) Case No. 116 of 1981 instituted on a police report against the petitioner and two other persons. The learned Magistrate passed the order framing a charge under section 380/311, IPC against the petitioner and two others. The charge framed against the petitioner and two others under section 380/34, IPC is that on 16.8.1981 at 12.00 mid-night in collusion committed the theft of some parts of Sugar-cane grinding machine from the house of informant, Laishram Ibotombi Singh of Lamdeng Khunou, The petitioner and others pleads not guilty. Out of the three accused the petitioner Sanasam Indra Singh has questioned the order of framing of charge against him.
(2.) Section 239, Cr. P.C. provides for, when an accused shall be discharged. Section 240, Cr. P.C. is a provision for framing charge against an accused. Section 239, Cr. PC runs: If, upon considering the police report and the documents sent with it under sec. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless he shall discharge the accused, and record his reasons for so doing. and section 240, Cr. P.C. provides: (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.T (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. A close reading of the sections 239 and 240 together shows that there must be incriminating material or materials for presuming that the accused has committed an offence triable under Chapter XIX, Cr. P.C. for framing a charge against the accused, otherwise a charge against the accused would be groundless and the accused shall be discharged. In other words, if there is no incriminating material words, if there is no incriminating material then the charge against the accused would be groundless and there would be no ground for presuming that the accused has committed an offence triable under Chapter XIX, Cr. P.C. This view finds support from the decision of the Supreme Court in Century Spinning and Manufacturing Co. Ltd. v. The State of Maharashtra. The Supreme Court in that case observed: Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless. If the charge against the accused would be groundless, the High Court in the exercise of its power under section 482, Cr. P.C. can quash the proceeding against the accused in the initial stage for the reasons that the order framing the charge/charges does substantially affect the persons liberty and as such the court must not automatically frame the charge. The Court has to judicially examine the materials. In State of Karnataka v. L. Muniswamy, the Supreme Court held: the order framing the charge affects a personTs liberty substantially and, therefore, it is the duty of the Court to consider judicially whether the material warrants the framing of the charge. (emphasis added)
(3.) The learned counsel for the petitioner, Mr. Ch. Nengal Singh submits that the materials appearing against him are: 1. the name of the petitioner is mentioned in the FIR, and 2. the petitioner was seen along with the other two near the place of occurrence on the day of occurrence before the occurrence. He submits that these are not incriminating materials and that even if these are taken to be incriminating materials the charge against the petitioner would be groundless. Therefore the petitioner should be discharged under section 239, Cr. P.C. The learned Public Prosecutor submits that the owner of the parts of the machine. Ibotombi Singh lodged the FIR against the petitioner and the two others with the Officer-in-charge of Lamsang Police Station. He further submits that in tile FIR it was stated that the petitioner and the two others had committed theft of the said parts. I have perused the no and the Statement of Ibotombi Singh under section 161, Cr. P.C. He is not an eye-witness. The Statement under section 161, Cr. P.C. supports the submission of the counsel for the petitioner. The FIR is not a substantive evidence. It can only be used to contradict or to corroborate the evidence of the informant. The fact that the petitioner was seen in company with the two others near the place of occurrence on the day of occurrence before the occurrence does not warrant the framing of the charge.