NAGESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned Counsel for the petitioners and learned Additional Public prosecutor representing the State.

(2.) The provision, under Sec. 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), is an important protection available to a person made accused in a criminal case, to claim that the accusation against him are groundless and on that ground, charge should not be framed against him. The said provision casts upon the Magistrate an obligation for consideration of the police report and documents sent with it under Sec. 173 of the Code, after giving the prosecution and the accused an opportunity of being heard, on a plea of discharge being taken by an accused.

(3.) The words "considering the police report and documents sent with it under Sec. 173 of the Code" and provision for allowing the prosecution and the accused an opportunity of being heard prior to framing of the charge indicates that any order passed in exercise of power conferred under Sec. 239 of the Code, must show application of judicial mind.