^s HIGH COURT OF CHHAmSGARH AT BILASPUR APPLICANTS fACCUSEDS) CR.M.P. No. 601/2009 1. Punishottam MaU, aged about 55 yeai's, S/o Shri Ahaiao Mali, Occupation ~ Agriculture, R/o Village-SaraipaU, Thaiia-Barainkela, Tahsil-Sai'aagarh, District-Raigarh (C.G.). 2. Niraiyan Aghanya, age8 about 50 years, S/o Shri Naadlal Aghaiiya, Occupation- Agriculture, R/o ViUage Kuinhari, Thana Baramkela, TahsU Sarangarh^ Distnct-Raigarh (C.G.). NON-APPLICANTS (COMPLAINANT) VERSUS 1. ACCUSED 2. 3. Lochan Prasad Patel, aged about 75 years, S/o Shri Purushottami Patel, R/o ViUage-Chhote SajapaM, Thaaa &> Tahsil-Saraipali, Distdct-Mahasamiind (C.G.). The State of Chhattisgarh, Through The Distdct Magistrate, Raigarh. Purnachand MaU, aged about 60 years, S/o Shri Anamo MaM, Occupation ~ Agriculture, R/o Village-Saraipali, Theiia Baraisikela, TahsU Saraagarh, District Raigarh (C.G.). (died). CRIMINAL MISCELLANIOUS PBTITION UNDER SECTION 482 OP THB CRIMINAL PROCBDURE CODE. 1973. |SB :Hon?ble Mt. T.P.Sharma, J.) Present: Shri Roop Naik, Advocate for the petitioners. Shri Neeraj Mehata, P.L. for the State/ respondent N0. 2. Respondents No. 1 85 3 not noticed. ORAL- ORDER (Passedoa 09/12/2009) This petition under section 482 of the Code of Cnmmal Procedure, 1973 (in short 'the Code) is for quashment ofthe order dated 31/3/09 passed by the Additional Sessions Judge, Saraagarh, District Raigarh m ciimmal revision N0. 22/2007 affhinmg tlie order frammg charge dated 15/6/07 passed by tfae Judicial Magistoate First Class, Saraiigai'h m crimmal complamt case No. 392/02 whereby after exaoimmg fhe witaesses before charge leanaed Judicial Magistrate 1. -^ ^^^i First Class, Saraiigarh has fraaied the charge of the oflTence punishable under Section 420/34 offhe Indiaa Penal Code against fhe petitioners, 2. Learaed counsel for tlie petitioners subinits fhat respondent N0. 3 Pumachaad MaU has died. 3. Quashinent is prayed on fhe ground that without coinplyiag fhe provisions of Section 245(1) of ftie Code Court below has framed the charge and fhereby coiainitted aii illegality. 4. Brief facts necessary for disposal of this petition is at the iiistance of respondent N0. 1 coinplamt case has been registered agaiast the petitionei-s for the ofience punishable under Sections 420 & 34 of fhe Indiaa Penal Code after summonmg the accused persons Court below has exaaiiaed fhe witaesses before charge iti accordaixce wifh the provisions contaiaed ia Chapter -XIX-B offhe Code aad after closiag of fhe evidence of the coniplainant before chai'ge Court below has framed fhe charge agaiast fhe petitioners. 5, Leamed coiuisel for fhe petitiouer aad learaed counsel for fhe State are heard, 6. Order impugned, copy of the evidence of fhe witaesses, copy of flie complahit, copy ofthe order offhe trial Court perused. 7, Learaed counsel for fhe petitioners subiaits that Coiirt below has not considered flie case at fhe time of fraoamg of fhe cliarge m accordance witli fhe provisions contaiaed ia Section 245 (1) offhe Code. 8, On fhe ofher haad, learaed counsel for the State/respondent N0, 2 opposed tlie petition and subniits tliat petitioners have not been able to ijaiake oiit an exceptional case for iavoking extraordiaaiy iaherent jurisdiction. 9, Order dated 15/6/07 reveal that after peiTisiag of fhe docunxents and case Judicial Magistrate Fu'st Class, Saraiigarh has framed the charge I .^?s^. ^ ^j .// J— &2-J .c p to^p on the basis of prmia facie case against fhe petitioners plea of fhe petitioners were recorded aad case was posted for evidence before charge. 10, Copy of the docunients, statenient of the witaesses reveal that learaed Judicial Magisti-ate First Class, Saraagarh has recorded the statement of Lochaii Prasad, Parmaaaad Patel, Jagatram Patel, Jogmder, Jagatram Sitigh before heamig on charge ia accordance wifh Secton 244 of fhe Code. Therefore, fhere was no propriety for agaiii fixiag fhe case for evidence before charge aad even when charges framed fheii fhere was no stage for fixing fhe case for evidence before charge. 11, The case is based ou coinplamt speci&c procedure in terms of Chapter - XIX-B of fhe Code has been provided by fhe Legislature which provides fhe evidence before charge an.d after takiag such evidence before charge Court is required to hear the party aad passed the order frainio.g charge or order of discharge ia accordaace witih. the provisions of Sub Section - 1 ofSection 245 ofthe C^de. 12. Consideration ofCharge under Sections 245(1), 239 & 240 ofthe Code ai'e different aiid not one aiid same. At Uie time of framing charge ui terms of Sections 239 & 204 of fhe Code prinia facie niaterial for fraoiiag of the charge, strong suspension fhat accused had comraitted aa offence are sufficient for frammg charge but after recoixlnig the evidence before charge the consideration for franiing charge is not simUar as regard under Sections 239 & 240 of fhe Code. At fhis stage tlie Magistrate is requuled to evaluate fhe evidence recorded under Section 244 that whefher fhe evidence agaiast the accused if unrebutted would warraat fhe conviction of tlie accused fhen charge inav be framLed iateraUa if the evidence recorded under Section 244 of •'^ '%,. -tflt'. 1 :""""^% I t^— ^>. fhe Code would not be sufficient for conviction of fhe accused if unrebutted fhen Court is under obUgation to discharge tiie accused. 13. The order passed by fhe trial Court reveals that Court below has not exammed fhe evidence aad its quality ia the Ught of Sub Section 1 of Section 245 of fhe Code aad has framed fhe charge only considering fhe case specially fhe docuiaents on fhe basis of prinia facie niaterial which is not sufiicient for framing ofthe charge under Section 345(1) of the Code. Leamed Judicial Magistrate First Class, Saraagarh has patently committed aa Ulegality, ftie order is not sustamable under the law. 14, Consequently, petition is allowed. Order iinpugned affinixuig fhe order dated 15/6/07 passed by fhe Judicial Magistrate First Class, Sai'an.garh aad fhe order dated 15/6/07 passed by fhe Judicial Magistrate First Class, Saraagarh is hereby quashed and case i^ reraitted back to fhe Court of Judicial Magistrate First Class, Saraagarh for providmg aii opportanity of heariag to the parties and to pass fhe order afresh ui tenns of Section 245(1) of the Code of Crimmal Procedure, 1973. Certified copy as per rules. Sd/- T.P. Sharma Judge ^. ^,