{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.340 OF 2009 Ramesh s/o Mansingh Patil Age-55 years, Occ-Agril R/o Jaukheda, Tq & Dist-Jalgaon APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr.H.F.Pawar, Advocate for applicant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 14 th December 2009 ORAL JUDGMENT: 1. By the present revision application, the applicant has challenged the charge framed by Additional Sessions Judge, Aurangabad in Sessions Case No.330/2009. 2. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3. Learned counsel for applicant as well as learned APP took me through the papers annexed with the revision application. 4. It appears that the applicant, along with 4 others, was {2} charge sheeted by Soygaon police station for an offence punishable u/s 498-A and 302 r/w 34 of the IPC. Original accused No.1 and 2 are in custody, while remaining accused, including present applicant, are on bail. From the Roznama of the sessions Case, it is pointed out that the charge came to be framed on 9th November 2009 whereas the appearance on behalf of present applicant came to be filed on 13.11.2009. 5. Chapter XVIII of the Criminal Procedure Code speaks about the procedure to be followed before the Court of Sessions during the trial. Section 226 speaks in respect of opening of the case for prosecution while section 228 speaks for framing of charge and section 227 speaks for discharge. The combined effect of sections 226, 227 and 228 makes it clear that the case to be opened by the public prosecutor by addressing the Court u/s 226 by demonstrating the evidence recorded during the investigation. While framing the charge, learned Sessions Court also requires to hear defence u/s 227 of the Cr.P.C. And after hearing both the sides, if the Court comes to a conclusion that prima facie material is gathered during investigation enabling the court to frame charge under certain sections, for which the accused is facing charges then the Court to frame charge against the accused. 6. From perusal of Roznama it is clear that at the time of framing of the charges, neither the prosecution was heard u/s 226 of the Cr.P.C. nor the defence was heard u/s 227 of the Cr.P.C. No {3} doubt, it is a procedural lapse only, which can be said to be a technical lacuna, however, hearing of the defence is an opportunity to the defence, if defence wants to pray for discharge either from entire acquisition or from certain charges to be framed u/s 228 of the Cr.P.C. In absence of this opportunity being given to the defence, which amounts to denial of opportunity to pray for discharge at the time of framing of the charges, the order appears to be erroneous. 7. It is clear that this opportunity does not appear to be given to the defence. In the premise, the revision succeeds. The order of framing of charge against the present applicant in Sessions Case No.330/2009 is hereby quashed and set aside and the matter is remitted back to the Court of Sessions. It is informed that the next date of hearing before the Sessions Court is 28.12.2009. The applicant to appear before the lower court on 28.12.2009 and after hearing the applicant and public prosecutor, the learned Additional Sessions Judge on whose file Sessions Case No.330/2009 is pending to decide, in accordance with law, as to whether any charge to be framed against the applicant or not. 8. Rule is thus made absolute on the terms indicated above. C.C. Expedited. [A.V.POTDAR, J.] {4} drp/crirev340-09