1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1924 of 2010 Ravindra Shriramji Lakde ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Morshi, Dist. Amravati. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.V.Sirpurkar, Advocate for the applicants Mrs. M.H.Deshmukh, A.P.P. for respondent/State. CORAM : Prasanna B. Varale, J. DATED : 28 th Febru ary , 2011 . Heard Mr. S.V.Sirpurkar, learned Advocate for the applicants and Mrs. M.H.Deshmukh, learned APP for respondent/State. By this Application, the applicants are challenging the order dated 24/8/2010, passed by the learned Judicial Magistrate, First Class, Court No.2, Morshi in Criminal Case NO. 78/2009. This is a second round of litigation preferred before this Court. Mr. Sirpurkar, learned Advocate for the applicants invited my attention to the order dated 27/8/2009 passed by this Court (Coram : R.Y.Ganoo, J.) in earlier round of litigation i.e. Criminal Application No. 2057/2009 and submitted that the grievance of the applicant was that the learned trial Judge has, without assigning any reason has passed the order and while considering the application, this Court vide order dated 27/8/2009, particularly at para 6, observed that - “6. It was incumbent upon the learned trial Judge to hear the applicants in accordance with the provisions of Section 239 of the Criminal Procedure Code on the charge sheet and then to decide whether any charges are required to be framed, pass a short speaking order and then proceed to frame the charges, if at all, charges were 2 required to be framed. This has not been done and hence the charge framed against the applicants is bad in law and is required to be set aside. There is one more reason to quash the charge at Exh.23. The learned trial Judge, in the first place, recorded plea of the applicants, thereafter framed the charge and then again recorded plea of the applicants. I am unable to know as to how this procedure was followed. It was necessary for the learned trial Judge to first frame the charge and thereafter record plea of the applicants. It is inconceivable that the Court will first record the plea of the applicants, then frame the charge and then again record the plea. The course adopted by the learned trial Judge is patently illegal and not in confirmity with the provisions of the Code of Criminal Procedure. It this be so, this is one more ground to set aside the charge vide Exh.23”. This Court, by order dated 27/8/2009, had directed the learned Judicial Magistrate, First Class, Court No.2, Morshi to hear the learned prosecutor, the learned Advocate for the applicants on the strength of the charge sheet and arrive at a decision whether any charge is required to be framed. For that decision, he shall consider the entire record on merits of the matter and pass a short speaking order and thereafter frame charge, if any, in accordance with the provisions of law and then record plea of the accused. Mr. Sirpurkar, learned Advocate submitted that the applicants, in view of the directions of this Court, moved an application before the learned Magistrate for seeking discharge. He further submitted that there were as many as eight grounds raised in the application, more particularly ground ‘C’ - clubbing of offences, ground ‘E’ - authority of the District Supply Officer, grounds ‘F’ & ‘G’ - about the investigation conducted by an officer below the rank of Sub-Inspector and in view of the judgment in the case of Laxmikant 3 Sarda .vs. State of Maharashtra, reported in 2002(2) Mh.L.J. 471, if the enquiry is conducted by the officer below the rank of Sub- Inspector, it is one of the grounds of challenge. The learned Advocate submitted that though on these grounds the application was moved, the learned Magistrate has committed the same error again and without considering the grounds raised in the application, passed the order dated 24/8/2010. Learned Advocate for the applicant, therefore, prayed for quashing and setting aside the said order dated 24/8/2010. Mrs. Deshmukh, learned APP for the State has filed the reply. It is not in dispute that the learned Magistrate in the order dated 24/8/2010, without giving any reason, simply rejected the application inspite of the directions issued by this Court vide order dated 27/8/2009. Perusal of the order impugned reveals that the learned Magistrate has not at all considered the grounds raised in the application. The only ground considered by the learned trial Judge is the ground of delay in filing the charge sheet and observed that the delay in filing charge sheet gives the accused the right of bail under under Section 167(2) of Cr.P.C., but not a ground for discharge. It is also not in dispute that this Court by order dated 27/8/2009 expected that the learned Magistrate after considering the material, shall pass a short speaking order, but unfortunately, the same mistake is committed by the learned Magistrate again. Mr. Sirpurkar, learned Advocate for the applicants fairly submitted that the matter may be remanded to the learned Magistrate for considering the application on merits afresh by giving opportunity to the applicants. Mrs. Deshmukh, learned APP also fairly accepts the position. In the result, the impugned order dated 24/8/2010 passed 4 by the learned Judicial Magistrate, First Class, Court No.2, Morshi, Dist. Amravati in Regular Criminal Case No. 78/2009 (State .vs. Malviya and others), Below Exh.30 is hereby quashed and set aside. The learned Magistrate to decide the application (Exh.30) afresh by giving opportunity of hearing to the parties and considering the earlier order passed by this Court, dated 27/8/2009 in Criminal Application NO. 2057/2009. The application be decided as early as possible and preferably within a period of three months from the date of receipt of communication of this order. Criminal Application is disposed of in above terms. JUDGE Diwale