abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 96 OF 1999 1. Pramod Narayan Bandekar 2. Shailendra Sukhdeo Chavan .. Petitioners V/s The State of Maharashtra .. Respondent Mrs.Sunita Sharma i/b Mr.S.V. Marvadi for the petitioners. Mr.U.V. Nikam, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 7TH JANUARY 2008 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. Heard the learned counsel for the petitioners and the learned A.P.P. for the State. 2. This revision application is directed against the judgment and order dated 25th February 1999 passed by the Additional Sessions Judge, Thane allowing the Criminal Revision Application No.15 of 1998 filed by the respondent State. By that judgment, the learned Sessions Judge set aside the order of the Judicial - 2 - Magistrate, First Class, Thane allowing the application of the applicants for discharge from the charges framed under section 304A read with section 34 of the Indian Penal Code. 3. The facts in brief are that in the year 1996, Thane Municipal Corporation contemplated to construct an over-bridge in Kisan Nagar No.2, Thane. The contract for construction of the over-bridge was given to the petitioners. A high tension electric line of Maharashtra State Electricity Board (MSEB) was passing over the place where the overbridge was to be constructed. On 27th June 1996, while working on the construction of the over-bridge, one of the labourers, viz. Suresh Pagare, sustained electric shock from high tension electric line and fell on the ground. He sustained severe electrical burn injuries and while undergoing medical treatment succumbed to the injuries. A letter was written by the Thane Municipal Corporation to the police alleging that the death of Suresh Pagare was caused by negligence of the petitioners. Police thereafter investigated the complaint and filed a charge-sheet/report under section 173 of the Code of Criminal Procedure (for short "the Cr.P.C.") against the petitioners. After notice to the petitioners and after considering the material produced before him, the - 3 - learned Magistrate framed the charge against the petitioners on 25th July 1997 under section 304A read with 34 of the I.P.C. The case was thereafter adjourned for evidence to 16th August 1997, 19th September 1997 and 15th October 1997. On 15th October 1997, the petitioners filed an application praying that they should be discharged under section 239 of the Cr.P.C. The State opposed the application firstly on the ground that once the charge was framed by the Magistrate, there could be no order of discharge without recording of evidence of the prosecution. It also opposed the application on merits and submitted that there was sufficient material on record for framing the charge against the petitioners and the accusations against them were not groundless and, therefore, there was no question of discharge of the petitioners. 4. Relying upon the decision of a learned Single Judge of this Court in Baburao Hari Pawar v. State of Baburao Hari Pawar v. State of Baburao Hari Pawar v. State of Maharashtra, reported in 1987 Cri.L.J. 584 Maharashtra, reported in 1987 Cri.L.J. 584 Maharashtra, reported in 1987 Cri.L.J. 584, the learned Magistrate held that the petitioners could be discharged at any stage and an application for discharge can be made at any time even after the charge was framed under section 239 of the Cr.P.C. On merits, the learned Magistrate held that the material on record showed that the charge of negligence against the petitioners was - 4 - groundless and, therefore, the petitioners were entitled to be discharged. He accordingly allowed the application of the petitioners and passed the impugned order discharging the petitioners. 5. Aggrieved by the order of the learned Magistrate, the State filed a revision in the Sessions Court, Thane. By an order dated 25th February 1999, the learned Sessions Judge reversed the decision of the learned Magistrate. Relying upon the decision of the Supreme Court in Ratilal Bhanji Mithani v. State of Ratilal Bhanji Mithani v. State of Ratilal Bhanji Mithani v. State of Maharashtra, reported in AIR 1979 SC 94 Maharashtra, reported in AIR 1979 SC 94 Maharashtra, reported in AIR 1979 SC 94, the learned Sessions Judge held that once a charge was framed, the Magistrate had no power under section 227 of the Cr.P.C. or under any other provision to cancel the charge and discharge the petitioners. He further held that at the time of framing the charge, the Magistrate had prima facie found enough material against the petitioners for framing of the charge and the Magistrate could not have taken the different view subsequently to come to the conclusion that the accusations against the petitioners were groundless. Consequently, the learned Sessions Judge set aside the order of discharge and directed the Magistrate to proceed in accordance with law. That order is impugned in this revision application. - 5 - 6. The short question that arises for consideration here is whether the learned Magistrate was right in passing the order of discharge after the charge was framed. Learned counsel for the petitioners placed strong reliance on the decision of a Single Judge of this Court in Baburao Hari Pawar (supra). In that case, the accused were being tried before the Sessions Judge in a sessions case for offences punishable under sections 120-B, 143, 147, 148, 302, 149 read with 34 of I.P.C. Charges were framed against all the accused on 12th April 1995 and the case was posted for evidence at trial. At that stage, an application was presented on behalf of the accused no.1 claiming discharge from the proceedings. The application was rejected by the Sessions Judge on the ground that it could not be entertained at such a late stage when the evidence was about to commence. That order was challenged before the High Court by filing a writ petition under Article 227 of the Constitution of India. Therein this Court held:- "The accused is entitled to ask for discharge from the prosecution at any stage and there is no time limit for filing such an application. Delay even can be overlooked because a right to ask for discharge is always available to an accused at any stage of a trial. It must be - 6 - borne in mind that the accused is not guilty, unless he is proved to be so and if he is able to point out even before the commencement of the trial that he has been falsely implicated and involved in the trial and that there is no prima facie case against him, he is at liberty to ask for discharge." 6. Learned A.P.P., however, invited my attention to the decision of the Supreme Court in Ratilal Bhanji Mithani (supra), and submitted that this decision was not brought to the notice of the learned Single Judge deciding the case of Baburao Hari Pawar and hence the decision cannot be held to be laying down the correct law. In Ratilal Bhanji Mithani (supra), the Supreme Court has observed:- "Once a charge is framed, the Magistrate has no power under section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge, prior to it the proceedings are only an inquiry. After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed - 7 - with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused and, thereafter, he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 362 of the Code of 1892 (which correspond to Sections 325 and 360 of the Code of 1973)." The Supreme Court has categorically held that once the charge is framed, the Magistrate has no power under section 227 of Cr.P.C. or any other provision of the Code to cancel the charge and reverse the proceedings and discharge the accused. Section 239 of the Cr.P.C. relates to discharge of an accused by a Magistrate in case of a warrant trial and section 227 of the Cr.P.C. relates to discharge of an accused by a Sessions Judge in case of a sessions trial. Section 227 of the Cr.P.C. provides that if upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf, the judge considers that if there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for - 8 - so doing. Section 239 provides that if upon considering the police report and documents sent with it 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. Sections 227 and 239 of the Cr.P.C. are similar. Former relates to discharge of an accused by a Sessions Judge in case of a sessions case and the latter relates to discharge of an accused by a Magistrate in case of a warrant case. The principle laid down by the Supreme Court in respect of discharge by a Sessions Court under section 227 of the Cr.P.C. applies with equal force for discharge of an accused under section 239 of the Cr.P.C. by a Magistrate in respect of a warrant trial. 7. Unfortunately, the decision of the Supreme Court in Ratilal Bhanji Mithani (supra) was not brought to the notice of the learned Single Judge deciding the case of Baburao Hari Pawar (supra). The decision, therefore, cannot be pressed into service for saying that the application for discharge can be made by an accused even after charge is framed. In view of the clear decision of the Supreme Court in Ratilal Bhanji Mithani (supra), - 9 - it must be held that an application for discharge can be made by the accused under section 227 or 239 before the Sessions Judge or the Magistrate as the case may be before the charge is framed. Once the charge is framed, there is no occasion for the Sessions Court or the Magistrate to discharge the accused before recording of the evidence at the trial. The learned Sessions Judge has, therefore, correctly applied the law on the subject to come to the conclusion that the Magistrate was not entitled to discharge the petitioners once the charge was framed without conducting the trial. 8. In the circumstances, the revision application fails and is dismissed. Rule is discharged. The record be forthwith sent back to the concerned Magistrate. The petitioners are directed to appear before the Magistrate on 11th February 2008 whereupon the Magistrate shall proceed against them in accordance with law. (D.G. KARNIK, J.)