1 S.B.CRIMINAL MISC. PETITION NO.295/2005 (Anju Vs. State of Raj.& Anr.) Date of order : : 03.05.2007 HON'BLE MR. KRISHAN KUMAR ACHARYA, J. Mr.Devendra Singh Dev, for the petitioner. Mr.Ashok Upadhyay, PP for the State. Reportable Heard learned counsel for the petitioner as well as learned Public Prosecutor. The respondent No.3 has expired. No one appears on behalf of respondent No.3. Learned counsel for the petitioner states that FIR was lodged by third person. The learned Magistrate vide its order dated 17.11.1994, took cognizance against the petitioner and two other accused for offence under Section 382 Cr.P.C. Thereafter, the case was committed to Sessions Court. Learned Additional Sessions Judge after hearing the arguments on charge came to the conclusion that no offence under Section 307 IPC is made out against accused Anju (the present petitioner), Ram Chandra and Shrawan Kumar. Since other ofences under Section 382, 380 and 411 IPC is triable by Magistrate, First Class, therefore, he 2 transferred the case under Section 228 Cr.P.C. from the court of Additional Sessions Judge (Fast Track) to the court of CJM, Bikaner for trial. I have perused the order dated 8.2.2005 passed by learned Additional Sessions Judge (Fast Track), Bikaner. Learned Additional Sessions Judge has come to the conclusion that no case under Section 307 IPC is made out but he has not given any finding whether prima facie there are ground for presuming that accused have committed offence under Section 382, 380 and 411 IPC or whether any charge can be framed or not. He has not considered the evidence nor has given any finding. Section 228 of the Code of Criminal Procedure reads as under:- “228. Framing of charge:- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Sessions, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate,a nd thereupon the Chief Judicial magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report: (b) is exclusively triable by the Court, he shall 3 frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” From bare perusal of this section, it appears that after consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report and if the case is exclusively triable by the Court, he shall frame in writing a charge against the accused. In the present case, it is clear that learned Additional Sessions Judge has not given any finding whether prima facie the case under Section 382, 380 and 411 IPC is made out against the accused Anju, Ram Chandra and Shrawan Kumar or not and without applying his mind, transferred the case to the learned Chief Judicial Magistrate for trial. It is incumbent upon the 4 Sessions Judge before sending the case under Section 228(1) to consider the evidence and must reach to the conclusion that what charges can be framed against the accused and may transfer the case after framing the charges. This point whether word 'may' should be treated as 'shall' or not; or whether it is only directory has not been raised before me, therefore, at this stage, I need not to comment on this controversy but since learned Sessions has not given any finding whether charges under Section 382, 380 and 411 IPC are made out or not against the said accused- persons, therefore, in my considered opinion this matter should be remanded back to the learned Additional Sessions Judge (Fast Track) No.1, Bikaner with a direction that after hearing the accused-petitioner again, he will arrive at the conclusion what charges can be framed against the said three accused while following the procedure under Section 228(1)(a). In view of this matter, the order so far as it relates to finding that no offence under Section 307 IP C is made out has not been challenged by any party, therefore, this order shall stand but as far as the order sending the case for trial for offence under Section 382, 380 and 411 IPC is concerned, this matter is 5 sent back to the learned Additional Sessions Judge (Fast Track) No.1, Bikaner with these directions that after hearing both the parties he will come to the conclusion independently whether any charge for offence under Section 382, 380 and 411 IPC can be framed or not and pass appropriate order in accordance with the law. Accused-petitioner is directed to appear before the concerned learned Sessions Judge on 30th of May 2007. The petitioner is at liberty to raise all objections which has been raised in this misc. petition before the Additional Sessions Judge (Fast Track) whether any offence under Section 382, 380 and 411 IPC is made out or not. With these observations/directions this misc. is disposed of. (KRISHAN KUMAR ACHARYA), J. NK