1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (MAIN) NO.43 OF 2008 Mr. Jose Maria Albert Vales, Alias Robert Vales, s/o. Pedro Vales, 47 years of age, Business, R/o.Zorint, Sancoale, Mormugao. .... Applicant. Versus 1. State (Then District and Sessions Judge.) ..... Respondents. Mr.Arun Bras De Sa, Advocate for the Applicant. Ms W. Coutinho, Public Prosecutor for the respondent. Coram :- R.M.S.KHANDEPARKAR,J. Date : - 19th March, 2008. ORAL JUDGMENT : 1. Heard. Rule. By consent, rule is made returnable forthwith. 2. The applicant challenges the order passed by the J.M.F.C., Margaon on 17th March, 2006 in Criminal Case No.380/S/2003/III. By the impugned order, the learned J.M.F.C. has rejected the objection raised on behalf of the applicant for framing of charge against the applicant U/s.193 of I.P.C. 2 3. Bare perusal of the order discloses that apart from observing that the accused has resiled from earlier statement given by him U/s.164 of Cr.P.C. and was declared hostile and cross-examined by the prosecution in Sessions case. No.18/2000 no other material in that regard in order to sustain the decision to frame charge U/s.193 of I.P.C. has been referred to. In the cross-examination, the accused did not adhere to the statement given by him earlier before the learned J.M.F.C,Margaon. The learned Magistrate does not seem to have referred to any material on record which could prima facie disclose that the applicant could be prosecuted for the offence punishable U/s.193 of I.P.C. At the time of framing of charge if an objection is raised on the ground that materials placed before the Magistrate are not sufficient to frame the opinion about the involvement of the accused in the alleged offence, it is the duty of the Magistrate to peruse the records and ascertain whether prima facie the facts on record disclose the offence alleged against the accused. The impugned order nowhere discloses any such exercise having been undertaken by the learned Magistrate and by mere observation that the accused was declared hostile and he did not adhere to the statement given by him U/s.164 of Cr.P.C., without referring to any particular statement which could indeed reveal such resilement from the statement U/s.164 of Cr.P.C., the learned Magistrate has rejected the objection raised on behalf of the applicant. In the circumstances, therefore, the impugned order cannot be sustained and is 3 liable to be set aside and the matter is required to be remanded to the learned Magistrate to ascertain from the record as to whether prima facie case is made out for framing the charge U/.193 of I.P.C. and then decide about the objection raised by the accused in the matter as well as point relating to the framing of charge. 4. The petition is, accordingly allowed. The impugned order is quashed and set aside and the matter is remanded to the Magistrate for consideration thereof as stated above. Rule is made absolute with no order as to costs. R.M.S.KHANDEPARKAR,J. SMA