IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 Crl.MC.No. 1786 of 2006(C) ------------------------- SC.266/2005 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK COURT-III (ADHOC, MANJERI .................... PETITIONER/ ACCUSED: ----------------------- ABDUL SALAM, S/O. ASSANKUTTY, CHUNKATH HOUSE, THEKKUMMURI, OORNGATTIRI, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: --------------- 1. THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJETH ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1786 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of October 2008 ORDER The grievance of the petitioner is that he was denied an opportunity to plead for discharge by the trial court in spite of a direction issued by this court in this regard. 2. Petitioner is facing trial for the offence punishable under Sections 366 and 354 of the Indian Penal Code. In Crl.M.C.5234/03, this Court while dismissing the above petition observed that the dismissal would not be a bar for the petitioner to plead for discharge under Section 227 of the Code of Criminal Procedure in case the case is committed to the Court of Session. 3. It is on record that the case came up for consideration before the Additional District Judge, Manjeri (Fast Tract Court-III) (Adhoc) on June 26, 2006. The learned Judge, after perusing the records, passed the following order: “When the matter is posted for hearing prosecution argued that charge can be framed under both Sections, i.e., 366 and 354 of IPC. Counsel for accused not present even after passing over the matter. His representative submitted that charge can be framed.” Crl.M.C.No.1786 OF 2006 :: 2 :: 4. The learned Judge had thereafter passed the impugned order framing charge against the petitioner for the offence under Sections 366 and 354. A copy of which is on record as Annexure-B. 5. Learned counsel for the petitioner submits that the above case had all along been pending before the Sessions Court, Manjeri. On December 14, 2005 when the case came up for consideration before the Sessions court, the accused was granted bail and the case was adjourned to March 13, 2006 for framing charge. On that day, the accused had appeared. But since the learned Judge was on leave, the case was adjourned by notification to June 17, 2006. On that day also the case was adjourned, since the learned Sessions Judge was on leave. It was notified that the case would be taken up on June 26, 2006. It is the specific case of the petitioner that on June 26, 2006 the case was taken up before the Fast Track Court-III (Adhoc) without any prior notice. While conceding that the accused had appeared before the Fast Track Court on the instant date, it is contented by the learned counsel that the learned Judge had proceeded to frame charge on the same day without affording an opportunity to the learned counsel for the accused to be heard in Crl.M.C.No.1786 OF 2006 :: 3 :: the matter. He points out that the learned counsel was all along under the impression that an opportunity of hearing would be afforded, particularly since this Court had issued a direction in this regard. 6. As noticed already, the trial court had proceeded on the basis of the submission made by 'the representative of the learned counsel for the accused'. But his counsel was not heard. The fact remains that the case was transferred to the Fast Track Court- III (Adhoc) and it came up before that court for the first time on June 26, 2006. 7. Having regard to the peculiar facts and circumstances of the case, I am of the view that petitioner can be afforded an opportunity to raise his contentions in support of his plea of discharge, though the order passed by the learned Judge cannot be faulted especially since another learned counsel representing the counsel for the petitioner had informed the Court that the charge could be framed. However, the accused need not carry a feeling that he had been denied an opportunity to plead for discharge and that too because of the lapse of his counsel who for bona fide reasons might have believed that the case would not be taken up Crl.M.C.No.1786 OF 2006 :: 4 :: for framing charge on the same day when it was transferred to the Fast Track Court. 8. Therefore, I am satisfied that Annexure-B order is liable to be quashed. I do so. Court below shall proceed to frame charge after affording an opportunity to the petitioner to be heard. Crl.M.C. is allowed. (A.K.BASHEER, JUDGE) jes