IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.917 of 2009 Vijay Kumar Agarwal ………..Applicant Versus Mahesh Kumar Agarwal …….Respondent Sri Rakesh Thapliyal, Advocate for the applicant. Sri Arvind Vashistha, Advocate for the respondent. Dated: December 3, 2009 Hon’ble Alok Singh, J. (By the Court) Heard Sri Rakesh Thapliyal, learned counsel for the petitioner. Sri Arvind Vashistha, Advocate appearing for the respondent. Short counter affidavit filed on behalf of respondent is taken on record. By way of present petition charges framed by learned Trial Court u/s 420, 467, 468,471 I.P.C. vide order dated 20.08.2008 and Revisional Court’s judgment dated 15.09.2009 are being assailed. . Both the counsels fairly stated that neither accused nor prosecution were heard before framing the charges. Both the counsels fairly stated that Magistrate has failed to record his opinion. Sections 239 and 240 of Code of Criminal Procedure are as under:- 239. When accused shall be discharged – If, upon considering the police report and the document sent with it under section 173 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, and record his reasons for so doing. 240. Framing of charge – (1) If, upon such consideration, examination of any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charges or claims to be tried. From the perusal of the section 239 and 240 Cr.P.C., I find that hearing is must before framing the charges. From the reading of section 239 & 240 Cr.P.C., it can safely be held that the Court shall consider the police report and documents sent with it under section 173 Cr.P.C. and shall hear the accused and the prosecution to form an opinion as to whether charges against the accused are groundless or should be framed. Hearing before the framing of charges as required under section 239 and 240 Cr.P.C. is sine qua-non for valid trial. No formal application is required to move to argue on the question of discharge. If Magistrate hears the accused and prosecution for the framing of charge then obviously accused can argue on the point of discharge. Apex Court in the case of Dilwar Balu Kurane Vs. State of Maharashtra reported in (2002) 2 SCC 135 in para 12 has observed:- “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing of charges under the said section has the undoubted power to sift and weight the evidence for the limited purpose of fining out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been property explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Apex Court in the case of Lalu Prasad VS. State of Bihar reported in (2007) 1 SCC 49 has observed in para 15 as under :- 15. In Kanti Bhadra Shah v. State of W.B. again the question was examined. It was held that the moment the order of discharge is passed it is imperative to record the reasons. But for framing of charge the court is required to form an opinion that there is ground for presuming that the accused has committed the offence. In case of discharge of the accused the use of expression “reasons” has been inserted in Sections 227, 239 and 245 of the Code. At the stage of framing of a charge the expression used is “opinion”. The reason is obvious. If the reasons are recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put on trial. It was inter alia held as follows:- 10. It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused. 11. Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub-section(2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. From the judgments of Apex Court (supra) it is thus clear that learned Magistrate has to record his opinion, before framing the charge, that there is sufficient ground to presume that the accused has committed an offence triable by him and in his opinion accused could be adequately punished by him. Recording of opinion does not mean recording of detailed reasons or grounds. Detailed reasons are to be recorded only when Magistrate passes the order to discharge. I have examined the order sheet. Order sheet is silent about the compliance of sections 239 and 240 Cr.P.C. Magistrate did not hear the accused and the prosecution on the question of charges. It is the duty of the Court to hear prosecution and accused and consider the material available before him before passing the order framing of charge, which is not done in the present case. Nor Magistrate has recorded his opinion that there is sufficient ground to presume that the accused has committed an offence triable by him and in his opinion accused could be adequately punished by him. In the present case, I have no other option except to quash the charges. Hence, present petition is allowed. Charged framed on 20.08.2008 by trial court and judgment dated 15.09.2009 passed by learned Additional Sessions Judge, Kashipur Distt: U;.S. Nagar in Criminal Revision No.133 of 2008 are set aside. The learned Magistrate shall hear the prosecution and accused and shall consider every material produced before him and thereafter learned Magistrate shall pass appropriate order either to discharge the accused or to frame the charges against the accused in accordance with law. (Alok Singh, J.) 03.12.2009 JKJ