IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1189 OF 2008. Bhanwarlal Gajraj Khimawat. ..Petitioner. versus The State of Maharashtra. ..Respondent. .... Mr.Parvez Ubhary, for the Petitioner. Mr. D.P.Adsule, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 25th September 2008. : 25th September 2008. : 25th September 2008. P.C.: 1. The submissions of the learned counsel appearing for the parties were heard in the morning. The petitioner is being prosecuted for an offence under section 411 of the Indian Penal Code. The prosecution has been initiated on the police report. The petitioner was added as an accused on the basis of an order made under section 319 of the Code of Criminal Procedure, 1973. 2. An application was made by the petitioner who has been arraigned as an accused no.2 seeking discharge by invoking the provisions of section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code of 1973’). The said application has been rejected by the Trial Court by order dated 4th October : 2 : 2006. The learned Judge held that being a warrant triable case the application will be governed under section 245 of the Code of 1973 and therefore, the same can be considered after recording of evidence of the prosecution witnesses. Therefore, the application for discharge was rejected. A revision application was preferred by the petitioner before the Sessions Court which has been dismissed. The learned Sessions Judge has referred to the merits of the case while rejecting the revision application. The learned Judge however held that the applicant has no right to move the application for discharge. The learned Judge held that procedure of summons case was applicable to the case and therefore, there is no provision for discharge. The learned Judge observed that after going through the charge-sheet, it appears that there is a ground for assuming that the applicant is the receiver of the stolen property. 3. In my view, since the case was a warrant case, the application under section 239 of the Code of 1973 ought to have been considered by the learned Trial Judge on merits. Merely because order passed under section 319 of the Code of 1973 is confirmed in revision application is no ground to reject the application under section 239 of the Code of 1973 at threshold. In fact, : 3 : the said order itself records that the petitioner can apply for discharge. The learned Trial Judge has not considered the application on merits, however, in revision, the learned Additional Sessions Judge has adverted to the merits of the case. The said approach of the Revisional Court is erroneous. 4. Hence, I pass the following order :- (1) The impugned order dated 4th October 2006 as well as the impugned order dated 19th June 2007 passed in criminal revision application no.1328/2006 are quashed and set aside. (2) The learned Magistrate is directed to hear and decide afresh the application made by the petitioner for discharge on its own merits in accordance with the law. (3) All contentions on merits are expressly kept open. (4) The writ petition is partly allowed on above terms. : 4 : (A.S.Oka,J)