^^:"i'BsK^S%^l ^-.: ^lGN^^UiTgilWMMismiS^SH.BiyiLSRUR .••*' PETmONER: Criminal Miisc.PetitiOinNO.IOS 6f201:l; ~~9^ .RESPONDENTS: Kishore KumarSarwsiySon ofSiya Ram Sarwa, aged about 29 years, R/o 256 Chowk Dallirajhara, P.S. Rajhara, Tahsil Doundi, District Durg (C.G.) Versus Smt. Bhineshwari Sahu, wife of Kishore KumarSarwa, aged about21 years, R/o 256 Chowk Dallirajhara, P.S. Rajhara, Tahsil Doundi, District Durg (C.G.), at present R/o Village Chhuikhadan, P.S. Lalbag, Tahsil and District Rajnandgaon (C.G.) 2. State of Chhattisgarh, Through P.S. Rajhara, District Durg (C.G.) {Petition under Section 482 Criminal Procedure Code} Present: Mrs. Hamida Siddiqui, counsel for thepetitioner. : ,^°? . • . •. • •] Mr. U.K. Singh Chandel, Panel Lawyerthe State/resppndent No,2. Sinale Bencls: Hbn'ble Mr. T.P. Sharma, J ORAL ORDER (25-2-2011) t'^' • • • • • ' 1. By this petition under^Se.ction,,,482 of the CrPC, the petitioner has challenged legality & propriety ofthe order dated 30-10-2010 passed by theAdditional Sessions Judge (FTC), Balod in Criminal Revision No.4/2010 affirming the order framingcharge dated 17-12-2009 passed by the Judicial Magistrate First Class, Dallirajhara in Criminal Case No.541/2009, whereby learned Judicial Magistrate First Class has passed,, the order framing charge for the offence punishable under Sectioh'494 ofthe IPC, againstthe petitioner. 2. I have heard learned counsel for the petitioner and learned Panel Lawyer fpr the State/respondent N0,2, pn admissipn. 3. Respondent No.1 is not noticed. In the light of order impugned and order of the trial Court, 1 do not find necessary for issuance of notice to respondentNo.1. ^e^a!^ f^ 4. Learned counsel for the petitioner submits that the trial Court has framed charge against the petitioner for the offence punishable under Section 494 of the IPC after considering the evidence 38dliced on behalf of respondentNo.1 before charge, under Section 244 of the CrPC. The trial Court has notframed chargein terms ofSection 240 ofthe CrPC on the basis of prima facie material sufficient for framing charge, but has framed charge in accordance with Section 245 (1) of the CrPC. Learned counsel further submits that at the time of framing charge after taking evidence before charge the Court is under obligation to examine the evidence and prima facie opine that if the evidence adduced on behalf of thecomplainaht isuhrebutted, samewould be sufficientfor conviction of the accused. The complainant is required to adduce evidence of the quality sufficient for conviction ofthe accused, ifsame is not unrebutted. However, while framing charge the trial Court has not considered the quality of evidence and has specifically mentioned in the order that evidence prima facieshows that the petitioner has committed offence under Section 494 of the IPC and has also arrived at finding that right to adduce evidence ofthe complainant has not been closed. 5. Qn the other hand, learned State counsel opposed the petjtion. 6. As;perorders'of botK: e!(S6l]!rts';Bglbw; thefrial Court has:framed charge ^gainst the petitioner in terms of Section 245 of the CrPC which reads thus, "245. When accused shall be discharged.—(1)If, upon taking all the evidence referred to insection 244, a, the Magistrate considers, for reasons, to be recorded, ; ' ' thsitno'case'against'tlfe'accused has been m^de dut which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the acciiised at any previous stage of the case if, for reasons to be recorde'd-ibyrsacholVtagistTate, tie consicters Ihe charge to be groundless." 7. fyt thetime of framing charge in accordance withSection 245 of the CrPC, the Magistrate is required to consider the evidence adducedon behalf of the complainant and its quality that if same is unrebutted, it would be syfficjent Jor war^flt]n^coinyi(;tjon qf.theaccused. Order of the trial Court reveals that the trial Court has not considered the evidence of J:—.J;-.-jy.^iJJi^. iViSL.IESi.tG.i.i...;. I'i^; ^,.;;;.;-;k.U, &2d' 3'!^ '2. •;<' ^' Bte-. ^- witnesses of the complainant in the light of aforesaid touchstone of law and thereby committed illegality. ; ^" 8. Consequently, the petition is allowed. Orders of boih the Courts below are hereby set aside. The petitioner shall present before the trial Court on 10 March. 2011 and the trial Court shall after providing sufficient opportunity of hearing/further adducing evidence before charge and providing opportunity of hearing tothe parties in accordancewith Section 245 (1) ofthe CrPC, pass orderframing charge or order of discharge of the petitioner/accused. 9. I.A.No.1 stands disposed of. it'— >-^ L-( i i t.y- Soma Sd/- T.P. Sharma Judge