Allowed

D.Rama Krishna v. State of Ap

Andhra Pradesh HC22 Nov 2023CRLP/1911/2019

Case brief

AI extract

What is this about?

The Court held that merely asking about a plea under Section 240 Cr.P.C. does not fulfill the mandatory requirement of hearing both sides under Section 239 Cr.P.C. before framing charges, thereby setting aside the charges and remanding the matter for a fair opportunity to be given.

What did the court decide?

Charges framed on 29.06.2016 set aside; matter remanded to trial Court to examine accused under Section 239 Cr.P.C. within one month and frame charges afresh after hearing both sides.

D.Rama Krishna Vs State of Ap — Civil Procedure and Limitation | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO CRIMINAL PETITION No.1911 OF 2019

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ORDER:

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The present Criminal Petition is filed to the extent of framing of charges against the petitioner herein under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 in C.C. No.8 of 2016 on the file of the III Additional District and Sessions Judge-cum-Special Judge for ACB Cases at Visakhapatnam.

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It is the contention of the petitioner herein that under Section 239 Cr.P.C. an opportunity of being heard to raise objections before framing charges. Thus, Section 239 is hereby extracted:

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“239. When accused shall be discharged – If, upon considering the police report and the documents 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.

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Upon considering the police report and the documents sent with it under Section 173 Cr.P.C. and making such examination, if any, of the accused, as the Magistrate thinks necessary and after giving an opportunity of being heard to the prosecution and the accused, the Magistrate considers the Charges against the accused to be groundless, he shall discharge the accused and record his reasons for doing so.

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Under the said provisions, an opportunity of being heard given to the accused-officer /accused before framing charge/charges and no such opportunity was given to the petitioner who is accused officer, as such there is a violation of Section 239 of Cr.P.C., hence, prayed to set aside the charges framed against the petitioner herein and to direct the Magistrate to give an opportunity to explain his case before framing charge basing upon the material placed, under Section 173 of Cr.P.C.

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To that extent, learned counsel for the petitioner would rely on the judgment of common High Court of Andhra Pradesh at Hyderabad in Criminal Revision Case No.1630 of 2016, wherein the High Court held that:

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It is evident that the petitioners were not given an opportunity to raise their objections to the charges framed. Hence, this Court is of the view that the trial Court should give an opportunity to the petitioners to raise their objections to frame charges and if the petitioners are not having any grievance on framing of charges, the trial Court can frame charges under Section 240 of Cr.P.C.

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On the above said contention, counsel for the petitioner would urge to set aside the charges framed against the accused officer herein and to direct the trail Court to give an opportunity to the petitioner herein to explain his case basing upon the charge sheet filed by the complainant.

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Learned Counsel appearing for the respondents would submit that opportunity was given to the petitioner herein and as per the affidavit filed in support of the above said contention, it is explicit that an opportunity was given to the petitioners herein, hence urged to dismiss the Criminal Petition.

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As seen from the affidavit, a formal question was asked the accused officer before framing of the charges. The Court below has read over charges and asked the accused whether he pleads guilty or not guilty, accordingly, framed the charges

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under Section 240 of Cr.P.C., that is not a sufficient compliance of the Section 239 of Cr.P.C.

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In the similar circumstances in Criminal W.P.No. 623 of 2006 in Hitesh Kishorechand Raithatha & Others v. State of Maharashtra and another¹ , wherein Bombay High Court (Aurangabad Bench) held that:

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“It is necessary for the Sessions Court to consider the record of the case and hear both the sides before framing of the charge. It is significant to note that Section 228(1) of the Criminal Procedure Code contemplates consideration of the record and hearing of submissions of the accused and the prosecution. So, unless hearing is given to both sides, the charge cannot be framed. The Sessions Judge is required to form an opinion to the effect that there is ground for presuming that the accused has committed an offence. It is only after formation of such an opinion that he may proceed to frame a charge. The framing of charge is not an empty formality. It requires consideration of the material on record notwithstanding any request for discharge by the accused. It is for the Court of Session to take a preview of the material on record before preparing of the charge. The Court of Session cannot blindly frame the charge without adhering to the nature of allegations.

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1 2008 SCC OnLine Bom 1380

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The scope of Section 239 and 240 of Cr. P.C. is rights of accused to be heard before framing of charge are similar and analogues in terms of Section 227 and 228 of Cr.P.C. In view of the orders of this Hon’ble Court as well as the Bombay High Court (supra 1) and even Section 239 Cr.P.C. categorically says that an opportunity of being heard is to be given to the accused before framing of the charges.

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As seen from the charges framed by the Trial Court, there is no such opportunity of being heard was given to the petitioner-accused. Hence, this Court is inclined to set aside the charges framed by the trial Court under Section 239 Cr.P.C., dated 29.06.2016 and accordingly the charges that were framed are hereby set aside and the matter is remanded to the trial Court for framing charges afresh giving an opportunity of hearing to explain before framing of the charges under Section 239 of Criminal Procedure Code to both sides. After considering the same, the Court below is directed to frame charges.

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Accordingly, the Criminal Petition is allowed and the accused is hereby directed to cooperate with the Court. The Court shall complete examination of accused under Section

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239 Cr.P.C. within one month from the date of receipt of the order, as the matter pertains to 2016, the trial Court shall dispose the C.C. No.08 of 2016 as expeditiously as possible.

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As a sequel, interlocutory applications, if any pending in this Criminal Petition shall stand closed.

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________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

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Date: 22.11.2023 HARIN

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHARA RAO

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153

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