Allowed

Madhukar Sukhdeo Thube v. the State of Maharashtra and Another

Bombay HC5 Feb 2014APPLN/113/2014

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad, allowed the criminal application setting aside the order framing a charge against the applicant. The charge was quashed as the Magistrate failed to comply with Section 207 of the CrPC by not providing the police report to the accused before framing the charge.

What did the court decide?

The order dated 29.10.2012 framing the charge is set aside; the case to be proceeded in accordance with Chapter XIX of the CrPC.

Madhukar Sukhdeo Thube Vs the State of Maharashtra… — Writ and Judicial Review | Bombay HC (2014)

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APPLN 113.14.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 113 OF 2014

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MADHUKAR SUKHDEO THUBE

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age 27 years, Occ. Advocate clerk, R/o Gomalwadi (Tamaswadi), Tq. Newasa, Dist. Ahmednagar. ..Applicant. VERSUS

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THE STATE OF MAHARASHTRA (through the Police Inspector Kotwali Police Station, Ahmednagar.)

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Shalini d/o Dadaba Bhingardive, age 42 yrs, Occ. Service, R/o Maliwada, Opp. Zilla Parishad, Ahmednagar, Dist. Ahmednagar. ..R-2 ..Deleted..

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Mr. H.D. Deshmukh Advocate for Applicant Mr.S.B.Pulkundwar APP for Respondent no.1.

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CORAM : ABHAY M. THIPSAY, J. Dated: February 05, 2014

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ORAL JUDGMENT :-

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Heard.

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Leave to amend by deleting the name of the

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respondent no.2, granted. Necessary amendment be carried out

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forthwith.

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2 APPLN 113.14.odt

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Since a limited issue is involved in the matter, Rule is

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issued and made returnable forthwith by consent. The learned APP waives service. By consent, heard finally.

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The learned counsel for the applicant tenders a certified copy of the roznama of the Trial Court, which is taken on record and marked ‘x’ for identification.

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The applicant is the accused in RTC No.557/2012

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pending before the Judicial Magistrate First Class, Ahmednagar. He is challenging the order dated 29.10.2012 passed by the learned Magistrate framing a charge of offences punishable under section 498-A of the IPC, 323 of the IPC, 504 of the IPC and 506 of the IPC against him. It is submitted that there was no material to

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disclose the commission of an offence punishable under Section 498-A of the IPC. However, the main contention of the applicant

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is only that, charge came to be framed without supplying a copy of the charge sheet to him. It is submitted that on 29.10.2012 the

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applicant appeared before the Trial Court and on the very day

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after the warrant issued against him by the Court was cancelled,

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a charge came to be framed and plea of the accused came to be

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3 APPLN 113.14.odt

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recorded. The certified copy of the Roznama of the trial court

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supports the version of the applicant.

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The case against the applicant is a warrant case instituted on a police report and the provisions with respect to such trial are found in Chapter XIX of the Code of Criminal Procedure. Section 207 of the Code requires the Magistrate to furnish to an accused, free of cost, a copy of the police report, the

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FIR, statements recorded during the investigation etc., without

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delay. Section 238 of the Code reads as under :-

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238. Compliance with Section 207 – When in
any warrant-case instituted on a police
report, the accused appears or is brought
before a Magistrate at the commencement of
the trial, the Magistrate shall satisfy
himself that he has complied with the
provisions of Section 207.

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It is clear on a bare reading of the said section that before considering whether or not to proceed against an accused

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by framing a charge, it is incumbent upon a Magistrate to satisfy himself that provisions of Section 207 have been complied with.

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The same has not been done in the instant case.

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4 APPLN 113.14.odt

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Section 239 of the Code inter alia speaks of an

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opportunity of hearing to be given to the prosecution and the accused before deciding whether or not there is a case for proceeding by framing a charge against accused. In the instant case, since the order framing charge came to be passed without providing a copy of the police report and accompanying documents to the applicant, it cannot be sustained. At any rate, the applicant could not have made any submissions with respect to the allegations levelled in the police report and accompanying documents, without having a copy thereof.

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The impugned order, therefore, needs to be interfered

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with.

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There is, however, one aspect of the matter which

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needs a mention. Apparently, the applicant appeared before the Trial Court on 29.10.2012 only after a warrant to compel his appearance had been issued. It appears that thereafter also, the applicant did not remain present before the Trial Court. A warrant of arrest has repeatedly been issued by the Trial Court to

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procure his presence. Though the impugned order is being set

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5 APPLN 113.14.odt

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aside on the ground that it is not in accordance with law, there is

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no justification for the absence of the applicant before the Trial

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Court. The Magistrate had power to compel his appearance. Therefore, the order issuing warrant is proper and legal. By

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taking advantage of the fact that impugned order is bad, the applicant cannot get the order issuing warrant set aside, as was suggested during the arguments. That is a matter to be dealt with

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by the Trial Court and no interference with respect to the process issued by the trial court to compel the presence of the applicant before it, is warranted.

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In the result, Criminal Application is allowed.

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The order dated 29.10.2012 framing charge against the applicant, is set aside.

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The learned Magistrate shall proceed further with the matter in accordance with the provisions of Chapter XIX of the Code.

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The application is disposed of in the aforesaid terms. Rule is made absolute accordingly.

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( ABHAY M. THIPSAY, J. )

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aaa/-

Madhukar Sukhdeo Thube v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Madhukar Sukhdeo Thube v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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