Remanded

Kadiri Muhammad Ali v. State of Maharashtra

Bombay HC19 Dec 2023APL/1608/2023

Case brief

AI extract

What is this about?

The High Court set aside a charge framed without hearing the parties or explaining the charge to the accused. It directed the Magistrate to follow Sections 239 and 240 of the Cr.P.C. before deciding whether to frame a charge.

What did the court decide?

The charge framed on 31.05.2023 by the 2nd J.M.F.C., Satara, is set aside, and the Magistrate is directed to comply with Sections 239 and 240 of the Cr.P.C. to take the next step.

Kadiri Muhammad Ali Vs State of Maharashtra — Civil Procedure and Limitation | Bombay HC (2023)

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33-apl-1608-23

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Gokhale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 1608 OF 2023

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Kadiri Muhammad Ali ..Applicant.
Versus
State of Maharashtra ..Respondent

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__________
Mr. Kamran S. Shaikh a/w. Changdev Shingade, for Applicant.
Ms. Sangita D. Shinde, APP for State/Respondent.

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CORAM : SARANG V. KOTWAL, J.
DATE : 19DECEMBER 2023

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PC :

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1.The Applicant has challenged the order dated

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31.05.2023 passed by the 2nd J.M.F.C., Satara, framing the Charge
against the applicant U/s.420 and 231 r/w. 34 of the I.P.C. The
order mentions that the contents of the charge were read over and

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explained to the accused in vernacular through video
conferencing. On that date, the applicant had pleaded not guilty to

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the charges. However, he was produced through the video
conferencing and there was no signature obtained. He was
subsequently produced on 27.07.2023. Again he pleaded not
guilty, but he refused to sign.

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Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date: 2023.12.19 17:25:45 +0530

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2.The allegations against the present applicant are that, he

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had cheated the first informant Sachin. The F.I.R. was lodged on
12.09.2020 vide C.R.No.719 of 2020, at Satara City police station.
It is the case of the first informant that, some unknown persons
approached him in Satara and showed interest in making the
investment in a project. It was represented to the first informant
that, those persons were related to the dignitaries from a foreign
country. They had brought some foreign currency, however, it was
not in the original form. They represented that, to get those
currency in the original form, some chemical was required to be
applied. The first informant invested his part, but for using that
chemical and getting those chemicals, the accused extracted huge
amount from time to time. Between March 2018 to November
2018 they obtained Rs.1,27,46,000/- for that purpose. The entire
transaction was fraudulent and the first informant lost that money.
The investigation was carried out and the charge-sheet was filed.

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3.Learned counsel for the applicant submitted that, he is
not arguing this case on merits of the matter. He has restricted his
argument to non compliance of Section 239 and 240 of the Cr.P.C.

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He submitted that, those provisions were not followed. Neither the
prosecution nor the accused nor their counsel were heard before
framing of charge. This was a clear violation of those provisions
and, therefore, on that ground alone the charge is required to be
set aside. He further submitted that the noting shows that the
charge was explained to the applicant in vernacular. It is quite
clear that the accused is a foreign national and, therefore, he
would not have understood anything regarding the charge when it
was explained to him in vernacular.

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4.Learned APP, on instructions, accepted that, before
framing of the charge neither APP nor counsel for the accused nor
the accused himself was heard and the learned Magistrate
proceeded to frame the charge.

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5.I have considered these submissions. Since no arguments
are advanced on the merits of the matter, I am not discussing the
merits of the matter. However, on the procedural aspect, I find
substance in the submission of learned counsel for the applicant.
The provisions of Section 239 and 240 of the Cr.P.C. are relevant;

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33-apl-1608-23

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which read thus:

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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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240.Framing of charge – (1) If, upon such
consideration, examination, if 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.

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(2)The charge shall then be read and explained
to the accused, and he shall be asked whether he
pleads guilty of the offence charged or claims to be
tried.

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6.Both these sections required that, before framing of

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charge, an opportunity must be given to the prosecution and the
accused of being heard and then only the next step of either
discharging the accused or framing charge against the accused can
be taken by the Court. In the present case, as accepted by the
learned APP, no such step was taken and, therefore, the charge

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which is framed in the present form is liable to be set aside.
However, that does not mean that the applicant would be
automatically discharged. The learned Magistrate will have to
follow the procedure U/s.239 and 240 of the Cr.P.C. for taking the
next step.

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7. Hence, the following order:

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O R D E R

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i) The charge framed against the applicant in R.C.C.No.279 of 2022 on 31.05.2023 by the 2^nd J.M.F.C., Satara, is set aside.

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ii)The learned Magistrate shall ensure compliance with the provisions of Sections 239 and 240 of the Cr.P.C. to take the next step.

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iii)It is open to the learned Magistrate to decide as to whether Charge is to be framed. He shall ensure compliance of Sections 239 and 240 of the Cr.P.C.

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iv)If the charges are framed, it has to be explained to the applicant.

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v) Learned counsel for the applicant states that, if

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the Court decides to frame charge, the applicant
shall not create any disturbance while signing his
plea.

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vi)It is made clear that, this Court has not expressed
its opinion on the merits of the matter.

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vii)The question of framing of charge shall be
decided by the learned Magistrate, in accordance
with law.

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viii)With these observations, the application is
disposed of.

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(SARANG V. KOTWAL, J.)

Kadiri Muhammad Ali v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Kadiri Muhammad Ali v. State of Maharashtra

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

Case details

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