1. This petition by the accused is directed against the order dated 26-5-1981, passed by the Judicial Magistrate First Class (II Court), Hubli in C.C. No. 869 of 1981, directing to frame a charge against him for an offence punishable under section 379 of the I.P.C.
2. On the basis of a complaint, a charge-sheet was placed by the Sub-Inspector of Police (Crime) Sub-Urban police station, Hubli, against the accused for offences under sections 379 and 411 of the I.P.C. The accused was furnished with copies of the documents of prosecution as required under law. The prosecution also the learned counsel for the accused were heard before framing of the charge. Thereafter the learned Magistrate passed the impugned order, rejecting the prayer of the accused that he may be discharged as the matter involved in the case is one of civil nature, and directed a charge to be framed against the accused for an offence punishable under S. 379, I.P.C. It is legality and correctness of the said order that is being assailed in this petition.
3. Sri. G. S. Bhat, learned counsel appearing for the petitioner-accused, contended that the impugned order cannot be sustained in law inasmuch as the Magistrate has not considered all the materials that were placed before him as required under section 239, Cr.P.C. He also submitted that the accused is no other than the partner of the firm M/S. Sudha Agencies and that he being a partner of the aforesaid firm the question of his committing theft of the Luna Moped in question did not arise at all and therefore the prosecution has not made out any offence against him and the proper order that should have been passed by the Magistrate was that the charge was groundless and hence he should have discharged the accused of the aforesaid offence. In support of his above contention he relied upon a decision in Century Spinning & . v. State of Maharashtra, : 1972CriLJ329 , wherein the Supreme Court while considering the provisions of S. 241A Cr.P.C. (old) which corresponds to S. 329, Cr.P.C. (new Code) has observed thus :
'It cannot be said that the court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the court must automatically framed the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
Held that the trial court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court therefore was in error in reversing that order'.
He also relied upon a decision of this Court in State of Karnataka v. Munivenkatappa (1978 (1) Kant LJ 41) wherein it is held in para-5 of the judgment thus :
'........... Therefore, it cannot be said that the Magistrate, at the stage of framing the charge, has not to apply his judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The responsibility of framing a charge of otherwise is of the Magistrate and he has to judicially consider the question of doing so. At the stage of framing the charge, the court has to apply its mind to find out whether there is a ground for presuming the commission of an offence by the accused. The plain language of the section itself authorises the Magistrate to examine the material placed before him.'
4. There is substance in the contention of Sri Bhat. The words appearing in Section 239 Cr.P.C. 'opportunity of being heard' do not mean examination of any witness. It merely gives a right of audience which means that the prosecution and the accused are entitled to argue their case in favour of framing charge or a discharge. The word 'hearing' is also used in Sections 145(4), 244(1) and 254(1), Cr.P.C. Examination of the accused is not imperative. If upon consideration of all the document and other circumstances the Magistrate comes to the conclusion that the accusation is without any substance, then he may discharge the accused even without examining him. Examination becomes necessary when there are facts or circumstances in the documents etc., which go against the accused and which need explanation before framing charge. It is better to examine the accused when it is intended to frame a charge. Section 240, Cr.P.C. Reading two sections together it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless. The Magistrate has a duty to consider the entire material referred to in S. 239. Reading of the aforesaid principles and also the dicta laid down by the Supreme Court and this court referred to above, it is abundantly clear that the Magistrate was to apply his judicial mind to the fact of the case and after hearing both the parties come to the conclusion whether the charge levelled against the accused is groundless or whether there are grounds to frame a charge against him. In the case on hand, the accused while addressing arguments before the Magistrate appears to have brought to his notice that he is the partner of the firm in question, and he has also filed a list of documents in support of that argument, for which the complainant is also one of the partners. The learned Magistrate has not even referred to these documents before passing the impugned order. It was incumbent upon him to have adverted to those documents as he was expected to hear both the parties in respect of the framing of the charge. The fact that he has not adverted to the documents filed by the accused clearly indicated that the accused was not given sufficient opportunity that he is entitled to under section 239, Cr.P.C. Without expressing any opinion with regard to the document produced by the accused, I am of opinion that this is a fit case wherein this court should interfere with the impugned order. Therefore, the impugned order is liable to be set aside.
5. In the result, for the reasons stated above, this petition is allowed, the impugned order is set aside and the matter is remanded to the trial court with a direction to follow the procedure in accordance with law in the light of the observations made above.
6. Petition allowed.