H.K. Sema, J.@mdashThis revision is directed against the order dated 15.3.93 passed by the learned Judicial Magistrate First Class, Dimapur in GR. Case No. 573/91 whereby, the learned Court below discharged the accused/Respondent purportedly in exercise of power u/s 239 of the Code of Criminal Procedure.
2. From the order dated 26.7.94, it appears that Mr. K. Meruno, learned Counsel who represented the Respondent in this revision petition has been withdrawn from the case for non-cooperation of the Respondent. This fact was brought to the notice of the Respondent by a notice dated 30th July 1994. Despite of issuance of notice, the Respondent has not made any alternative arrangement to represent its case. However, looking into the fuels and circumstances of the case I propose to dispose of this revision petition on merit alter pausing the records and materials available on record and after hearing Mr. I. Jamir, learned Public Prosecutor.
3. Section 239 of the Code of Criminal procedure empowers the Magistrate to discharge the accused in the event the learned Magistrate considers the charge against the accused to be groundless after recording his reasons for so doing (emphasis supplied) In the instant case, the learned Magistrate discharged the accused of an offence u/s 406/418/423/I.P.C in exercise of the power conferred by Section 239 of the Code of Criminal procedure The order discharging the accused runs as under:
After hearing the submissions of the both Ld. Additional Public Prosecutor and the Ld. defance counsel the order was reserved. On perusal of the documents made available to me in the case records, the case diaries of the case and the submissions, I am inclined to accept the submission made by the Ld. defence counsel and the rulings cited in the case that there are no grounds to proceed against the accused. In view of the above submission I do hereby discharge the accused Temjen Jamir from the liabilities of this case G.R. 575 of 1991 under the provisions of Section 239 of the Code of Criminal Procedure. The bail granted to accused Temjen jamir is also hereby discharged.
4. A bare perusal of the conclusion of the learned Court below, no reasons have been recorded as to how the learned Court below has come to that finding Section 239 of the Code specifically provides that the Magistrate is empowered to discharge the accused if in the opinion of the Magistrate the charges against the accused are ground-less and he can do so after recording its reasons. Apart from non-disclosing of reasons, the Lower Court record has been made available to this Court at the time of hearing of this petition. On perusal of the record and particularly the documents sent with it u/s 173 of the Code of Criminal Procedure there is sufficient materials to frame charges against the accused person for an offence u/s 407/418/423 of the Indian Panel Code.
5. It is well settled principle of law that at the stage of framing of charge even a strong suspicion founded on materials would be enough to frame charge against the accused person.
At the stage of framing charges, the prosecution evidence does not commence, The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and Judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate (sic) lends him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of the charge against the accused in respect of the commission of that offence.
6. As observed earlier, on persual of the documents, particularly the document sent u/s 173 of the Code of Criminal Procedure there is sufficient materials for presuming that the accused has committed an offence punishable u/s 406/418/423 I.P.C, Therefore, there was sufficient materials for framing charge against ,the accused person u/s 240 of the Code of Criminal procedure This apart, the learned Magistrate has discharged the accused without recording any reasons for so doing in violation of the mandate of Section 239 of the Code of Criminal procedure This itself is enough for setting aside the order dated 15.3.93 passed by the learned judicial Magistrate First Class discharging the accused.
7. In the result, the order dated 15th March 1993 passed by the learned Judicial Magistrate First Class in G.R. Case No. 573/91 u/s 406/418/423 I.P.C. are hereby Set aside.
8. It is submitted by Mr. I. jamir. learned P.P. that looking into facts and circumstances of the case it would not be desirable to send back the record to me same Magistrate in the interest of justice. This submission of Mr. I. Jamir in my view deserve consideration for the interest of justice.
9. The case is now remitted to the Court of learned Addl. Deputy Commissioner (J) Dimapur to dispose of the case in accordance with law.
10. Registry is directed to send back the case record to the learned Addl. Deputy Commissioner (J) Dimapur. On receipt of the record, the learned Addl. Deputy Commissioner (J) shall issue a notice to the accused for fixing a date of hearing.
11. Considering the facts that the case is pending since 1991, the learned Addl. Deputy Commissioner (J) is directed to dispose of the petition as expeditiously as possible preferably within a period of three months from the date of the receipt of the record.
With the aforesaid direction, petition is allowed.
