R.K. Manisana Singh, J. - (1.)THIS is a petition under Section 482, Code of Criminal Procedure arising from an order dated 8.3.1982 passed by the learned Judicial Magistrate of the first class, Imphal West, Central District to Crl. (P) Case No. 116 of 1981 instituted on a police report against the Petitioner and two other persons. The learned Magistrate passed the order framing a charge under Section 380/34 IPC. against the Petitioner and two others, The charge framed against Petitioner and two others under Section 380/34, IPC, is that on 16.8.1981 at 12.00 mid -night in collusion committed the theft of some parts of sugar -cane grinding machine from the house of informant, Laishram Ibotombi Singh of Lamdeng Khunou. The Petitioner and others plead not guilty. Out of the three accused the Petitioner Sanasam Indra Singh has questioned the order of framing of charge against him.
(2.)SECTION 239, Code of Criminal Procedure provides for, when an accused shall be discharged. Section 240, Code of Criminal Procedure is a provision for framing charge against an accused. Section 239, Code of Criminal Procedure runs:
If, upon considering the police report and the document 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.

And Section 240, Code of Criminal Procedure provides:

(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.

(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.

A close reading of the Sections 239 and 240 together shows that there must be incriminating material or materials for presuming that the accused has committed and offence triable under Chapter XIX, Code of Criminal Procedure for framing a charge against the accused, otherwise a charge against the accused would be groundless and the accused shall he discharged. In other words, if there is no incriminating material then the charge against the accused would be groundless and there would be no ground for presuming that the accused has committed an offence triable under chapter XIX, Code of Criminal Procedure. This view finds support from the decision of the Supreme Court in Century Spinning and Manufacturing Co. Ltd. v. The State of Maharashtra : AIR 1972 SC 545. The Supreme Court in that case observed:

Reading the two Sub -sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless.

If the charge against the accused would be groundless the High Court in the exercise of its power under Section 482, Code of Criminal Procedure can quash the proceeding against the accused in the initial stage for the reasons that the order framing the charge/charges does substantially affect the person's liberty and as such the court must not automatically frame the charge, The Court has to judicially examine the materials. In State of Karnataka v. D. Muniswamy, AIR 1971 SC I489, the Supreme Court, held:

...the order framing the charge effects a person's liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing of the charge.

(emphasis added)
The learned Counsel for the Petitioner, Mr. Ch. Nongal Singh submits that the materials appearing against him are:
1. the name of the Petitioner is mentioned in the FIR, and

2. the Petitioner was seen along with the other two near the place of occurrence on the day of Occurrence before the occurrence.

He submits that these are not incriminating materials and that even if these are taken to be incriminating material the charge against the Petitioner would be groundless. Therefore, the Petitioner should be discharged under Section 239, Code of Criminal Procedure. The learned public Prosecutor submits that the owner of the parts of the machine, Ibotombi Singh, lodged the FIR against the Petitioner and the two others with the Officer in charge of Lamsang Police Station. He further submits that in the FIR it was stated that Petitioner and the two others had committed theft of the parts, I have perused the FIR and the statement of botombi Singh under Section 161, Code of Criminal Procedure. He is not an eye witness. The statement under Section 161, Code of Criminal Procedure support the submission of the counsel for the Petitioner, The FIR is not substantive evidence. It can only be used to contradict or to corroborate the evidence of the informant. The fact that the Petitioner was seen in company with the two others near the place of occurrence on day of occurrence before the occurrence does not warrant the framing of the charge.

(3.)FOR the foregoing reasons, the petition is allowed so far as the Petitioner is concerned and the charge framed against him is quashed and the Petitioner, Sanasam Indra Singh is discharged. The Bail Bond, if any, is hereby cancelled. This judgment and order is without prejudice to the trial of the other two (accused persons).
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