S.B. Sinha, J. - (1.) In this reference under Section 395(2) of the Code of Criminal Procedure the two points which are to be decided by this Court are as follows: 1. Whether the learned Judge is competent to take the plea of the accused persons after framing of charges in respect of the offences not exclusively triable by the court of sessions when he decides to send back the ease under Section 228(1) of the Code of Criminal Procedure. 2. Whether in this case the learned Magistrate, who will hold the trial, will take the plea of the accused persons again in accordance with Section 240(2) of the Code of Criminal Procedure.
(2.) On the basis of a complaint lodged by one Shri Jyotiprokash Khan, Amherst Street P.S. Case No. 34 dated February 3, 1994, under Sections 148, 149, 448, 427, 325 and 307 of the Indian Penal Code and Section 25 (1B)/27 of the Arms Act was registered. On completion of investigation a charge sheet was submitted by the Police under Sections 148, 149, 448, 427, 326 and 307 Indian Penal Code against 20 accused persons. As the offence under Section 307 Indian Penal Code is exclusively triable by the court of Sessions, the case was committed to the court of the learned Chief Judge, City Sessions Court. At the stage of framing of charge after hearing the learned Public Prosecutor in charge as well as the learned Lawyers for the accused persons and after considering the records of the case the learned Judge was of the opinion that the ingredients of an offence under Section 307 of the Indian Penal Code are not inexistence in the present case and accordingly he framed charges against all the accused persons under Sections 148, 149, 448, 427, 324 and 326 of the Indian Penal Code. It appears further that after framing of charges the learned Judge took the plea of the accused persons. Thereafter the learned Judge sent back the case to the court of learned Additional Chief Metropolitan Magistrate. Calcutta for trial of the case under the provision of Section 228(1) of the Code of Criminal Procedure. Section 228(1) of the Code of Criminal Procedure enjoins framing of charge by the learned Judge against the accused persons but the said section does not provide for taking of plea of the accused persons by the learned Judge. Accordingly this reference was made to this Court for deciding the said question as referred to above.
(3.) Framing of charge by a Criminal Court is a decision of the Court which precedes trial and in all cases, except summons cases, such decision is to be arrived at mandatory after; i) considering materials available on record and ii) on hearing both the parties to the proceedings. It must not be lost sight of that the stage of framing of charge is also the stage of discharge of the accused if the materials on record fall short of required quality to warrant framing of charge. At this stage of the proceeding (framing of charge) the court must apply its mind to the issue of framing of charge or discharging the accused very diligently. Casualness in the approach of the Court at the stage is totally forbidden.;