TUSHAR SURYAKANT TRIVEDI v. STATE OF GUJARAT

Judgment

#1. By way of the present Criminal Revision Application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), the applicant-original accused has challenged the legality, propriety and correctness of the order dated 01.08.2023 passed by the learned Metropolitan Magistrate, Court No.1, Ahmedabad, below Ex.5 in Criminal Case No. 341 of 2023, whereby the application filed by the applicant under Section 239 of the Cr.P.C. seeking discharge has been rejected.

The brief facts giving rise to the present revision application are as under:

2.1 The applicant is the original accused against whom a complaint has been filed before Kagadapith Police Station, R/CR.RA/1349/2023 ORDER DATED: 14/10/2025 Ahmedabad City under Sections 406, 420 and 506(1) of the Indian Penal Code, 1860 (for short, "IPC"), being FIR No. I- 11191025220904 of 2022. After completion of investigation, the Investigating Officer has filed the chargesheet being Criminal Case No. 341 of 2023 before the Court of the learned Metropolitan Magistrate, Court No.1, Ahmedabad. The applicant received summons from the learned Court and appeared on 03.01.2023 and obtained a copy of the chargesheet along with other papers. The next date was fixed as 01.03.2023. On 01.03.2023, after obtaining the copy of the chargesheet, the applicant filed an application under Section 239 of the Cr.P.C. seeking discharge, which came to be rejected by the learned Court vide the impugned order dated 01.08.2023, inter alia, observing that charges have already been framed on 01.03.2023 (i.e., the date on which the copy of the chargesheet was supplied to the accused). Hence, this revision application.

#3. Learned advocate Mr. Manish J. Patel for the applicant has submitted that the chargesheet in connection with the offence has been registered on 03.01.2023. On the very same day, a plea has been recorded followed by framing of charge. Thereafter, as per the submissions advanced by the learned advocate for the applicant, the matter in question was adjourned to 01.03.2023, wherein the applicant moved an application while invoking the provisions of Section 239 of the Code of Criminal Procedure, 1973 seeking to discharge the applicant from the array of accused in connection with the aforesaid offence. The copy thereof seems to R/CR.RA/1349/2023 ORDER DATED: 14/10/2025 have been duly received by the other side. It further transpires that after hearing the parties, the learned Metropolitan Magistrate has been pleased to reject the application on 01.08.2023. Thus, without much delving upon the reasonings assigned by the learned Metropolitan Magistrate while confining the issue that the chargesheet in question has been filed on 03.01.2023 followed by registration of Criminal Case No. 341 of 2023. It further transpires that as discussed in the aforesaid paragraph that the charge has been framed on the same day without affording an opportunity to the applicant as admittedly the case papers have been handed over on the same day. Thus, it appears that the applicant was not afforded opportunity to place its case by any mode including by way of filing an application under Section 239 of the Code of Criminal Procedure, 1973 seeking discharge from the array of accused. Prior thereto charge has been framed. Once the charge has been framed, subsequently the application would not survive, which emerges otherwise would not be maintainable on view of the charges framed by the concerned Court. However, considering the facts of the case on hand, the charge was framed on the day of receipt of chargesheet, so the charge having been framed against the applicant. Feeling aggrieved and dissatisfied with the aforesaid order, the applicant has sought the following reliefs: “(A) Your Lordship may be pleased to admit and allow this criminal revision application and impugned order dated 01.08.2023 (Ex. 5) may be quashed and set aside and the accused may be discharged; OR R/CR.RA/1349/2023 ORDER DATED: 14/10/2025 After allowing this application, matter to be remanded back to learned Metropolitan Magistrate Court No.1, Ahmedabad to reconsider in light of Sections 239 and 240 of Cr.P.C. as if no charge has been framed. (B) Your Lordships may be pleased to stay the further proceedings of Criminal Case No. 341 of 2023 pending in court of learned Metropolitan Magistrate Court No.1, Ahmedabad till admission and final disposal of the present application. To grant any other and further reliefs in favour of the (C) applicants, deemed fit just and proper in the interest of justice.”

#4. Having heard the learned advocate for the applicant and having gone through the materials on record including the impugned order, the short question that falls for consideration of this Court is as to whether the learned Metropolitan Magistrate was justified in framing the charge against the applicant on the very same day i.e., 01.03.2023, when the copy of the chargesheet along with the relevant documents was supplied to the applicant, without affording any opportunity of hearing to the applicant as contemplated under Section 239 of the Code of Criminal Procedure, 1973 before proceeding to frame the charge under Section 240 thereof.

#5. It is the specific case of the applicant that on 03.01.2023, upon appearance pursuant to summons, the applicant was supplied with the copy of the chargesheet and other documents on the very same day and the matter was adjourned to 01.03.2023 for further proceedings. However, surprisingly, on 01.03.2023 itself, without affording any opportunity to the applicant to go through the R/CR.RA/1349/2023 ORDER DATED: 14/10/2025 chargesheet papers and without hearing the applicant on the aspect of discharge under Section 239 of the Cr.P.C., the learned Metropolitan Magistrate proceeded to frame the charge under Section 240 of the Cr.P.C. It is only thereafter that the applicant could file the discharge application on the very same day i.e.,

01.03.2023, which has been rejected by the impugned order on the ground of maintainability after framing of charge.

#6. In the instant case, as rightly pointed out by the learned advocate for the applicant, the copy of the chargesheet was supplied to the applicant on 03.01.2023 and the next date was fixed as 01.03.2023 for further proceedings. However, on

01.03.2023, without allowing the applicant any time to scrutinize the chargesheet documents and without affording any opportunity of hearing under Section 239 of the Cr.P.C., the learned Metropolitan Magistrate straightaway proceeded to frame the charge under Section 240 of the Cr.P.C. This procedure adopted by the learned Magistrate is in gross violation of the mandatory provisions of Sections 239 and 240 of the Cr.P.C., as it deprives the applicant of a fundamental opportunity to seek discharge if the charges are found to be groundless. The handing over of the chargesheet copies on the same day as the framing of charge does not satisfy the requirement of procedural fairness, as the accused cannot be expected to effectively exercise his right to be heard without adequate time to review the materials against him. Even though there is no statutory bar under the Cr.P.C. preventing the framing of charge on the same day as the receipt of the R/CR.RA/1349/2023 ORDER DATED: 14/10/2025 chargesheet, in the present facts, the absence of any hearing renders the framing of charge premature and vitiated.

#7. In the present case, the applicant, upon realizing the procedural lapse, immediately filed the discharge application on

01.03.2023 itself, which indicates bona fides and not any dilatory tactic. The rejection of the said application solely on the ground that charge has already been framed, without addressing the merits or the procedural irregularity in framing the charge, is erroneous in law. The impugned order dated 01.08.2023 passed below Ex.5 by the learned Metropolitan Magistrate, Court No.1, Ahmedabad in Criminal Case No. 341 of 2023, whereby the discharge application under Section 239 of the Cr.P.C. has been rejected, therefore, cannot be sustained and deserves to be set aside.

#8. In view of the aforesaid, the learned advocate for the applicant has fairly submitted that since the charge has already been framed by the learned Metropolitan Magistrate, pendency of the application under Section 239 of the Cr.P.C. would not serve any purpose and therefore, the applicant is required to be afforded opportunity; however, the alternative relief in the form of remanding the matter back to the learned Metropolitan Magistrate so as to reconsider the provisions of Section 239 of the Cr.P.C. and the said fact seems to have been conceded. Thus, in view of the aforesaid, the present application is allowed in terms of prayer (B). The learned Metropolitan Magistrate, Court No.1, Ahmedabad R/CR.RA/1349/2023 ORDER DATED: 14/10/2025 is directed to reconsider the discharge application filed by the applicant under Section 239 of the Code of Criminal Procedure, 1973, without being influenced by the observations made in the impugned order or by this order, and decide the same on its own merits in accordance with law.

#9. No order as to costs. Registry to send a copy of this order to the learned Metropolitan Magistrate, Court No.1, Ahmedabad for compliance.

#10. Record and Proceedings, if received, be sent back. MVP Original copy of this order has been signed by the Hon'ble Judge. (R. T. VACHHANI, J)