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Judgment
Learned counsel for the petitioner has submitted that it would be evident from order dated 30.08.2018 that the case was fixed for appearance of other co-accused. That the petitioner was present on that date and the court below observed that since the case was of the year 2009 and despite issuance of processes the co-accused had not appeared, therefore, the case record was split up. It is argued that on the same day, the matter was posted in the second-half.
It is argued that at the stage of charge no opportunity of hearing was given to the petitioner. The impugned order has been passed in violation of the provisions of Section 227 Cr.P.C. It is further argued that it would be evident that charge has been framed without recording any satisfaction by the court below as to whether ingredients for the offence under Sections 376,386 read with Section 120B IPC is made out or not against the petitioner. It is submitted that the occurrence as alleged in the F.I.R took place in the year 1985 whereas F.I.R was lodged in the year 1999 and there is no plausible explanation for the said abnormal delay. It is submitted that the matter was also investigated by the C.I.D who had exonerated the petitioner. That the court below has not considered the report in its correct prospective.
On the aforesaid ground it is prayed that the order framing charge is not tenable either in law or on facts and deserves to be set aside.
Learned counsel appearing on behalf of prosecutrix has submitted that the prosecutrix does not want to proceed with the case since she had lodged the F.I.R on the instigation and coaxing of someone.
Learned counsel for the State has submitted that the impugned order does not suffer from any illegality or impropriety.
Heard. Perused the certified copies of the order-sheets of the court below. The exposited facts disclose that the case was fixed for appearance of other co-accused. It also transpires that the case was never posted for hearing on charge. That on 30.08.2018 the court below had split up the case of co-accused and thereafter, the charge was framed against the petitioner on the same day. It is explicit from the order-sheets dated 30.08.2018 that the case was fixed for appearance of co-accused but splitting the record and then framing of charge on the same day by the court below tantamounts to denial of an opportunity of hearing to the petitioner. In fact, the court below, after splitting the record, should have posted the matter for hearing on charge. The petitioner should have been given an opportunity of hearing on charge to raise his defence for discharge. It is evident that the court below has not applied its judicial mind. In fact the order has been passed mechanically in a perfunctory manner without recording of satisfaction as to whether the ingredients for the offence under Sections 376,386 read with Section 120B IPC is made out or not against the petitioner.
In the attending facts and circumstances it is explicit that the order dated 30.08.2018 is not in accordance with law accordingly it is set aside.
The petitioner is at liberty to file a petition under Section 227 Cr.P.C in the court below. The court below, after giving an opportunity of hearing to the petitioner and the prosecution shall pass a reasoned and speaking order in the matter.
With the said direction the petition stands disposed off.