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CDJ 2026 MHC 7031 My Notes print Preview print print
Court : Before the Madurai Bench of Madras High Court
Case No : CRL. OP.(MD). No. 9076 of 2026 & Crl.MP(MD). No. 9725 of 2026
Judges: THE HONOURABLE MR. JUSTICE R. VIJAYAKUMAR
Parties : P. Rajasekaran Versus State Represented by The Sub Inspector of Police, Palanichettypatti Police Station, Theni
Appearing Advocates : For the Petitioner: P. Rajasekaran, Party-in party. For the Respondent: V. Shathurthi Raja, Government Advocate (Crl.side).
Date of Judgment : 25-09-2026
Head Note :-
BNSS Act - Section 528 -
Judgment :-

(Prayer: Criminal Original Petition is filed under Section 528 of BNSS Act, to set aside the order in Crl.R.P.No.33 of 2025 in Crl.M.P.No.2008 of 2023 on the file of the Principal Sessions Judge, Theni dated 02.02.2026.)

1. This Criminal Original Petition has been preferred by the first accused in Crime No.331 of 2022 on the file of the respondent police, assailing the order dated 02.02.2026 passed by the learned Principal Sessions Judge, Theni in Crl.R.P.No.33 of 2025, whereby the order of the learned Additional Mahila Court (Judicial Magistrate Level), Theni in Crl.M.P.No.2008 of 2023 came to be confirmed.

2. The records disclose that the First Information Report came to be registered for the offences punishable under Sections 294(b), 323, 355 and 506(ii) of IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002.

3. On completion of investigation, the respondent police filed a final report before the Mahila Court (JM Level), Theni on 25.11.2022, which was taken cognizance of in C.C.No.438 of 2022. Copies of the final report were furnished to the petitioner on 28.12.2022. On 06.01.2023, the petitioner filed a petition under Section 239 of Cr.P.C seeking discharge, which was returned on the very same day with a direction to effect service on the Public Prosecutor. On that day itself, the charges were framed, read over and explained to the petitioner, who denied the same. The petitioner re-presented the discharge petition on 19.01.2023, and it was once again returned on 27.01.2023, on the footing that the petition was not maintainable since charges had already been framed. Upon a further re-presentation on 27.02.2023, the discharge petition came to be numbered as Crl.M.P.No.2008 of 2023.

4. By order dated 29.07.2025, the learned Magistrate dismissed the discharge petition as not maintainable, charges having already been framed. Aggrieved thereby, the petitioner preferred Crl.R.P.No.33 of 2025 before the learned Principal District and Sessions Judge, Theni. The Revisional Court, by order dated 02.02.2026, dismissed the revision, observing that the accused, having taken part in the framing of charges without bringing to the notice of the Court that his discharge petition had been returned, cannot thereafter insist upon a hearing of the discharge petition. Challenging the said order, the present petition has been filed.

5. The petitioner, appearing as party-in-person, would contend that once a petition under Section 239 of Cr.P.C is filed and remains pending, the trial Court is bound to decide the same on merits, and unless it is dismissed, the Court cannot proceed to frame charges under Section 240 of Cr.P.C.

6. It is his further submission that the discharge petition filed on 06.01.2023 was returned only on a technical ground, namely, for want of service on the Public Prosecutor, and hence the trial Court ought not to have framed the charges on the very same day. According to him, the trial Court ought to have awaited the re-presentation and adjudicated the discharge petition on merits before proceeding to frame charges. He would also submit that his mere participation in the proceedings relating to framing of charges would not divest him of his statutory right to seek discharge under Section 239 of Cr.P.C. On these grounds, he would contend that both the Courts below erred in rejecting the discharge petition on the ground of maintainability, and would pray that the impugned orders be set aside and the trial Court be directed to consider the discharge petition on merits.

7. Per contra, the learned Government Advocate (Crl.side) appearing for the respondent would submit that no discharge petition was pending on the date of framing of charges, since it had already been returned. He would further point out that the discharge petition was re-presented only on 19.01.2023, i.e., after the charges were framed. Therefore, according to him, the orders of the trial Court and the Revisional Court dismissing the discharge petition do not warrant any interference.

8. This Court has heard the submissions made on either side and perused the materials available on record.

9. The chronology of events set out above is not in dispute. The grievance of the petitioner, in essence, is that the discharge petition filed by him on 06.01.2023 was returned only on a technical ground for effecting service on the Public Prosecutor, and the trial Court, without awaiting its representation, ought not to have framed the charges. According to him, an error committed by the trial Court in framing the charges cannot be held against him so as to non-suit his discharge petition.

10. It is admitted that the petitioner took part in the proceedings relating to framing of charges, answered the questions put to him and pleaded not guilty. At that stage, he neither raised any objection nor brought to the notice of the trial Court that his discharge petition had been returned. The discharge petition was re-presented only on 19.01.2023, nearly two weeks after the charges were framed. Though objections regarding maintainability were initially raised, the trial Court subsequently numbered the petition and dismissed it as not maintainable. Significantly, the petitioner has not chosen to challenge the framing of charges against him.

11. In such circumstances, once charges have been framed under Section 240 of Cr.P.C, the petitioner cannot be permitted to put the clock back and seek consideration of his discharge petition under Section 239 of Cr.P.C, merely on the ground that the said petition had been filed before the framing of charges and was later re-presented after curing the defects. It is only when a discharge petition is pending on the file of the trial Court that the Court is precluded from proceeding to frame charges. Where, as in the present case, no such petition was on the file of the trial Court, no fault can be attributed to it for having proceeded to frame charges under Section 240 of Cr.P.C.

12. In the light of the foregoing discussion, this Court finds no ground to interfere with the orders passed by the trial Court and the Revisional Court. The petition is devoid of merits. Accordingly, this Criminal Original Petition stands dismissed. Consequently, the connected miscellaneous petition is closed.

13. Having regard to the age of the petitioner, his personal appearance before the trial Court is dispensed with, unless the learned trial Judge specifically directs otherwise.
 
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