Ranu @ Rashmirekha Ratha @ Rashmi ... vs State Of Odisha
2021 Latest Caselaw 4704 Ori

                        IN THE HIGH COURT OF ORISSA, CUTTACK
                                  CRLREV No.121 of 2020
                   1.   Ranu @ Rashmirekha Ratha @ Rashmi Prava Rath
                   2.   Manu @ Manaswini Panda @ Manaswani Panda
                   3.   Puspanjali Mishra
                   4.   Ranjit Kumar Mishra           ... Petitioners
                                          -versus -
                   State of Odisha                       ... Opp. Party

                        CORAM : HON'BLE SHRI JUSTICE S. PUJAHARI

                             ORDER

06. 07.04.2021 This matter is taken up through video conferencing mode.

2. Heard learned counsel for the petitioners and learned counsel for the State.

3. This Criminal Revision has been filed by the petitioners with a prayer to set aside the order dated 25.01.2020 passed by the learned Asst. Sessions Judge, Dhenkanal in C.T (Sessions) No.121 of 2015, refusing to discharge the petitioners in the aforesaid case where they have been sent up for trial for alleged commission of offences under Sections 498-A/323/294/506/307/34 IPC.

4. As it appears, in the aforesaid case, the accused- petitioners filed a petition for discharge on the ground that, no prosecutable evidence is there against them in the said case. Learned Asst. Sessions Judge rejected such prayer of the petitioners on the ground that appreciation of evidence being impermissible at the stage of framing of charge, such

prayer of the petitioners was without any substance more particularly when charge can be framed on grave suspicion.

5. In the case of State of Bihar v. Ramesh Singh, reported in (1977) 4 SCC 39), the apex Court have held as follows :

"Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the

conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section

227."

6. In the case of State of Maharashtra v. Priya Sharan Maharaj reported in (1997) 4 SCC 393, the apex Court have held that at the stage of Sections 227 and 228, Cr.P.C the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to

accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

7. So also, in the case of Om Wati v. State reported in (2001) 4 SCC 333, the apex Court have held that it is the statutory obligation of the High Court not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the court in the face. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law.

8. As it appears learned counsel for the petitioners in the trial court appears to have sought for discharge drawing to the notice of the court to the discrepancy, contradiction in the incriminating materials, collected during investigation. The trial court, however, making detailed discussion on the same refused to accept such prayer. A detailed discussion of the evidence was not the requirement on the part of the trial

court at that stage. However, considering the law laid down in the case of Ramesh Singh, Priya Sharan Maharaj and Om Wati (supra), this Court finds no illegality or infirmity in the order passed by the trial court rejecting the prayer of the petitioner inasmuch as it cannot be said that absolutely no prosecutable evidence is there against the petitioners in the case in question and they have been proceeded on surmises and conjectures.

9. Accordingly, the Criminal Revision filed challenging the impugned order is devoid of merit.

10. However, while parting with the case, I cannot refrain myself from observing the fact that the trial courts are frequently entertaining the petition filed under Section 227 Cr.P.C. to discharge the accused independently, even if a case has not been opened by the public prosecutor, and making a reasoned order of the same. The same is against the scheme of the Code. Entertaining such petition before the public prosecutor opens the case to describe the charge against the accused and state by what evidence he wants to prove the charge brought against the accused, the accused has no scope to pray for discharge in a session trial. It is only after public prosecutor opens the case describing the charge then the accused whether files a petition or not for discharge has to be heard on his contention to discharge, if any, and the public prosecutor be asked to have a response on the same, then a reasoned order under Section 227 Cr.P.C., if

discharge the accused made, is required to be passed and if the same has no merit, order for framing of charge under Section 228 Cr.P.C is required to be passed. Therefore, there is no requirement that a reasoned order on the prayer, even if the same is rejected, is required to be passed. But the same appears to be more observe in breach inasmuch as independent petitions under Section 227 Cr.P.C. are being entertained before the case is posted for charge and the public prosecutor opens the case under Section 226 Cr.P.C making such a prayer earlier to the stage under Section 226 Cr.P.C is nothing but asking the trial court to review the order of cognizance and proceeding against the accused. A jurisdiction which is not available to the trial court in view of the law laid down by the apex Court in the case of Adalat Prasad vs. Rooplal Jindal & others, reported in 2004 (29) OCR (SC) 264 wherein it has been held, as follows:

"15. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's

case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

16. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.

17. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law."

11. Therefore, this Court expects the trial court hereinafter shall do well not to entertain such petition independently before a case is posted for framing of charge in the presence of the accused and also not to pass such a

reasoned order even if the prayer made under Section 227 Cr.P.C. is without any substance making a detailed discussion on the contention raised vis-à-vis the materials on record.

With the aforesaid observation, this Criminal Revision stands disposed of.

As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.

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PKS                                              S.Pujahari, J.