Orissa High Court

Deepak Kumar Das Adhikari vs State Of Odisha on 11 January, 2021

                    CORAM : HON'BLE SHRI JUSTICE S.PUJAHARI

                                   CRLREV No.20 of 2020

                          Deepak Kumar Das Adhikari
                          @ Tony @ Deepak Das Adhikari...     Petitioner
                                         - Versus -
                          State of Odisha            ...      Opp. Party

                                         ORDER

05. 11.01.2021 In the wake of the pandemic Covid-19, the

case is taken up through V.C.

2. Heard learned counsel for the petitioner and

learned counsel for the State.

3. This Criminal Revision has been filed by the

petitioner with a prayer to set aside the order dated

23.11.2019 passed by the learned Addl. Sessions

Judge-II, Mayurbhanj-Baripada in S.T. No.29 of 2019,

refusing to discharge the petitioner in the aforesaid

case where he has been sent up for trial for alleged

commission of offences under Sections

364/302/201/120(B)/ 457/380/34 of I.P.C.

4. According to the petitioner, there was no

prosecutable evidence against him, inasmuch as the

only material stated to have been collected against him

is the confession of the co- accused before the

police which is no evidence in the eye of law. However,

the trial court after hearing the petitioner as well as the

Public Prosecutor held that since there was previous

animosity between the petitioner and the deceased and

the co-accused is alleged to have made confessional

statement regarding conspiracy that was hatched by

Sk. Raju and the petitioner for kidnap and murder of

the deceased and that the petitioner had paid certain

amount to the co-accused, the petitioner has no case

for discharge.

5. Learned counsel for the petitioner submits

that the court below without appreciating the fact that

there was no sufficiency of materials and the materials

collected against him was no evidence in the eye of law,

rejected the prayer of the petitioner and as such, this

Court may call for the record and after examination of

the same, set-aside the impugned order and direct

discharge of the accused.

However, according to the learned counsel for

the State, the materials collected and produced by the

prosecution being sufficient to presume the accused-

petitioner to have committed the offence alleged, the

impugned order cannot be found fault with.

6. It is not disputed at the bar that on the date

the case was posted for charge, though some of the

accused persons were absent, but the hearing was

made on a petition filed under Section 227 of Cr.P.C.

(in short 'the Code') and the impugned order was

passed.

7. Before addressing the contentions of the rival

sides, it would be apposite to have a look on the

scheme of the Code. As per the scheme of the Code, a

case is said to have been instituted against a person

when cognizance is taken of the offence and he is

summoned to be proceeded against as an accused. At

the stage of cognizance of the offence committed, the

prospective accused being not there in picture, there is

no requirement that he should be heard at that stage.

Irrespective of the manner of initiation of the case,

whether on the police report or complaint, it is only

after the cognizance is taken and process is issued, the

accused has the option, to challenge the order of

cognizance or initiation of the proceeding against him

before the higher forum on the ground, inter-alia, that

no prima-facie case is made out against him for the

proceeding. However, if the accused could not do the

same and the case is one either triable by warrant

procedure or by sessions procedure, then he has to

wait till the case reaches the stage of charge to ventilate

his grievance before the trial court that the charge

against him is groundless or there are no sufficient

ground to presume that he has committed the offence

with exception that if the case is triable by warrant

procedure but instituted otherwise on a police report,

the Court prior to the same taking cognizance has

jurisdiction to discharge the accused as mandated in

Section 245(2) of the Cr.P.C. However, when a case is

triable by summon procedure or summary procedure,

the accused has absolutely no such scope to challenge

the proceeding in the trial court. But, such cases can

be dropped against the accused for non-prosecution, if

initiated on a complaint for non-appearance of the

complainant or due to the death of the

complainant and can also the complainant be allowed

to withdraw the complaint.

8. When the case is triable by the Court of

Sessions, after commitment when the case reaches the

stage of charge, the accused has to remain present to

answer the charge. On that day, the Public Prosecutor

has to first open his case as mandated under Section

226 of the Code by describing the charge that has been

brought against the accused and shall bring to the

notice of the court the nature of evidence by which he

proposes to prove the guilt of the accused. Thereafter,

if upon going through such documents along with the

case record, and hearing the submissions of the

accused and the prosecution in this behalf, the court

considers that there is not sufficient ground for

proceeding against the accused, it shall discharge the

accused and record his reasons for so doing. But, if on

consideration of the materials and upon hearing both

the sides as mandated under Section 227 of the Code,

if the court is of the opinion that there are grounds for

presuming the accused to have committed the

offence which is exclusively triable by the Court of

Sessions, it shall frame the charge accordingly and

read over and explain the same to the accused and

record his plea thereto. However, if it is of the opinion

that, no case is made out triable by the Court of

Sessions but some other offences are made out, then it

would frame charge of such offence and remit the case

to the learned Chief Judicial Magistrate or any other

Judicial Magistrate First Class with a direction to the

accused to appear before that court on date fixed. The

Magistrate concerned thereafter on receipt of the

record, shall proceed with the case as per warrant

procedure.

9. From the aforesaid, therefore, it emerges that

until and unless the case reaches the stage of charge

and the Public Prosecutor opens the case, the accused

has no scope to question the proceeding continued

against him pursuant to the order of cognizance passed

against him in the trial Court. It is only when the case

is posted for framing of charge and the Public

Prosecutor opens the case, the accused attains the

scope to enter into contest and agitate as to whether

the materials collected are sufficient to proceed against

him. For the said purpose, an independent petition in

writing is also not required nor it is the mandate of the

Code. If upon hearing under Section 227 of the Code,

the Court finds materials to draw a presumption guilt

against the accused, there is no need of a detailed

order, but to frame a charge is the mandate of Section

228 of Cr.P.C. But, in case upon such hearing, the

court finds that no offence is made out then while

discharging the accused, it has to record the reasons in

detail and pass a speaking order for discharging the

accused. The aforesaid is the position of law which can

be visualized from the case of State of Bihar v.

Ramesh Singh, reported in (1977) 4 SCC 39 and the

relevant portion is quoted herein below:

"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."

10. However, a peculiar tendency has

developed that before the case is posted for charge in

warrant procedure or the Public Prosecutor opens the

case if a case is triable by the Court of Sessions on the

date of charge, a petition is being filed for discharge

without the accused being present before the Court. It

is insisted that the discharge petition should be taken

up first and there be an exhaustive hearing followed by

a reasoned order so as to enable the accused, in case of

rejection of the petitioner to challenge the same

either by a Revision petition or through a petition

under Section 482 of Cr.P.C., as the case may be,

which practice is contrary to the mandate of law.