Orissa High Court
Afr Rangalata Behera And Others vs State Of Odisha And Another on 6 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 827 of 2023
(An application under section 482 of Cr.P.C.)
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AFR Rangalata Behera and Others ...... Petitioners
-Versus-
State of Odisha and another ....... Opposite Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/S. S.G.Das, R.Behera,
Advocates.
For Opp. Parties : Mr. S.K.Mishra
Additional Standing Counsel
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
6th April, 2023
SASHIKANTA MISHRA, J.
The petitioner are facing trial along with some others
in S.T. Case No. 303 of 2022 pending in the Court of learned
Ad hoc Additional Sessions Judge, Soro. In the present
application vide under Section 482 of Cr.P.C., they seek to
challenge the order dated 18.01.2023 passed by the Court
below in framing charge against them for the offence under
Section 509/34 IPC read with Section 67/67-A of the I.T.
Act.
2. Brief facts, relevant only for deciding the present
application are that an FIR was lodged on 24.01.2021 by
one 'X' before the IIC Soro P.S. alleging that she was
sexually assaulted by her son in law, 'Y' on several
occasions. She further alleged that some objectionable
videos showing her with son-in-law had been circulated by
the accused 'Y' on social media platform and that the said
Video and Audio clips were sent to the present petitioners
and other villagers, who circulated it further. Basing on
such report, Soro P.S. Case No. 458 of 2021 was registered
under Sections 376 (2) (f)/376(2)(n)/(507) of IPC read with
Section 6 Section 67/67-A of the I.T. Act, 2000 followed by
investigation. Subsequently, charge-sheet was submitted
under the aforementioned Sections against the principal
accused 'Y' and Sections 509/34 of IPC read with Section
67/67 A of the I.T. Act against the present petitioners.
Learned JMFC, Soro, took cognizance of the offences. By
order dated 18.01.2023, charge was framed against the
petitioners for the aforementioned offences.
3. Heard Mr. S.G. Das, learned counsel for the petitioner
and Mr. S.K. Mishra, learned Additional Standing Counsel
for the State.
4. Mr. Das has argued that there is absolutely no
material to show commission of the alleged offences by the
present petitioners for which framing of charge against them
for the offences in question is bad in law. Mr. Das further
argued that the case has been foisted against the petitioners
merely on suspicion and without any cogent evidence.
5. Mr. S.K. Mishra, on the other hand contends that at
the stage of framing charge the court is required to sift the
materials on record only to find out if there is prima facie
evidence of commission of the alleged offences by the
accused persons. It is not excepted of the court to make a
deep scrutiny of the materials on record as the same can
only be done in course of trial.
6. Before proceeding to examine the merits of the rival
contentions, this Court would like to keep in perspective the
law relating to framing of charge. In the case of Union of
India vrs. Prafulla Kumar Samal and Anr. reported in
(1979) 3 (SCC) 4 it was held as follows by the Apex Court:
"(1) That the judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be fully
justified in framing a charge and proceeding with the
trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible
and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present
Code is a senior and experienced court cannot act
merely as a post office or a mouthpiece of the
prosecution, but has to consider the broad probabilities
of the case, the total effect of the evidence and the
documents produced before the Court, any basic
infirmities appearing in the case and so on. This
however does not mean that the judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial".
7. Keeping in above principles in view and on
examination of the materials on record, this Court finds that
from FIR the main allegation is against the principal
accused namely, 'Y'. In so far as the present petitioners are
concerned, it is alleged that the principal accused sent the
objectionable Audio and Video Clips to one Surendra Jena
and one Rangalata Behera and other villagers and that they
have further circulated it. The same thing has been
indicated in the charge-sheet. There is no mention as to
whom the clips were circulated. In the charge-sheet, the
names of two other persons namely, Prabhakar @ Panua
Behera and Ajaya kumar Sankhua were included. It is
however not mentioned as to whom was the objectionable
Audio and Video Clips sent by the aforementioned persons
(petitioners). The case record further reveals that no mobile
phone was seized from the possession of the present
petitioner. According to the Section 161 statement of the
informant, who is the daughter of the victim and wife of 'Y',
the accused 'Y' allegedly sent the video to one Bhima
(husband of petitioner No.1) who showed it to the other
three petitioners and that Rangalata's mobile was damaged.
Thus there is nothing to show that the objectionable videos
are available in the mobile phones belonging to the
petitioners and that they were forwarded/circulated to any
other person.
8. From a bare reading of the provision under Section 509
of IPC it is clear that to bring home the charge it must be
established that the accused uttered some words or made
sounds or gestures or exhibited any object or intruded upon
the privacy of a woman with the intention that the same
should be heard or seen by the woman. In the absence of
any evidence worth the name to show that the petitioners
were in possession of any objectionable Audio and Video
Clips and that they had exhibited the same to any other
person, the basic ingredient necessary to constitute the
offence under Section 509 is conspicuously lacking. Such
being the case, the offence under Section 67/67-A of the I.T.
Act would also not be made out.
9. All that the materials on record seem to suggest is,
merely a suspicion that the present petitioners may have
circulated the objectionable materials, which in view of the
ratio laid down in Prafulla Samal (Supra), is not sufficient to
frame charge against them.
10. This Court finds considerable force in the contentions
advanced on behalf of the petitioners so as to persuaded to
accept the same and to hold that the impugned order
warrants interference.
11. In the result, the CRLMC is allowed. The impugned
order is hereby quashed. Consequently, the proceedings in
S.T. case No. 303 of 2022 of the Court of learned Ad hoc
Additional Sessions Judge (FTSC) Balesore in so far as it
relates only to accused Rangalata Behera, Surendra Jena
alias Kalu, Prabhakar @ Panu Behera and Ajaya Kumar
Sankhua are hereby quashed.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
6th March, 2023/ Deepak Parida,
