Swarna Ranjan Patra And vs State Of Odisha
2023 Latest Caselaw 8738 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLMC No. 1559 of 2023
            Swarna Ranjan Patra and            ....              Petitioners
            another

                                                       Mr. B.N. Mohapatra,
                                                                 Advocate
                                          -Versus -
            State of Odisha                                    Opp. Party
                                               ....
                                                           Mr. S. Mishra,
                                               Additional Standing Counsel
                       CORAM:
                         JUSTICE SASHIKANTA MISHRA

                                      ORDER

08.08.2023 Order No.

7. 1. This matter is taken up through hybrid mode.

2. Heard Mr. B.N.Mohapatra, learned counsel for the petitioners and Mr. S. Mishra, learned Additional Standing Counsel for the State.

3. The petitioners are facing trial in Special Case No. 18 of 2022 in the Court of learned Sessions Judge- cum-Special Judge, Keonjhar. In the present application filed under Section 482 of Cr.P.C. questions the legality and correctness of the order dated 09.03.2022 whereby the petition filed by him to discharge him from the offence under Section 3 of SC & ST Act was rejected.

4. The facts of the case are that basing on an FIR lodged by the S.I. of Keonjhar Town P.S. Case No. 286 of 2020 was registered under Sections 302/201 of IPC.

Charge sheet was submitted also for the aforementioned offences on 04.02.2021 keeping the investigation open under Section 173(8) of Cr.P.C. Cognizance was taken of the aforementioned offences by learned S.D.J.M., Keonjhar by order dated 05.03.2021. Thereafter, charge was framed and trial commenced in course of which, two witnesses were examined. At this stage, the I.O. submitted an additional charge sheet on 28.01.2022 adding the offence under Section 3(2)(v) of SC & ST (POA) Act. This was based on certificate issued by the Tahasildar, Bonth indicating the caste particulars of the deceased and the victim of the case. Basing on such supplementary charge sheet, the court below took cognizance of the offence additionally under Section 3 of SC & ST Act by order dated 09.03.2022. The petitioners thereafter filed a petition for discharge which came to be rejected by the order impugned.

5. Mr. Mohapatra submits that the court below has not considered the fact that under the scheme of the Code of Criminal Procedure, there is no scope for submission of supplementary charge sheet, once trial has commenced. He has referred to a judgment passed by the Apex Court in the case of Vinubhai Haribhai Malaviya and others vs. State of Gujarat and another, reported in AIR 2019 SC 5233.

6. Mr. Sitikanta Mishra, learned State Counsel has fairly submitted that as per the ratio of the decision in

Vinubhai Haribhai Malaviya (supra). There is no provision for submission of additional charge sheet after commencement of trial.

7. To appreciate the contentions as referred above, it would be apposite to refer to the judgment of the Apex Court in Vinubhai Haribhai Malaviya (supra). After considering the various provisions of the Code of Criminal Procedure, the Apex court observed as follows:-

"86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice."

"19. With the introduction of Section 173(8) in the Cr. PC, the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite obviously, this power continues until the trial can be said to commence in a criminal case. The vexed question before us is as to whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173."

(Emphasis added)

8. Thus, the power of the Investigating Agency to submit further charge sheet gets culminated once trial commences. Of course the Court is not powerless to add offences, if the evidence so suggests by taking recourse to the provision under Section 319 of Cr. P.C.

But as per the scheme of Code of Criminal Procedure and as held by the Apex Court in the case referred above, cognizance could not have been taken afresh once trial had commenced. Reading of the impugned judgment reveals that the court below has not considered the question of maintainability of the supplementary charge sheet submitted after commencement of trial and has apparently taken the same as granted. However, in view of what has been discussed hereinbefore, it is obvious that the court below fell into an error in doing so. This Court further finds that the court below has undoubtedly referred to Vinubhai Haribhai Malaviya (supra) in his order but appears to have misconstrued the ratio to hold that the

same only refers to the power of the Magistrate to order further investigation under Section 173(8) of Cr.PC. While the Apex Court did in fact refer to such aspect yet, at the same time it also referred to the different stages of a criminal proceeding as has been quoted hereinabove.

9. Under such circumstances, this Court is persuaded to hold that the reasoning adopted by the court below is untenable in the eye of law. To such extent therefore, the impugned order cannot be sustained.

10. In the result, the CRLMC is allowed. The impugned order is quashed. The court below is directed to pass necessary orders to discharge the petitioners from the offence under Section 3 of the SC & ST Act. This Court would of course hasten to add that this order shall not be taken as a bar for the court below to consider adding of any offence in accordance with law if any material surfaces in the evidence during trial by resorting to the provision under Section 319 of Cr.PC.

(Sashikanta Mishra) Judge B.C.Tudu

Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 23-Aug-2023 18:51:49