Bijaya Mahakud @ vs State Of Odisha And Another
2023 Latest Caselaw 1429 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLREV No. 395 of 2019

      An application under Section 401 of the Code of Criminal
      Procedure, 1973 against the order dated 27.02.2019
      passed by learned Special Judge, Champua in Special
      Case No.08 of 2018
                              ------------------

      Bijaya Mahakud @
      Bijaya Kumar Mahakud                  ......     Petitioner

                                  -Versus-

      State of Odisha and another           .......   Opp. Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________

        For Petitioner    :       Mr. Dayanidhi Mishra,
                                  Advocate.

        For Opp. Parties :      Mr. S.N. Das,
                                Addl. Standing Counsel
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                            JUDGMENT

th 10 February, 2023

SASHIKANTA MISHRA, J.

The petitioner is aggrieved by order dated

27.02.2019 passed by learned Special Judge, Champua in

Special Case No. 08 of 2018, whereby his prayer for

discharge from the case was rejected.

2. Heard Mr. D.Mishra, learned counsel for the

petitioner and Mr. S.N. Das, learned Addl. Standing

Counsel for the State.

3. Mr. D. Mishra, learned counsel for the

petitioner submits that there is no mention in the FIR or

any of the documents produced by the prosecution that

the alleged offence took place only because the

informant/victim belonged to the Schedule Tribe

community, which is sine qua non for registering a case

under Section 3 of the SC & ST (PA) Act, 1989. Moreover,

the incident admittedly did not occur in a public place.

Mr. Mishra further submits that there is clear evidence

that the petitioner was not present at the spot during the

occurrence. He has referred to a judgment passed in

CRLMC No. 2628 of 2013 in the case of (Surendra

Kumar Mishra vs. State of Orissa and another) by a

coordinate Bench of this Court to buttress his contention

as above.

4. Per contra, Mr. S.N. Das has submitted that

the judgment of the coordinate Bench of this Court is

clearly distinguishable on facts inasmuch as in that case

the petitioner had suddenly out of anger abused the

informant. According to Mr. Das, such is not the case in

the present case.

5. It is trite that at the time of framing charge,

the Court is not expected to make a roving enquiry to

weigh the materials and evidence on record to find out

whether the same are sufficient to return a finding of guilt

against the accused. All that the Court is required to do at

that stage is to form a presumptive opinion as regards

commission of the alleged offence. In other words, if the

facts and materials on record arouse a strong suspicion

that the accused had committed the offence, it is adequate

for the Court to frame charge. It is also well settled that

the defence of the accused cannot be considered at the

stage.

6. Coming to the facts of the present case, a

perusal of the FIR reveals that on the date of occurrence

in between 11.30 to 11.45 p.m., the accused is said to

have abused the informant in obscene language and by

specifically referring to her caste. Further, such incident

also took place outside the house of the informant. A

reading of the judgment rendered by a coordinate Bench

of this Court in Surendra Kumar Mishra (supra) reveals

that the same was rendered entirely on different facts and

also by relying upon the decision of the Supreme Court in

the case of Hitesh Verma v. The State of Uttarakhand

and ors. reported in (2020) 10 SCC 710.

7. In Hitesh Verma (supra), the Apex Court held

that all insults or intimidations to a person will not be an

offence under the Act unless such insult or intimidation is

on account of the victim belonging to Scheduled Caste or

Scheduled Tribe. In the instant case, it appears that the

informant belongs to Schedule Tribe community i.e.,

"Oram". Though the word 'Oram' has specifically not been

mentioned in the FIR, yet other words such as, "sala,

kulha, pana, kuda, majjhi, chhotlok" etc. have been used.

The Court below has taken note of these words said to

have been uttered by the accused as per the FIR. The use

of these words, prima facie, suggest commission of the

offence under Section 3(1)(r) of the SC & ST (PA) Act.

Farther, the points raised by the petitioner-accused are

such as can be raised also at the time of trial but the

same cannot be a ground to find fault with court below in

refusing to discharge the petitioner.

8. For the foregoing reasons therefore, this

Court is not inclined to interfere with the impugned order.

9. The CRLREV is therefore, dismissed.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 10th February, 2023/ A.K. Rana.