Orissa High Court
Manoj Kumar Jena & Others vs Manoj Kumar Jena & Others on 5 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV NO. 327 OF 2023
Manoj Kumar Jena & Others .... Petitioners,
Mr.Anshuman Ray, Advocate
-versus-
Manoj Kumar Jena & Others .... Opposite Parties.
Mr. S.K. Naya, AGA.
CORAM:
MR. JUSTICE D.DASH
ORDER
Order No. 05.07.2023
05. 1. This matter is taken up through hybrid arrangement
(virtual/physical) mode.
2. Heard.
3. Admit.
On consent of the learned Sr. Counsel for the
Petitioners and the learned Counsel for the Opposite Party;
the Revision is heard on merit. Record as placed are perused.
(D. Dash),
Judge.
ORDER
Order No. 05.07.2023
06. 1. The Petitioners by filing this Revision has called in
question the legality and propriety of an order dated
09.05.2023 passed by the learned Sessions Judge, Balasore
in S.T. Case No.250 of 2019.
By the same, the prayer of these Petitioners (accused
persons) for their discharge from facing the trial for
commission of the offence under section-302 of the IPC has
been rejected.
// 2 //
2. Mr. D.P. Dhal, learned Sr. Counsel appearing for
the Petitioners inviting the attention of this Court to the
impugned order submits that the Trial Court for the purpose
of rejecting the application filed by these Petitioners under
section-227 of the Cr.P.C. has relied upon the judgment of
the Apex Court in case of Rajbir @ Raju and Another Vrs.
State of Haryana; (2011) 1 OLR 341. He further submits that
the later decision of the Hon'ble Apex Court in case of
Jasvinder Saini and Others Vrs. State (Government of NCT
of Delhi); (2013) 7 SCC 256 has however not been
considered by the trial Court in its proper perspective. He
submitted that when the materials on record are there to
show that the death of the deceased was on account of
hanging without intervention of any third hand, the charge
under section-302 of the IPC is groundless. He submitted
that in the subsequent decision of the Apex Court in case of
Jasvinder Saini and Others (supra), clarified the earlier
decision in case of Rajbir @ Raju and Another (supra) has
been clarified by ruling that the course of addition of or
alteration of the charge under section-302 of the IPC in such
cases of death of women within seven years of marriage with
the allegation of demand of dowry and torture on account of
non-fulfillment of the same should not be adopted in a
routine manner and for the purpose, the Court must look into
the materials available on record in support of the
commission of offence under section-302 of the IPC, which
according to him in the present case do not surface. He
// 3 //
therefore, submitted that the impugned order not only suffers
from vice of irregularity but also illegality.
3. Learned Counsel for the State as well as the
Informant submit that when charge has already been framed
for commission of offence under section-302 of the IPC and
the trial has commenced, the Petitioners would always be at
liberty to raise the question as to lack of material in support
of commission of offence under section-302 of the IPC for
being considered in the trial and therefore, according to them
at this stage, the Revision is not entertainable.
4. Keeping in view the submissions made, I have
carefully read the order impugned in this Revision. I have
also gone through the copy of the F.I.R. and Final Form
which have been annexed to the Revision petition.
5. On completion of investigation, the Petitioners have
been placed to face the trial for commission of offence under
section-498-A/304-B/306/34 of the IPC and section-4 of the
D.P. Act. Accordingly, cognizance for the said offences was
taken, but then the Trial Court in addition to the charges
framed for the above offences has also framed the charge for
the offence under section-302 of the IPC.
The submission of the learned Senior Counsel for the
Petitioners in my considered opinion holds water that such
addition of charge under section-302 of the IPC in such cases
where the allegations are made with regard to the demand of
dowry and torture on account of non-fulfillment of the same
and the death of the woman has taken place within a period
// 4 //
of seven years of marriage is not to be taken recourse to in a
routine manner. However, by now when the charge has been
framed for the offence under section-302 of the IPC and the
trial has commenced, since these Petitioners have all the
scope and opportunity to contend regarding non-
establishment of the said offence, this Court finds that the
Petitioners would in no way be prejudiced.
6. With the above observations, the Revision stands
disposed of.
Issue urgent certified copy as per rules.
(D. Dash),
Judge.
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 06-Jul-2023 18:34:15
