Orissa High Court
Durgasi Baleya @ D.Baleyya & vs State Of Odisha on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 4536 of 2023
Durgasi Baleya @ D.Baleyya &
Others .... Petitioners
Mr. Sanjay Kumar Pradhan, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. B.K. Ragada, AGA
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 13.11.2023
01. 1. Heard learned counsel for the Petitioners and the State.
2. By means of the present application, the Petitioners seek
indulgence of this Court with the prayer to quash the order dated
26.09.2023 passed by the learned 3rd Addl. Sessions Judge,
Berhampur, Ganjam in Sessions Trial No.204 of 2023, filed under
Annexure-4.
3. The background facts of the case are that the Petitioners who
allegedly to have committed the offence under Sections 147/148/
294/323/506/324/325/326/307/302/149, I.P.C. read with Sections 27
of Arms Act, moved a petition on 25.09.2023 before the learned
court below praying to call for the Chemical Examination Report
before the hearing on framing of charge. The Petitioners in their
petition, inter alia, contended that in para-16 of the charge-sheet the
I.O. has mentioned that the wearing apparels of the deceased,
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accused and biological materials collected by the M.O. have been
seized, and also the weapon of offence, i.e. one sword having
bamboo handle, one knife having plastic handle and one sword
having iron handle seized from the custody of the accused persons
and all the Exhibits have been sent to RFSL, Berhampur for
chemical examination.
4. According to the learned counsel for the Petitioners, Section 207
CrPC and Rule 50 of the G.R.&C.O.(Criminal) of the High Court of
Judicature, Orissa makes it imperative for the Magistrate to call for
the Chemical Examination Report along with the Police Papers and
supply the copy of the same to the accused at the time of
commitment of the case to the court of sessions, if the same is
available on record. In the event the same is not available and not
applied for by the accused before commitment of the case, it is the
duty of the prosecution as well as the trial court to see that the
Chemical Examination Report is made available before the charges
are framed and the copy of such report be furnished to the accused.
It is also the duty of the trial court to send a reminder to the Director
/ Deputy Director of the OSFSL, Bhubaneswar to send the CE
Report and, in spite of such reminder if no report is furnished, the
Court should take concrete step against the erring officers for non-
production of the said report, in the interest of justice.
5. According to the learned counsel for the Petitioners, non-
availability of CE Report before the trial court may have a far-
reaching consequence in the trial of the case and it may cause
serious judgmental error. He further submitted that the GR&CO
(Criminal) has to be followed in letter and spirit and, as such, the
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impugned order rejecting the prayer of the Petitioners to defer the
hearing on charge till receipt of the Chemical Examination Report is
illegal and needs to be quashed.
6. Mr. B.K. Ragada, learned AGA on the other hand submitted that
the provision under the GR&CO is a handmaid of justice and is
directory in nature. He further submitted that the hearing on framing
of charge shall not wait indefinitely for non-receipt of the CE
Report, which can be received subsequently but should not stand on
the way to further the trial which is substantial.
7. It is rightly submitted by the learned counsel for the Petitioners
that whenever the prosecution relies upon the seized incriminating
materials to be utilized against the accused on the basis of the CE
Report, the same is required to be furnished before the Court and the
copies thereof be made available to the accused to prepare his
defence.
8. It is invariably seen that the seized articles sent for Chemical
Examination are lying for its report for years together and non-
furnishing of the said report deters the court to proceed with hearing
on the charge, in absence thereof more often in sessions trial cases.
Needless to say that, such documents if relied upon by the
prosecution, has to be favoured to the accused to prepare his
defence. Absence of the CE Report at the time of hearing on
framing of charge ipso facto will not make the framing of charge
prejudicial to the interest of the accused, in as much as the charge, if
any framed in absence of the CE Report obviously have not been
relied upon by the prosecution and as such would no way cause
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prejudice to the accused. It is only when such report is utilized
against the accused, but the copy thereof is not supplied to him may
result prejudice to the accused. In the matter of HDFC Bank Ltd &
Ors Vs Union of India & Ors, the Apex Court held that the rules of
procedure are the handmaidens of justice and not the mistress of
justice. As far as the first contention is concerned, it is the settled
principle of law that the procedure provided in the G.R.&C.O. is
directory in nature and is not mandatory and if substantial justice has
been rendered in the case, the same cannot be disturbed, because it is
violative of the provisions of the G.R.&C.O. In any case, the trial of
a case cannot be deferred indefinitely merely on the ground of non-
furnishing of CE Report before the Court. Hence, it cannot be
accepted that the Court has to wait till the CE Report is received and
thereafter to proceed on the hearing on charge. However, in the
event such report is received by the court subsequently after framing
of the charge, the copy thereof has to be handed over to the accused
for preparing his defence, if such report is utilized by the court in the
case against the accused.
9. Consequently, this Court finds no illegality committed by the
learned court below in declining the prayer of the Petitioners to
defer the hearing on charge awaiting Chemical Examination Report.
10. The CRLMC being devoid of merit stands dismissed.
(Chittaranjan Dash)
Signature Not Verified Judge
Digitally Signed
Signed by: SAMIR KUMAR PARIDA
Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY
Reason: Authentic Copy
Location: ORISSA HIGH COURT, CUTTACK
Date:S.K.
15-Nov-2023 17:25:27
Parida
