Orissa High Court
Kanheyalal Agarwalla & vs State Of Odisha & Another .... Opp. ... on 19 November, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3758 of 2024
Kanheyalal Agarwalla & .... Petitioners
another
Mr. G.M. Rath, Advocate
-versus-
State of Odisha & another .... Opp. Parties
Mr. T. Kumar, ASC
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 19.11.2024
1.
1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical Mode).
2. Heard learned counsel for the petitioners and
learned counsel for the State.
3. In this petition, the petitioners have assailed the
order dated 11.09.2023 passed by the learned
J.M.F.C.-II, Barbil in ICC Case No.69 of 2019 whereby
charges have been framed against them for the
offences punishable under Sections 457/ 294/ 354/
323/506/34 of the IPC. Its apparent on record that on
11.09.2023 police papers were supplied to the accused
-petitioner and on the same day charges have been
framed. Therefore, the petitioners are aggrieved and
have filed the present petition.
4. Learned counsel for the petitioners has
submitted that on 11.09.2023, the police papers were
supplied to the petitioners and on the same day, the
learned trial Court has proceeded to frame charges
against them mechanically. The petitioners being the
accused has not been afforded sufficient opportunities
to peruse the police papers so as to advance the
argument on the question of framing of charges. The
petitioner has relied upon Section 239 of Cr.P.C.,
which mandates the Court to give sufficient
opportunity of haring to the accused before framing
the charges. Learned counsel for the petitioners has
also relies upon the decision of the Hon'ble Supreme
Court in the case of Anokhilal Vrs. Sate of Madhya
Pradesh reported in (2019) 20 SCC 196. In the said
judgment, the Hon'ble Supreme Court in similar
circumstances has quashed the order on charge
because the learned trial Court proceeded to frame
charge on the same while appointing an Amicus
Curiae. The Hon'ble Supreme Court has arrived at the
following conclusions:
"21. In the present case, the Amicus Curiae, was
appointed on 19.02.2013, and on the same date, the
counsel was called upon to defend the accused at the
stage of framing of charges. One can say with certainty
that the Amicus Curiae did not have sufficient time to
go through even the basic documents, nor the
advantage of any discussion or interaction with the
accused, and time to reflect over the matter. Thus, even
before the Amicus Curiae could come to grips of the
matter, the charges were framed.
22. The concerned provisions viz. Sections 227 and
228 of the Code contemplate framing of charge upon
consideration of the record of the case and the
documents submitted therewith, and after 'hearing the
submissions of the accused and the prosecution in that
behalf'. If the hearing for the purposes of these
provisions is to be meaningful, and not Criminal Appeal
Nos.62-63 of 2014 Anokhilal v. State of Madhya
Pradesh just a routine affair, the right under the said
provisions stood denied to the appellant.
23. In our considered view, the Trial Court on its
own, ought to have adjourned the matter for some time
so that the Amicus Curiae could have had the
advantage of sufficient time to prepare the matter. The
approach adopted by the Trial Court, in our view, may
have expedited the conduct of trial, but did not further
the cause of justice. Not only were the charges framed
the same day as stated above, but the trial itself was
concluded within a fortnight thereafter. In the process,
the assistance that the appellant was entitled to in the
form of legal aid, could not be real and meaningful".
5. Learned counsel for the State submits that the
facts in the case of Anokhilal (supra) are
distinguishable from the case in hand. In the present
case, from the perusal of the impugned order, it is
abundantly clear that the petitioner has not sought for
any adjournment, rather preferred to proceed to argue
the matter on merit. Therefore, the learned trial Court
has not committed any error by framing the charges
on the same day the police paper was supplied to the
petitioner-accused while affording sufficient
opportunity of hearing to the petitioner .
6. I am in agreement with the proposition
propounded by the learned counsel for the petitioners
and disagree with the submission made by the learned
counsel for the State, particularly in view of
Paragraph-23 of the judgment in the case of Anokhilal
(supra). The Hon'ble Supreme Court has categorically
held that the trial Court of its own ought to have
adjourn the matter so as to afford sufficient
opportunity to the accused to argue the matter on the
question of framing of charges. Therefore, even if the
petitioner had not sought for adjournment, it was
obligatory under law on the Trial Court to allow the
accused to have proper time for preparation to put
forth case after supplying the copy of charge sheet to
the accused.
7. In view of the judgment Hon'ble Supreme Court
in Anokhilal (supra) and provisions of law cited at the
Bar, I am inclined to allow the petition, accordingly set
amit
aside the impugned order dated 11.09.2023 passed by
the learned J.M.F.C., Barbil. The learned trial Court is
directed to afford opportunity of hearing to the learned
counsel for the accused and the prosecutor afresh and
proceed with the matter in accordance with law.
8. With this observation, the CRLMC is disposed of.
(S.S. Mishra)
Judge
Location: High Court Of Orissa, Cuttack
