The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 827 of 2023 (An application under section 482 of Cr.P.C.) --------------- AFR Rangalata Behera and Others ...… Petitioners -Versus- State of Odisha and another ...…. Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/S. S.G.Das, R.Behera, Advocates.
Legal Reasoning
For Opp. Parties : Mr. S.K.Mishra Additional Standing Counsel _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 6th April, 2023 SASHIKANTA MISHRA, J. The petitioner are facing trial along with some others in S.T. Case No. 303 of 2022 pending in the Court of learned Ad hoc Additional Sessions Judge, Soro. In the present application vide under Section 482 of Cr.P.C., they seek to challenge the order dated 18.01.2023 passed by the Court Page 1 of 7 below in framing charge against them for the offence under Section 509/34 IPC read with Section 67/67-A of the I.T. Act. 2. Brief facts, relevant only for deciding the present application are that an FIR was lodged on 24.01.2021 by one ‘X’ before the IIC Soro P.S. alleging that she was sexually assaulted by her son in law, ‘Y’ on several occasions. She further alleged that some objectionable videos showing her with son-in-law had been circulated by the accused ‘Y’ on social media platform and that the said Video and Audio clips were sent to the present petitioners and other villagers, who circulated it further. Basing on such report, Soro P.S. Case No. 458 of 2021 was registered under Sections 376 (2) (f)/376(2)(n)/(507) of IPC read with Section 6 Section 67/67-A of the I.T. Act, 2000 followed by investigation. Subsequently, charge-sheet was submitted under the aforementioned Sections against the principal accused ‘Y’ and Sections 509/34 of IPC read with Section 67/67 A of the I.T. Act against the present petitioners. Learned JMFC, Soro, took cognizance of the offences. By Page 2 of 7 order dated 18.01.2023, charge was framed against the petitioners for the aforementioned offences. 3. Heard Mr. S.G. Das, learned counsel for the petitioner and Mr. S.K. Mishra, learned Additional Standing Counsel for the State. 4. Mr. Das has argued that there is absolutely no material to show commission of the alleged offences by the present petitioners for which framing of charge against them for the offences in question is bad in law. Mr. Das further argued that the case has been foisted against the petitioners merely on suspicion and without any cogent evidence. 5. Mr. S.K. Mishra, on the other hand contends that at the stage of framing charge the court is required to sift the materials on record only to find out if there is prima facie evidence of commission of the alleged offences by the accused persons. It is not excepted of the court to make a deep scrutiny of the materials on record as the same can only be done in course of trial. 6. Before proceeding to examine the merits of the rival contentions, this Court would like to keep in perspective the law relating to framing of charge. In the case of Union of Page 3 of 7 India vrs. Prafulla Kumar Samal and Anr. reported in (1979) 3 (SCC) 4 it was held as follows by the Apex Court: “(1) That the judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial”. 7. Keeping in above principles in view and on examination of the materials on record, this Court finds that from FIR the main allegation is against the principal accused namely, ‘Y’. In so far as the present petitioners are concerned, it is alleged that the principal accused sent the objectionable Audio and Video Clips to one Surendra Jena Page 4 of 7 and one Rangalata Behera and other villagers and that they have further circulated it. The same thing has been indicated in the charge-sheet. There is no mention as to whom the clips were circulated. In the charge-sheet, the names of two other persons namely, Prabhakar @ Panua Behera and Ajaya kumar Sankhua were included. It is however not mentioned as to whom was the objectionable Audio and Video Clips sent by the aforementioned persons (petitioners). The case record further reveals that no mobile phone was seized from the possession of the present petitioner. According to the Section 161 statement of the informant, who is the daughter of the victim and wife of ‘Y’, the accused ‘Y’ allegedly sent the video to one Bhima (husband of petitioner No.1) who showed it to the other three petitioners and that Rangalata’s mobile was damaged. Thus there is nothing to show that the objectionable videos are available in the mobile phones belonging to the petitioners and that they were forwarded/circulated to any other person. 8. From a bare reading of the provision under Section 509 of IPC it is clear that to bring home the charge it must be Page 5 of 7 established that the accused uttered some words or made sounds or gestures or exhibited any object or intruded upon the privacy of a woman with the intention that the same should be heard or seen by the woman. In the absence of any evidence worth the name to show that the petitioners were in possession of any objectionable Audio and Video Clips and that they had exhibited the same to any other person, the basic ingredient necessary to constitute the offence under Section 509 is conspicuously lacking. Such being the case, the offence under Section 67/67-A of the I.T. Act would also not be made out. 9. All that the materials on record seem to suggest is, merely a suspicion that the present petitioners may have circulated the objectionable materials, which in view of the ratio laid down in Prafulla Samal (Supra), is not sufficient to frame charge against them. 10. This Court finds considerable force in the contentions advanced on behalf of the petitioners so as to persuaded to accept the same and to hold that the impugned order warrants interference. Page 6 of 7 11. In the result, the CRLMC is allowed. The impugned order is hereby quashed. Consequently, the proceedings in S.T. case No. 303 of 2022 of the Court of learned Ad hoc Additional Sessions Judge (FTSC) Balesore in so far as it relates only to accused Rangalata Behera, Surendra Jena alias Kalu, Prabhakar @ Panu Behera and Ajaya Kumar Sankhua are hereby quashed. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 6th March, 2023/ Deepak Parida, Page 7 of 7