The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 123 of 2024 An application under Section 401 of the Code of Criminal Procedure challenging the orders dated 23.02.2024 and 28.02.2024 passed by the learned Ad-hoc Addl. District and Sessions Judge, F.T.S.C.-II, Cuttack in Special G.R. Case No. 28 of 2020. -------------- Rinki @ Tapaswini Behera ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. D.P. Pattnaik, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 10.04.2024 Savitri Ratho, J This application under Section 401 of the Code of Criminal Procedure has been filed with the following prayer: “That the petitioner prays that your lordship be graciously pleased to consider the facts stated in the petition and pass appropriate order in calling for the records from the court below and after hearing the counsels, set aside order dated 23.2.2024 and 28.2.2024 passed by the learned ADJ-CUM-Special Court under CRLREV No. 123 of 2024 Page 1 of 19 POCSO ACT, Cuttack in SPL GR case No. 28 of 2020 vide Annexure -1 series. And pass appropriate order dropping the proceeding in respect of the petitioner in SPL GR case no. 28/2020 pending in the court of learned ADJ-CUM- Special Court under POCSO ACT, Cuttack. And may further be pleased to pass any other order(s) or direction(s) as deem fit and proper in the facts and circumstances of the case; And for this act of kindness, the petitioner as in duty bound shall ever pray.” But perusal of the two impugned orders reveal that both the orders have been passed by the learned Ad-hoc Addl. District and Sessions Judge, F.T.S.C.-II, Cuttack in Special G.R. Case No. 28 of 2020. Order dated 23.02.2024 has been passed rejecting the application of the petitioner to drop the proceeding against her and the order dated 28.02.2024 has been passed framing charge against the petitioner for commission of offences punishable under Sections 363, 366, 342, 328, 120-B of the IPC. 2. For purpose of deciding his Criminal Revision, I do not consider it necessary to bring on record the details of the prosecution allegations and only the portions relating to the petitioner have been CRLREV No. 123 of 2024 Page 2 of 19 referred to. The names of the victim as well as the CICL who is the main accused in the case are also not mentioned to protect their identity.
Legal Reasoning
3. The prosecution allegation in brief is that FIR has been registered on 02.11.2019 at the Tangi Police Station, on the information of the father of the victim, against one CICL and one Hari Behera under Section 363, 34 of IPC stating that his daughter (the victim) aged about 16 years who had gone to College on 01.11.2019 did not return. On enquiry, he learned that she had gone with the CICL. When he went to the house of the CICL, his uncle Hari Behera did not co-operate for which he suspected that they had taken his daughter and kept her concealed. 4. The victim was rescued from Jammu on in the month of January 2020 and returned to her village being accompanied by her father. Her statement under Section – 164 Cr.P.C. was recorded where she has given details of the manner in which she was taken to Jammu and the role played by the present petitioner. She has interalia stated that on the date of occurrence at about 11.30 a.m. after attending College while she was standing in the local bus stand to return home, the present petitioner who happens to be a distant cousin of the CICL (main accused), enquired as to where she was going, she replied that she was going to Tangi. The petitioner said that she was also going to Tangi to CRLREV No. 123 of 2024 Page 3 of 19 her friend’s place and gave her prasad (Ladu) to eat and then called an auto rickshaw and said that both could go together. She went with the petitioner. On the way she felt dizzy. The petitioner attributed her condition to not taking food and asked her to go to sleep. She went to sleep and when she woke up, she found herself in a room with her hands and legs tied with ropes and three other girls were also lying there with their hands and legs tied with ropes. She saw the CICL and the present petitioner alongwith three boys. When she tried talking with one of the girls, the petitioner gagged their mouths. The CICL came and cut the ropes on her hands with a knife. All of them were talking about getting money from her father. The CICL then took her to a room and raped her. She kicked him and the CICL assaulted her with a knife by inflicting bleeding injury on her hand and threatened to kill her if she struggled. Thereafter she has recounted as to how she was taken to Jammu by the CICL with the help of others and how she was ultimately rescued. 5.
Legal Reasoning
I have heard Mr. D.P. Patnaik, learned counsel for the petitioner and Mr. M.R. Mishra, learned Additional Standing Counsel for the State, perused the statement of the victim recorded under Section 164 Cr.P.C. filed by the learned counsel for the petitioner and also available in the case diary. I had called for the scanned copy of the ordersheet from the learned trial Court as some of the orders passed by CRLREV No. 123 of 2024 Page 4 of 19 the learned trial Court had not been annexed with the Criminal Revision. The scanned copy of the ordersheet received from the Court of learned Ad-hoc Addl. District and Sessions Judge, FTSC-II, Cuttack and tagged to the digital record. I have gone through the ordersheet as well as the orders and documents filed by the learned counsel for the petitioner. 6. As stated earlier, FIR was registered on 02.11.2019 at the Tangi Police Station, on the information of the father of the victim, against the CICL and one Hari Behera under Section 363, 34 of IPC. They were arrested on 06.06.2020 and forwarded to the Court on 07.06.2020. Co accused Hari Behera was granted bail on 08.06.2020. Preliminary charge sheet dated 04.08.2020 was been submitted against the CICL for commission of offences punishable under Sections 363, 366, 370, 342, 376, 341, 506, 323, 324, 328, 120-B of IPC and against the co-accused Jayanta Behera @ Haria under Section 6 of POCSO Act and Sections 341, 406, 120-B of IPC. On 05.08.2020, the learned Addl. District Judge cum Special Court under POCSO Act, Cuttack (in short “POCSO Court”) took cognizance of the offences under Section 363/366/370/342/376/341/506/323/ 324/328/ 120B of IPC read with Section 6 of POCSO Act and as the CICL was in custody, summons was issued to Haria @ Jayanta Behera. On 12.08.2021, the latter was allowed to continue on previous bail. CRLREV No. 123 of 2024 Page 5 of 19 ORDERS PASSED BY THE TRIAL COURT 7. On 08.09.2021 charge was framed against the CICL under Sections 363/366/370/342/376/341/S06/323/324/328/120B of IPC 6 of POCSO and charge under Sections 341/506 of IPC was framed against co-accused Haria @ Jayanta Behera by the POCSO Court. On
Decision
02.11.2021 the POCSO Court disposed of the application filed on behalf of the CICL holding that age of the CICL as per his HSC certificate was to be taken as 17 years 8 months on 01.11.2019 i.e. the date of occurrence but as he was mature he could be tried as an adult by the same Court which had been declared as Children’s’ Court as per the provisions of Cr.P.C. as envisaged under Section l9(l) of JJ CPC. On 26.05.2022, while considering another application of the accused to refer the CICL to the JJ Board for proper adjudication, the POCSO Court found under Section 18 (3) of the JJ CPC Act, preliminary enquiry as envisaged under Section 15 of the Act is required to be done by the JJ Board to assess whether the accused /CICL will be tried as a CICL or as an adult by the Children’s Court as per the provision under Section 19 of the Cr.P.C and pass necessary order. The Court also observed that similar application had been rejected on 2.11.2021 but as the order was not in conformity with Section 15 of the JJ Act, the order was liable to be recalled as it is the mistake of the Court. On 19.06.2022, the CRLREV No. 123 of 2024 Page 6 of 19 application of the Spl. P.P. to add the victim as CSW No. 29 was allowed. The case record in respect of the CCL was sent to the PM JJB, Cuttack to proceed according to law. On 02.03.2023, the prayer for issuance of NBW against the present petitioner was made by the I.O. on the allegation that the petitioner has committed offences under Sections 363, 366, 342, 328, 120-B of IPC and was absconding for avoiding arrest in spite of several raids conducted to apprehend her. The prayer of the I.O. was allowed and NBW was issued against the petitioner. On 10.3.2023, supplementary charge sheet was submitted against the petitioner for commission of offences punishable under Sections 363, 366, 342, 328, 120-B of IPC and the case was posted to 15.03.2023 for further order as the P.O. was absent. On 15.03.2023, the learned Addl. District Judge -cum- Special Court under POCSO Act, Cuttack found that charge sheet dated 10.03.2023 has been submitted against the three accused persons and previously on 05.08.2020 cognizance of offences under Sections 363, 366, 370, 342, 376, 341, 506, 323, 324, 328, 120-B of IPC and Section 6 of POCSO Act has been taken and no new Sections have been added by the I.O. in the present charge sheet so there was no need to take further cognizance and the charge sheet was kept in the case record. And the case posted to 17.04.2023 for hearing. On 01.08.2023 the case was transferred to the newly created court of the Fast Track CRLREV No. 123 of 2024 Page 7 of 19 Special Court (FTSC-II), under POCSO Act, Cuttack, for disposal and it was received in that Court. On 16.01.2024, the petitioner was produced in Court pursuant to execution of NBW and a petition was filed to drop the proceedings against her. The petition was heard and rejected on 18.01.2024 and the case was posted to 28.02.2024 for consideration of charge and charge has been framed against the petitioner for commission of offences punishable under Section 363, 366, 342, 328 and 120-B of the IPC. As stated earlier, the orders dated 18.01.2024 and 28.02.2024 have been challenged in this revision. On e revision application may not be maintainable against multiple (two) order, but as order dated 28.02.2024 is a consequence of the first order passed on 18.01.2024 and no defect was pointed out by the Stamp Reporter, the matter was heard. SUBMISSIONS 8. Mr. D.P. Pattnaik, learned counsel for the petitioner has submitted that the learned Fast Track Court should have allowed the application of the petitioner for dropping the proceeding should not have framed charge against the petitioner inasmuch as after submission of preliminary charge sheet the Court had proceeded in the matter and already framed charge against the co-accused persons. Thereafter, only at the stage of Section 319 of Cr.P.C., the Court could have proceeded CRLREV No. 123 of 2024 Page 8 of 19 against the petitioner if material had surfaced against her after recording of evidence of witnesses. In the present case as no witness had been examined in the trial, the learned Fast Track Court could not have proceeded against the petitioner and framed charge against her merely because a supplementary charge sheet was filed against her when cognizance of offences against the co accused persons had only been taken on the basis of the preliminary chargesheet. He relied on paragraph -9 the decision of the Apex Court in the case of Y. Saraba Reddy vs. Puthur Rami Reddy reported in 2007 Vol-II OLR 394 : 2007 (4) SCC 773, in support of his submission. He reiterated that the learned Court below adopted a procedure which is foreign to the Code of Criminal Procedure by proceeding against the petitioner after charge has been framed against the co- accused persons and before the stage of Section 319 of Cr.P.C. had arrived, for which the impugned orders refusing to drop the proceedings and framing charge against the petitioner are liable for interference. 9. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State supports the impugned order stating that there was sufficient materials against the petitioner in the preliminary charge sheet, but since she was absconding could not be arrested during investigation and the specified period under Section 167 of Cr.P.C. was going to be CRLREV No. 123 of 2024 Page 9 of 19 completed, the I.O. has submitted preliminary charge sheet against the co-accused persons keeping the investigation open for arrest of the petitioner. Thereafter, although the learned POCSO Court had framed charged against the co-accused persons. As evidence had not been recorded, the learned Court below has not committed any error by proceeding against the petitioner and framing charge against her since cognizance of the offences have already been taken and the stage of Section 319 had not reached as no witness has been examined during the trial. He finally submits that in view of the nature of allegations against the petitioner, as a prima facie case is made out against her for framing charge against her, the proceeding against her should not be dropped. 10. The provisions of Section 223 and Section 319 of the Code of Criminal Procedure (in short “Cr.P.C.) are relevant for deciding this Criminal Revision and are therefore extracted below : “ Section 223. What persons may be charged jointly.- The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course same transaction; (b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence; CRLREV No. 123 of 2024 Page 10 of 19 (c) person accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence ,committed by the first named persons, or of abetment of or attempting to commit any such last-named offence; (f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860 ) or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Session may, if such persons by an application in writing, so desire, and if he or it is satisfied that such 12 persons would CRLREV No. 123 of 2024 Page 11 of 19 not be prejudicially affected thereby, and it is expedient so to do, try all such persons together." “Section – 319 . Power to proceed against other persons appearing to be guilty of offence. - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard; 10 (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 11. From a careful reading of the provision of Section 223 of IPC, it is forthcoming that if a particular offence concerns two or more people which arise out of the same transaction, they can be tried together in CRLREV No. 123 of 2024 Page 12 of 19 terms of Section 223 of the Crl.P.C. In the present case the CICL, the co accused and the petitioner have allegedly committed offences which arise out of the same transaction, hence the learned trail Court has not committed any error in refusing to drop the proceedings against the petitioner and framing charge against her. 12. The expression “same transaction” in Section 239 of the 1898 Code which is parimateria with Section 223(d) of the 1973 Code was considered by the Supreme Court in State of A.P. vs. Cheemalapati Ganeswara Rao : AIR 1963 SC 1850 , where the test was stated to be as follows : “What is meant by “same transaction” is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts CRLREV No. 123 of 2024 Page 13 of 19 committed by a person show a unity of purpose or design that would be a, strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words “so connected together as to form” in clauses (a), (c) and (d) of Section 239 would make little difference. Now a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions.” In Balbir vs. State of Haryana : (2000) 1 SCC 285, the Supreme Court has explained that 'in the course of the same transaction' was not the same as 'in respect of the same subject-matter', and the test which is to be applied is that for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences 'committed in the course of the same transaction'. CRLREV No. 123 of 2024 Page 14 of 19 13. There can be no quarrel over the position of law that power under Section 319 of the Code can be exercised by the Court suo motu or on an application by the prosecution or even by an accused already before the Court, if the evidence adduced by the witnesses in the trial reveal that any person other than the accused already facing the trial has/ have committed the offence. The trial Court has the power to direct that such a person can be tried alongwith the accused already facing trial. The power is discretionary and such discretion must be exercised judiciously having regard to the facts and circumstances of the case and the nature of evidence adduced in the trial. The Supreme Court in the case of Y. Saraba (supra) in 2007 Vol-II OLR SC 394 : has observed as follows: “The scope and ambit of Sec. 319 of the Code have been elucidated in several decisions of this Court. In Joginder Singh and another v. State of Punjab and another (AIR 1979 SC 339), it was observed: “6. A plain reading of Sec. 319 (1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an CRLREV No. 123 of 2024 Page 15 of 19 accused and direct him to be tried along with the other accused” “Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub- section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.” 14. In a catena of decisions of the Supreme Court and various High Court including this Court on the interpretation of the term “taking CRLREV No. 123 of 2024 Page 16 of 19 cognizance”, it is now the settled position of law that cognizance is taken of the offence and not of the accused. In the present case, the learned trial Court committed no error when it stated that cognizance of offences had already been taken and no new offence has been added so the petitioner could be proceeded against. Although specific reference to the provisions of Section 233 of the Cr.P.C. has not been made by the trial Court, but they lend credence to the impugned order to proceed against the petitioner alongwith the co accused. The provision of Section 233 Cr.P.C. as well as the decisions of the Supreme Court clearly elucidate that where a transaction consists of a series of acts and the acts, the acts must be connected to each other in order to be part of the same transaction. In the present case the acts committed by the petitioner and the co accused form part of the same transaction and hence they can be tried together in the same trial. So merely because charge had been framed against a co accused earlier will not a bar for the learned trial Court to frame charge against the petitioner and proceed against her in the same trial. 15. Another feature of the case is that sufficient materials were available against the petitioner to proceed against her when cognizance of offences were taken, but as she had absconded and evaded arrest, preliminary chargesheet had been filed against the co accused who were CRLREV No. 123 of 2024 Page 17 of 19 in custody and investigation had been kept open against her. So to drop the proceedings against such an accused would be giving premium to her/his efforts to avoid arrest during initial investigation in the case. 16. The submission of the learned counsel for the petitioner that the petitioner could have been proceeded against only after recording of evidence by exercise of power under Section – 319 Crl.P.C. if the evidence so recorded pointed to the complicity of the petitioner, and since that stage had not come, the proceeding should be dropped, is misconceived and hence rejected. 17. On 05.08.2020, cognisance of the offences under Section 363/366/370/342/376/341/506/323/324/328/120B of IPC read with Section 6 of POCSO Act had been taken by the learned trial Court on the basis of the preliminary chargesheet in which incriminatory materials were available against the petitioner and thereafter final chargesheet was filed. On a conjoint reading of Section 223 and 319 of the Crl.P.C. and the judgments rendered by the Supreme Court and the facts of the case, I am of the view that as the offences allegedly committed by the co accused and the petitioner arose out of same transaction, they can be tried in same trial and it was not necessary to wait till evidence is recorded to proceed against the petitioner by exercising power under Section – 319 Cr.P.C. As ample materials are CRLREV No. 123 of 2024 Page 18 of 19 available against the petitioner, the learned trial court has rightly refused to drop the proceedings against her and framed charge against her. 18. In view of the above discussion, I do not find any illegality or perversity in the impugned orders so as to warrant any interference. The Criminal Revision is accordingly dismissed. 19. Urgent certified copy of the order be granted on proper application. (Savitri Ratho, J) ……………………… Orissa High Court, Cuttack. The 10th April, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-May-2024 21:25:00 CRLREV No. 123 of 2024 Page 19 of 19