The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.506 of 2023 Kalandi Roul & Ors. …. Petitioner(s) -versus- State of Odisha …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. S.N. Mishra, Adv.
Legal Reasoning
prima facie case of commission of alleged offence has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 Page 5 of 7 the quashing of charge framed against them, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and no rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused, the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases. 15. The Supreme Court in the case of State Anti Corruption Bureau, Hyderabad and another v. P. Suryaprakasam1 has held as under: "5. ...........we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above- quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.P.C., which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that......." Signature Not Verified 1 1999 SCC (Cri) 373 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 Page 6 of 7 16. In the present case, the prosecution allegation giving rise to present case as it reveals from the case record is that on 18.07.2021 at about 6 A.M., the FIR named accused persons were forcibly constructing road over the land of one Suresh Mishra. When said Mr. Mishra objected them, they assaulted him and when the complainant went for the rescue of said Mr. Mishra, he was also assaulted. For the aforementioned act of the accused, he lodged the present FIR. Upon receiving such information, Naikandihi Police registered the FIR as Naikandihi P.S. Case No.190 of 2021 for commission of offences under sections 294/341/323 / 324 / 307/ 506/34 of IPC. 17. The medical examination report of the injured persons shows that injuries are grievous in nature and others are simple. Moreover, other two persons including the informant also claim to be the injured. In the context of the above narration, this Court is of the believe that this case requires a thorough trial, hence, scuttling the trial at this stage will be a classic case of miscarriage of justice. 18. Therefore, this Court does not deem it fit to remove the charge under Section 307 of the I.P.C. considering the gravity of the case.
Arguments
Mr. G.R. Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-18.10.2023 DATE OF JUDGMENT: -10.11.2023 Dr. S.K. Panigrahi, J. 1. This Writ Petition arises out of the order dated 01.08.2023 passed by the learned Assistant Sessions Judge, Basudevpur in S.T. No.16/2022 corresponding to G.R. Case No.586/2021 arising out of Naikandihi P.S. Case No.190 dated 18.07.2021, rejecting the petition filed by the Petitioners under Section 227 of the Cr.P.C. to discharge them from the charges made against them. I. FACTUAL MATRIX OF THE CASE: 2. Being aggrieved by the order passed by the learned Assistant Session Judge, Basudevpur vide its order dated 01.08.2023 in ST No. 16/2022 corresponding to G.R. Case No.586/2021 arising out of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 Page 1 of 7 Naikandihi P.S. Case No.190 dated 18.07.2021, rejecting the petition filed by them under Section 227 of CrPC to discharge them from the charges made against them, the petitioners have filed the criminal revision petition against the said order. 3. The prosecution allegation giving rise to present case as it reveals from the case record is, in brief, is that on 18.07.2021 at about 6 A.M., the FIR named accused persons were forcibly constructing road over the land of one Suresh Mishra. When said Mr. Mishra objected them, they assaulted him and when the complainant went for the rescue of said Mishra, he was also assaulted. For the aforementioned act of the accused persons, he lodged the present FIR. Upon receiving such information, Naikandihi Police registered the FIR as Naikandihi P.S. Case No.190 of 2021 for commission of offences under Sections 294/341/323 / 324 / 307/ 506/34 of the IPC. 4. After registration of FIR, S.I, Basudevpur P.S. took up the investigation examined the informant and witnesses, recorded their statement under section 161 of the Cr.P.C., prepared the spot map and finally submitted charge-sheet under Section 173 of the Cr.P.C. against the present petitioners for commission of offences under section 341 / 294/323/324/307/506/34 IPC. 5. The petition was filed on behalf of the present petitioners under Section 227 of the Cr.P.C., praying therein to discharge them from the offences made against them on the ground that none of the ingredients of Section 307 of the IPC is made out against them and Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 Page 2 of 7 so does for other offences. They have been falsely implicated without any basis and only due to civil as well as political hostility between them. However, it appears that the learned Asst. Sessions Judge without application of judicial mind rejected the petition filed by the present petitioners in a mechanical manner. 6. The matter earlier pending before the court of learned Sessions Judge, Bhadrak as S.T. Case No.79 of 2022. Subsequently, it was transferred to the court of the learned Assistant Sessions Judge, Basudevpur and renumbered as S.T. Case No.16 of 2022. 7. The medical examination report of the injured persons shows that some of the injuries are grievous in nature and some other are simple. Moreover, other two persons including the informant who claims to be the injured, never been examined medically. The learned Asst. Session Judge, Basudevpur has failed to appreciate the fact that basic ingredients of offences alleged against the present petitioners specially the offence under Section 307 of the IPC are grossly lacking in the present case. 8. It is submitted that in order to attract the provisions of Section 307 of the IPC, following ingredient are very much essential: “i. That the death of a human being was attempted; ii. That such death was attempted to be caused by, or in consequence of the act of the accused; and iii. That the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as: (a) The accused knew to be likely to cause death, or Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 Page 3 of 7 (b) Was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.” 9. Since these basic ingredients of the offences are lacking, no FIR should have been registered on the above offences. Simply because Section 307 of the IPC finds place in the FIR and in the charge-sheet filed by the police by itself cannot be a ground to conclude that prime facie an offence of the aforesaid section has been made out. Judicial scrutiny of the documents in such like cases is permissible to evaluate whether the material relied upon by the prosecution reveals the existence of basic ingredients of offence or not. 10. For that limited purpose, the Court can shift and weigh the material placed before it before examining the question whether on the allegations made in the FIR, prime facie makes out any offence under Section 307 of the IPC or not. In the case in hand, the offence under Section 307 of the IPC is not made out from any stretch of imagination. As charge is liable to be set aside by this Court. 11. Time and again, reiterated by Supreme Court as well as this Court that the intention or knowledge of the accused must be such that it is necessary to constitute murder. Without this ingredients being established, there can be no offence of attempt to murder. It is very well settled that intention of the assailant can be determined from Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 the nature of injury caused, severity of the blow or its persistence, sufficiency of time and opportunity of causing more injuries, intervention by others, nature of weapon, etc. 12. In the present case, no injury is found which suggest that it is on the vital part of the body, which shows nothing but the complete non- application of mind by the learned Court below while rejecting the application under Section 27 of Cr.P.C. and as such the same is liable to be set aside by this Court. 13. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving inquiry into the matter and weigh the evidence as if he was conducting a trial. This provision was introduced in the code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. II. COURT’S REASONING AND ANALYSIS: 14. The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the material placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the Court is to examine the materials only with a view to be satisfied that a
Decision
19. Accordingly, this CRLREV is dismissed. No order as to costs. Orissa High Court, Cuttack, Dated the 10th Nov., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 16:52:46 (Dr. S.K. Panigrahi) Judge Page 7 of 7