The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.558 of 2023 Sweekar Nayak …. Petitioner(s) -versus- State of Orissa …. Opp. Party(s) Advocates appeared in the case: For Petitioner For Opp. Party : : Mr. Ananta Narayan Pattanayak, Adv. -versus- Mr. Gyanaranjan Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-19.12.2023 DATE OF JUDGMENT:-13.03.2024 Dr. S.K. Panigrahi, J. 1. The petitioner has filed this criminal revision challenging the order dated 01.09.2023 in rejecting the application for discharge vide Section 227 Cr.P.C and framing of charge under Section 302, 201, 34 IPC by the learned Addl. Sessions Judge, Rayagada in connection to C.T. No. 50 of 2017 (arising out of Rayagada P.S. Case No. 04 of 2009 & CID, CB, P.S. Case No. 02 of 2010) on the ground that there is no legal evidence to connect the petitioner in the alleged crime and on the basis of incomplete investigation, the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 1 learned trial court not only framed charge but has also been proceeding with the trial.
Facts
I. FACTS OF THE CASE: 2. The concise yet comprehensive factual record of the case, pertaining to the matter at hand, is presented succinctly as follows: (i) The prosecution case, in short, is that on 05.01.2009, at 12.10 A.M., one Rajib Dash (since “deceased”) of Bolangir and his two associates occupied Room No. 202 of Hotel Sunrise at Rayagada. On the next morning, the hotel boy, Ajay Khosla, knocked the door of the room for the purpose of cleaning the room, but they found that the door was neither locked nor attended by anybody in the room. He entered the room and found that the deceased was lying in the bathroom stained with blood and foot prints. The hotel boy intimated the
Legal Reasoning
material placed before it and determine whether a prima facie case is made out or not, and the Court is not required to consider the 1 (2010) 9 SCC 368 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 11 evidentiary value of the evidence as any question of admissibility or reliability of evidence is a matter of trial. The relevant portion of the judgment is reproduced below: “21. On consideration of the authorities about scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The 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 etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 12 Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 10. It was observed by the Supreme Court in Asim Shariff v. National Investigation Agency2, that at the stage of framing of charge, the Trial Court is not expected to hold a mini trial for the purpose of marshalling the evidence on record. The relevant observations are as under: “18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases(which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion 2 (2019) 7 SCC 148 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 13 only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record.” (Emphasis Supplied) 11. The Supreme Court in Bhawna Bai v. Ghanshyam3, has observed as under: "13. ...At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.” 12. Thus, the law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the Cr.P.C. or a revision application under Section 397 of the Cr.P.C. to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done 3 (2020) 2 SCC 217 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 14 only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. 13. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. or a revision Petition under Section 397 read with Section 401 of the Cr.P.C. seeking for the quashing of charge framed against him, 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 on 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. 14. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 15 proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure. 15. Section 397 Cr.P.C. vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. 16. In the present case, the statement of the witnesses recorded by the IO along with the connected documents show the involvement of the petitioners along with the co-accused in this case. As per the prosecution, the accused persons Sweekar Nayak and Subash Nayak made conspiracy to kill Rajib Dash and engaged hired killers (two unknown persons) to commit the murder of the deceased and in pursuance to their criminal conspiracy, the deceased died. Since prima facie material is forthcoming against Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 16 the accused persons including the petitioner, he was charge sheeted for the offences punishable under Sections 302/201/120(B) of IPC. 17. Thus, in view of the aforementioned judicial precedents on the law of charge and discharge, this Court notes that at the stage of framing charges, the Court’s primary concern lies in determining a prima facie case against the accused. It is essential to emphasise that at the time of framing of charge, the Court need not delve into the realm of whether the case is proven beyond reasonable doubt. That determination comes at a later stage, i.e. after the conclusion of trial. The pivotal criterion for the Court, while framing charges, is to assess if there exist sufficient grounds to proceed against accused further by framing charges against them and began the trial. A strict standard of proof is not required while evaluating the material on record, simply a prima facie view of the matter is to be considered to reach a conclusion as to whether strong suspicion exists on the basis of material on record for the purpose of framing of charge against them. V. CONCLUSION: 18. The High Courts should refrain from interfering with the criminal cases before the trial is completed. Allowing the trial process to unfold without undue interference ensures that justice is served impartially and without prejudice. Premature intervention by the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 17 High Court could disrupt the lower court’s proceedings, potentially impeding the thorough examination of evidence and testimony crucial for a just verdict. 19. With respect to the aforesaid discussion, this Court is not inclined to interfere with the order of the court below. This criminal
Arguments
incident to the manager Sri Misal Venkat Ravana who is the informant of the present case, he then entered the room and found that one person was lying dead and other two persons were not present. (ii) On the basis of the said information a case under Section(s) 302, 201, 34 IPC was registered against two unknown persons vide Rayagada P.S. Case No. 4 of 2009 corresponding to G.R. Case No.66 of 2010 of the court of learned S.D.J.M., Rayagada. After registration of the case, the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 2 I.O. made inquest over the dead body, sent the dead body for post mortem examination, recorded statement of the witnesses, prepared the seizure list. (iii) During the investigation, it was revealed that Subash Nayak and Sweekar Nayak (the present petitioner) from Udbhav Construction Pvt. Ltd. in Karnataka undertook a project from Bharati Airtel in 2007 to lay cable wires from Bolangir to Bargarh. However, due to local resistance, they faced challenges in completing the project. In order to overcome this hurdle, they sought assistance from Rajib Dash (deceased), who took an interest in the project and successfully completed the cabling work on time. (iv) However, a misunderstanding between the aforementioned accused persons and the deceased arose due to a disagreement over the sharing of profits with Rajib Dash. The deceased also obstructed the financial payments to Udbhav Construction Pvt. Ltd. by making allegations against the accused individuals to the Chief of Bharati Airtel in Odisha. Despite the petitioner’s promise to Rajib Dash and his father to pay their share, they failed to fulfill their commitment. As a result, the deceased resorted to forcibly detaining the company’s property in Bolangir due to the non-payment of dues. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 3 (v) In response, the petitioner and the co-accused resorted to threatening the deceased over the phone, expressing their intent to even kill him if the property was not released. As per the prosecution, the accused persons Sweekar Nayak and Subash Nayak made conspiracy to kill Rajib Dash and engaged hired killers (two unknown persons) to commit the murder of the deceased and in pursuance to their criminal conspiracy, Rajib was murdered in cold blood. (vi) While matter stood thus, the matter has been transferred to the file of Crime Branch for investigation. Accordingly, the case was registered and renumbered as CID Case No. 02 of 2010 and the crime branch investigated into the matter. The I.O. collected phone call details and found that accused Subash Nayak who is the uncle of the present petitioner as well as employee of the Company had contacted the petitioner on numerous occasions over mobile phone during the relevant period. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner has brought forward the following contentions: (i) It is submitted that neither the accused persons who have committed the alleged murder have yet been traced out nor does the co-accused Subash Nayak on whose instance the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 4 crime alleged to have been committed has been arrested. In such circumstance, framing of charge against the petitioner on presumption that he has committed the murder and charging under Sections 302,201,120-B of the I.P.C. is perverse, abuse of process of law and mockery of judicial system. There is no material to show that the petitioner was present at the relevant point in time and date in the said hotel where the deceased was alleged to have murdered. Hence, the first charge failed as the allegation is quite imaginary, perverse, based on surmises and conjectures. (ii) It is submitted that from bare perusal of the statements of the aforesaid witnesses, it is crystal clear that the petitioner is no way connected with the alleged crime and there are no materials to show that neither the petitioner had threatened to kill the deceased nor had he any bitter relationship with the deceased which compelled him to join hand with the accused persons to kill the deceased. But, after a year the Crime Branch Police rerecorded statement of the witnesses under section 161 Cr.P.C., wherein the interested witnesses developed their story and for unlawful gain entangled the present petitioner to the extent that in one occasion i.e. much prior to the occurrence, the petitioner threatened over telephone. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 5 (iii) It is an admitted fact that the petitioner is one of the partner of the Udbhab Construction and accused Subas Nayak was an employee and project in charge of the works executed in different part of the state of Odisha. Therefore, the petitioner might have contacted him on different occasions to know about the progress of the works, but the same cannot be a basis to presume that the petitioner had contacted the accused Subas Nayak to create a plot to murder the deceased. Further, the mobile number stands in the name of M/s. Udbhav Construction and there are five Managing Partners of the said Company. Therefore, it cannot be presumed that the present petitioner was using the said mobile at the relevant point of time. (iv) It is submitted that for the sake of argument, even assuming though not admitting, the petitioner was using the alleged mobile phone bearing Nos.9938187423 and 9448457161 stands in the name of Udbhab Construction, then also the call details record discloses that there was no contact from the aforesaid numbers from 28th of December 2008 till the date of occurrence i.e. till 6.1.2009 with the accused Subash Nayak. So, there is remote chance of involvement of the petitioner in the alleged crime. Hence the charge under Section 120-B IPC is not made out. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 6 (v) It is submitted that the I.O. had recorded statement of the petitioner in three occasions i.e. on 27th October, 2009 and on 30.8.2013 and after released on bail. The statements of the petitioner reveals that the father of the deceased demanded rupees Six lacs from the petitioner after the alleged occurrence. As the petitioner refused to full fill his illegal demand, the family members of the deceased developed their case before the Crime Branch in order to implicate the petitioner in the alleged crime. The statements before the Rayagada police as well as Crime Branch are self- contradictory and afterthought. Therefore, the statements recorded by the Crime Branch after more than one and half year old is not trustworthy and reliable. (vi) It is submitted that while recording statement of the witness Sudhir Kumar Singh under Section 161 of the Cr.P.C. who is very close friend of the deceased narrated the entire story about the involvement of the deceased in the business transactions with accused Subas Nayak. The said witness also has not uttered the name of the petitioner in his statement. Further, the statement of the inquest witness Mr. Raj Kishore Jena, who is a close person of the deceased, revealed that, at the interference of the petitioner, the bills which was held up had been released, but the so-called accused Mr. Subas Nayak failed to pay the same to the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 7 deceased, as he says. As such the name of the petitioner does not find place anywhere except that he had tried his best to resolve the issue. Taking advantage of the involvement of the petitioner in resolving the issue, the police suspected the petitioner, to have involved in the incident and submitted charge sheet. (vii) It is submitted that though the petitioner is no way connected with the present case, he has been implicated without any basis and only on mere surmises, suspicion and imaginations. The FIR as well as statements of the witnesses recorded soon after the occurrence do not recite the source of information particularly in respect of the petitioner’s implication in the offence. But the learned trial court in an arbitrary fashion even without going through the police papers frame charge as such the petitioner has committed the murder, tried to screen the offence and conspired with other accused persons. Hence, the charges in all three heads are defective and liable to be set aside. III. ORDER OF THE ADDITIONAL SESSIONS JUDGE, RAYAGADA: 4. The Sessiosn Judge held that on perusal of the FIR and the statement of the witnesses, it is found that on the alleged day, the deceased along with two persons had resided in the Room No.202 of Hotel Sunrise at Rayagada, though the room was booked in the name of the deceased. The statement of the witnesses recorded by Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 8 the IO along with the connected documents show the involvement of the petitioners along with the co-accused in this case. Further, the investigation of the IO reveals that Subash Nayak and Sweekar Nayak(present petitioner) of Udbhav Construction Pvt. Ltd., Karnataka had taken contract work from Bharati Airtel for laying of cable wire from Bolangir to Bargarh in the year, 2007, but due to local resistance, the same could not completed as such they took assistance of Rajiv Dash (deceased) who took interest and completed the cabling work in time. 5. Further, the misunderstanding between the above two accused persons and for the deceased arose due to not sharing of profit due to Rajib Dash. The deceased also held up the financial payment of Udbhav Construction Pvt. Ltd by alleging against the accused persons at Chief of Bharati Airtel, Odisha. Thereafter, though the petitioner had promised Rajib Dash and his father to pay his share, but they evaded the same. For the non-payment of dues, the deceased forcibly detained the property of the company at Bolangir, for which the petitioner and the co- accused used to threaten to kill him over phone. As per the prosecution, the accused persons Sweekar Nayak and Subash Nayak made conspiracy to kill Rajib Dash and engaged hired killers (two unknown persons) to commit the murder of the deceased and in pursuance to their criminal conspiracy, the deceased died. Since prima facie material is forthcoming against the accused persons Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 9 including the petitioner, he was charge sheeted for the offences punishable under section 302/201/120(B) of IPC. 6. As far as the plea of the defence counsel that the CID & CB has charge sheeted him along with the co-accused only on the basis of the CDRs and without having any concrete proof, but the same has to be established during the process of trial and need to be analysed during the appreciation of the evidence on merit of the case. The relevancy as well as the admissibility of the CDRs and their nexus with the crime has to be established. At this stage, no findings can be given as to the innocence of the petitioner. 7. The Sessions Judge observed that the aforesaid discussion prima facie reveals that the facts to implicate the petitioner with the offences punishable under section 302/201/120(B) of the IPC is very much available on record. Thus, there are sufficient materials available on the case record to proceed against the petitioner for the offences punishable under Sections 302/201/120(B) of the IPC as the prima facie case under the above mentioned Sections is made out against him. IV. COURT’S REASONING AND ANALYSIS: 8. Before averting to the submissions made by both the parties, this Court deem it appropriate to discuss the law of charge and discharge. As far as statutory law on framing of charge 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: 02-Apr-2024 19:13:15 pg. 10 discharge is concerned, the same is governed by Sections 228 and 227 of Cr.P.C. respectively. These provisions read as under: “227. Discharge. If, 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 this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of Charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of Sub-Section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 9. The Apex Court, in the case of Sajjan Kumar v. C.B.I.1, held that at the time of framing of charge, the Court has to look at all the
Decision
revision petition is, accordingly, disposed of. 20. Interim order dated 18.10.2023 passed in I.A. No.773 of 2023 arising out of CRLREV No.558 of 2023 stands vacated. ( Dr. S.K. Panigrahi ) Judge Orissa High Court, Cuttack, Dated the 13th March, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2024 19:13:15 pg. 18