Orissa High Court
Chandan Parija vs State Of Orissa .... Opp. Party on 16 November, 2021
Author: Savitri Ratho
Bench: Savitri Ratho
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
CRL REV No. 21 of 2009
From an order dated 12.12.2008 passed by the learned Addl.
Sessions Judge (FTC), Jagatsinghpur passed in S.T. Case No. 23 of
08/ 273 of 07.
Chandan Parija .... Petitioner
-versus-
State of Orissa .... Opp. Party
Advocates appeared in this case through Hybrid Mode :
For Petitioner : Mr. Rajesh Kumar Mohapatra,
Advocate
For Opp. Party : Mr. Sibani Shankar Pradhan,
Addl. Govt. Advocate
CORAM:
JUSTICE SAVITRI RATHO
..................................................................................
Date of hearing : 01.11.2021 & 08.11.2021 Date of Judgment : 16.11.2021 ................................................................................... Savitri Ratho, J The petitioner-Chandan Parija has filed this Criminal Revision petition challenging the order dated 12.12.2008 passed by the learned Addl. Sessions Judge (FTC), Jagatsinghpur in S.T. Case No. 23 of 2008 / 273 of 2007 dismissing the petition filed by the petitioner along with the co- accused persons under section 227 of Cr.P.C. to discharge them from the offences CRL REV No 21 of 2009 Page 1 of 31 punishable under Section 395 of the I.P.C. and under Section 25/27 of the Arms Act.
In response to a query by this Court, the learned counsel for the petitioner on instructions obtained from the counsel in the lower court has submitted that the impugned order has not been challenged by the co accused persons in any separate application in this Court .
2. The prosecution case in brief is that on 27.05.2003 in between 7.30 P.M. to 8.00 P.M. while the informant Kishore Kumar Parida was coming out from the shop of one Prabodh Kumar Ray, Bapu Parida , Baba Swain and Pradip Pati came on a hero Honda Splendour motor cycle and obstructed him . Baba assaulted him with katuri and Bapu shot at him with a gun , but shot missed him .When he was shouting for help the other four accused persons arrived on two other motorcycles armed with bhujali . When he fell down , they assaulted him on his head and snatched Rs 60,000/- and a gold chain of two bharis .He managed to escape and entered the shop of Kapil Sahu and closed the grill gate .The accused persons left the spot with the cash and gold chain threatening to mete the same treatment to anybody who reported the matter at the police station . FIR was CRL REV No 21 of 2009 Page 2 of 31 registered for commission of offences under Section - 395 and 397 IPC and Section - 25 and 27 of the Arms Act against Bapu Parida , Baba Swain and Pradip Pati and four others. Chargesheet dated 07.05.2004 has been submitted against seven persons namely - 1. Bapu @Jyotikanta Parida , 2. Pradip Pati , 3. Baba@Asutosh Swain , 4. Prasanna Praija , 5.Kalia Samantray ,
6. Jimuta Kumar Biswal and 7. Chandan Parija ( the present petitioner ) for commission of offences punishable under Section
- 395 and 397 IPC and Section - 25 and 27 of the Arms Act . The accused persons had filed an application under Section - 227 of the Crl.P.C to discharge them from the offences under Section - 395 I.P.C and under Section - 25 / 27 of the Arms Act as no weapon had been seized and no sanction had been obtained from the Collector Jagatsinghpur for prosecuting them under Section - 25 / 27 of the Arms Act .
3. Mr. Rajesh Kumar Mohapatra, learned counsel for the petitioner submits that the order dated 12.12.2008 passed by the learned Court below is erroneous both the facts and in law on the following grounds:
i). The petitioner has not been named by the informant although the latter claimed to know him for which a genuine doubt arises as regards his complicity and in similar circumstances , the CRL REV No 21 of 2009 Page 3 of 31 appeal filed by the accused has been allowed in the case of Shyam Mallik vs. State of Orissa reported in (2020 ) 79 OCR 692
ii). The other witnesses have not specifically named the petitioner, but they state that the informant has named him .
iii). No T.I. parade has been held in respect of the petitioner .
iv). There has been no seizure of any incriminating articles from the petitioner
v). Charge under section -395 and 397 of the IPC cannot be framed simultaneously as has been held in the case of Muna @Arjuna Kar vs State reported in 2019 (Supp-II) OLR) 307 and Kailash Mahanta vs State reported in 1985 (II) OLR 171
vi). From the number of injuries sustained by the injured , it cannot be said that all the accused persons have assaulted him .
vii). Sufficient materials are not available in the chargesheet to proceed against the petitioner and he should have been discharged .
viii). Only one katuri has been recovered from the possession of co accused Prasanna Kumar Parija pursuant to his disclosure statement and one pistol from co accused Pradip Pati and hence the prosecution case should be disbelieved .
ix) Petitioner has been dragged into the case on the basis of the statements of co accused Bapu @Jyotikanta Parida , Pradip Kumar Pati and Prasanna Kumar Parija and there is no other CRL REV No 21 of 2009 Page 4 of 31 believable materials on record to make out a prima facie case against the petitioner .
x). The statement of Rashmi Ranjan Parida cannot be relied upon as he has been examined six days after the occurrence and statement of Tarun Kumar Pattanaik cannot be relied upon as he heard the name of four accused from one Bauribandhu Das who has not been examined .
xi) The learned Court below has not examined or evaluated the material to find out a prima facie case against the petitioner and this in violation of the judgment of the Hon'ble Apex Court in the case of Sajjan Kumar vs C.B.I reported in (2010) 9 SCC 368 : (2010) 47 OCR (SC) 650 .
xii).The prosecution case is based on surmises and conjectures .
4. The learned counsel for the petitioner has filed the attested copies of the chargesheet and the statements of witnesses recorded under section - 161 CrlP.C and copy of the application under Section - 227 of the Crl.P.C filed in the learned Court below .
5. Perusal of the application under Section - 227 of the Crl.P.C reveals that prayer to discharge the accused persons from the charge under Section 395 IPC and Section 25 and 27 of the Arms Act had been made on the following grounds : CRL REV No 21 of 2009 Page 5 of 31
a) "That there is no prima facie case under Section - 25 and 27 of the Arms Act and no sanction has been obtained from Collector Jagatsinghpur for prosecuting the accused persons under Section - 25 and 27 of the Arms Act" .
b) "That no offence of weapons has been seized or envolved as per the Arms Act" and
c) "That , if section 395 will be applicable the section -397 is not applicable . So is there is charge u/S.397 there will be no charge u/d.395 IPC.So the accused persons may be discharged u/S- 395 IPC and Sec 25 and 27 of Arms Act".
6. Mr. Sibani Shankar Pradhan, learned Additional Govt. Advocate on the other hand learned counsel states that offences under section 392 read with Section 397 of the I.P.C. are well made out against the petitioner as there is allegation that the petitioner was brandishing a deadly weapon like bhujali when the dacoity was committed . He further submits that there is no illegality in the impugned order so far as it relates to Section 25 / 27 of the Arms as it is the case of the prosecution that the petitioner has come armed to the spot and sanction has been accorded by the ADM . He further submits that the learned trial court has considered the contentions of the accused persons and after referring to the materials available against him has passed a well reasoned order which does not call for any interference . He CRL REV No 21 of 2009 Page 6 of 31 further submits that most of the contentions raised by the petitioner cannot be considered at this stage as at the stage of framing charge and , grave suspicion is enough and the veracity or intrinsic value of the statements or materials collected by the prosecution are not to be examined by holding a mini trial .
7. Perusal of the impugned order dated 12.12.2008 reveals that the Addl.Session judge (FTC) , Jagatsinghpur has referred to the contentions of the accused persons and the allegations against them . He has further referred to the definitions of robbery and dacoity and provisions of Section - 390 , 391 , 392 , 395 and 397 of the I.P.C and held that Section - 395 and 397 are two distinct offences as there is no provision for punishment for causing grievous hurt at the time of robbery or dacoity in Section - 390 and 391 IPC and hence it cannot be held that the accused persons cannot be charged under both the sections . Referring to the definition of District Magistrate in Rule - 2 ( f) (ii) of the Arms Rule , which includes an ADM or any officer specially empowered by the Government or the State, he recorded the submission of the Addl P.P. that the ADMs of the State have been specially empowered by the State to accord sanction for prosecution and to perform other duties which will be proved at the time of trial . He has referred to the injury report and further CRL REV No 21 of 2009 Page 7 of 31 observed that a country made pistol and empty cartridge have been recovered on the disclosure statement of the accused Baba @ Asutosh Swain and the Chemical examination report that the fire arm has been used for firing .
8. It is no longer res integra that the Court while considering the question of framing charge under Section 227 Crl.PC is not a to act as a mere post office or mouthpiece of the prosecution but has to apply its judicial mind to the materials on record and has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court and any basic infirmities appearing in the case. It the 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 and 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 . If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Court will be justified in discharging him. But at the same time , at that stage , the Court is not supposed to make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial . CRL REV No 21 of 2009 Page 8 of 31
In the case of TarunJit Tejpal vs State of Goa : 2019 SCC OnLine SC 1053 the Hon'ble Supreme Court has very succinctly considered the law on the scope at the stage of Section 227 / 228 CrPC and referred to and discussed a number of decisions on this point including its earlier decisions in Union of India vs Prafulla Kumar Samal reported in (1979) 3 SCC 4 and Sajjan Kumar. It would be apposite to extract the relevent portion of the judgement :
"...27. Now, so far as the prayer of the appellant to discharge him and the submissions made by Shri Vikas Singh, learned Senior Advocate on merits are concerned, the law on the scope at the stage of Section 227/228 CrPC is required to be considered.
28. In the case of N. Suresh Rajan (Supra) this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Section 227/228 CrPC. After considering earlier decisions of this Court on the point thereafter in paragraph 29 to 31 this Court has observed and held as under:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of CRL REV No 21 of 2009 Page 9 of 31 consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) CRL REV No 21 of 2009 Page 10 of 31 4 SCC (Cri) 21 : AIR 2013 SC 52], in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 :
AIR 2013 SC 52], SCC p. 482, para 15) "15. '11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.' (Onkar Nath case [(2008) 2 SCC 561 :
(2008) 1 SCC (Cri) 507], SCC p. 565, para 11)"
(emphasis in original)
31. Now reverting to the decisions of this Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC CRL REV No 21 of 2009 Page 11 of 31 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310], relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused:
31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction".CRL REV No 21 of 2009 Page 12 of 31
31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 :
1986 SCC (Cri) 256]. The same reads as follows: (SCC pp. 755-56, para 43) "43. ... Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of 'prima facie' case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed."CRL REV No 21 of 2009 Page 13 of 31
29. In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under:
"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609], Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 :
2002 SCC (Cri) 310], Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 :
(2015) 1 SCC (L&S) 505], Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265], State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 :
2003 SCC (Cri) 688], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 :CRL REV No 21 of 2009 Page 14 of 31
1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code 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 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 rights to discharge the accused. The Judge 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 statements 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 materials as if he was conducting a trial.
7. In Sajjan Kumar v. CBI : (2010) 9 SCC 368 :
(2010) 3 SCC (Cri) 1371], this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21) CRL REV No 21 of 2009 Page 15 of 31 "(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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 CRL REV No 21 of 2009 Page 16 of 31 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 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 disclose 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.""
30. In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC there cannot be a roving enquiry into the pros and cons of the CRL REV No 21 of 2009 Page 17 of 31 matter and weigh the evidence as if he was conducting a trial.
31. At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under :
"11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:
"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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject-matter of consideration by this Court. In State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257], Untwalia, J., while explaining the scope of the CRL REV No 21 of 2009 Page 18 of 31 said sections observed: [SCR p. 259 : SCC pp. 41-42 : SCC (Cri) pp. 535-36, para 4] Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously Judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.
13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229], Fazal Ali, CRL REV No 21 of 2009 Page 19 of 31 J., summarised some of the principles: [SCR pp. 234-35 :
SCC p. 9 : SCC (Cri) pp. 613-14, para 10] "(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 had 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 CRL REV No 21 of 2009 Page 20 of 31 make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 :
1977 SCC (Cri) 533 : (1978) 1 SCR 257]. In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions CRL REV No 21 of 2009 Page 21 of 31 are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim / prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court.
No interference of this Court is called for.
9. From a careful perusal of the impugned order , it is apparent that the learned trial court has not acted mechanically but has applied his mind to the allegations and materials available against the accused persons and considered the broad probabilities of the CRL REV No 21 of 2009 Page 22 of 31 case and dealt with the contentions raised by the accused persons before arriving at a conclusion that there are prima facie materials available on record to frame charge against the accused persons .
10. In the case of Muna @ Arjun Kar and another vs. State of Orissa (Supra), the appellants were challenging their conviction under Sections 454/395/397/307/427 of the I.P.C and Sections 25 & 27 of the Arms Act. But they had been charged only under Section -397 of the IPC .This Court has held as follows:-
"6. Record reveals that exclusive charge has been framed U/s.397 I.P.C. Such error is potential to cause failure of justice. To apprise that point it is apt to quote the following view of this Court in the decision reported in 1985 II OLR 171: Kailash Mahanta Vs. The State, which runs thus:-
"8....... Section 397 of the Code does not postulate a substantive offence. It prescribes the minimum sentence to be imposed on a culprit for commission of robbery or dacoity coming within the purview of this section. It is, therefore, legal and appropriate that the offender should be charged for an offence of robbery or dacoity under Sections 392,394 or 395, as the case may be, read with Section 397 of the Code and if found guilty, should be so convicted. In the instant case, however, this was not noticed by trial Court and a separate charge under Section 397 of the Code had been framed CRL REV No 21 of 2009 Page 23 of 31 against the appellant as if this section postulated a substantive offence and he was even convicted under section 397 of the Code instead of properly mentioning that the conviction was under Section 392 read with Section 397 of the Code. While framing charges by applying Section 397 of the Code, this aspect should be kept in mind by the trial court."
In the case of Kailash Mahanta ( supra) this Court held that a separate charge should not be framed only under Section 397 I.P.C but a charge under Section - 392 Sections 392 , 394 or 395, as the case may be, read with Section 397 of the Code should be framed and found fault with the trial Court for convicting the accused under Section - 397 IPC separately instead of mentioning the conviction to be one under Section 392 read with Section - 397 of the IPC and thereafter set aside the conviction under Section -397 I.P.C .
The Hon'ble Supreme Court in the case of Ashfaq vs State of NCT , reported in ( 2004) 3 SCC 116 , has held as follows:
9......." The provisions of Section 397, does not create any new substantive offence as such but merely serves as complementary to Sections 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity CRL REV No 21 of 2009 Page 24 of 31 committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in Section 34 IPC. Consequently, the challenge made to convic-tion under Section 397 even after excluding the applicability of Section 34 IPC does not merit countenance, for the reason that each one of the accused in this case were said to have been wielding a deadly weapon of their own, and thereby squarely fulfilled the ingredients of Section 397 IPC, de hors any reference to Section 34 IPC."
The model draft charge appended to Section -397 IPC provides that the charge under Section 397 is to be read with Section 392 and 395 I.P.C. From a reading of the same it is not forthcoming that simultaneous framing of charge under Section 395 IPC and Section 397 IPC is not envisaged in the IPC. It is extracted below :
Charge I, .............. hereby charge you ............as follows :
That on or about .... at ...... you committed robbery / dacoity offences punishable under Section -392 / 395 CRL REV No 21 of 2009 Page 25 of 31 I.P.C ......... and that at the time of committing the said robbery or dacoity you used a deadly weapon namely .... Or caused grievous hurt to A or attempted to cause death or grievous hurt to A and thereby committed an offence punishable under Section 392/395 IPC read with Section 397 IPC and within the cognisance of the Court of Session .
And I hereby direct that you be tried on the said charge .
11. The allegations against the petitioner was that armed with the other four accused he arrived at the spot and they committed dacoity , hence prima facie the necessary ingredients for commission of the offences under Section 395 and Section - 397 of the IPC are available to proceed against the petitioner for the purpose of framing of charge . As regards the meaning of the word "use" which appears in Section - 397 , it has been decided in a catena of decisions of the Hon'ble Supreme Court that holding a deadly weapon during commission of dacoity is enough to attract the same and it is not necessary that any injury may have been caused by use of the weapon .
In the case of Phool Kumar vs Delhi Administration reported in AIR 1975 AIR 905 , the Hon'ble Supreme Court has held as follows :
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.. ." He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them.
Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section - 397 of the Penal Code"...
In the case of Ganesh vs State reported in 2021 SCC OnLine SC 1023, the Hon'ble Supreme Court after examining the evidence against the accused set aside their conviction under Section 397 IPC . While doing so , the Hon'ble Court has explained the difference between Section 391 IPC Section 395 IPC and Section 397 IPC in the following manner:
"...52. Even otherwise there is no difference between Section 391/395 and Section 397 IPC so far as sentence / punishment except the difference in case of Section 397 IPC the punishment shall not be less than seven years. Otherwise, the 'robbery' and 'dacoity' are sine qua non. 'Dacoity' is nothing but an exaggerated version of 'robbery' with a difference in number of accused. Therefore, also even in a case where the accused is not convicted for the offence under Section 397 IPC, still he can be punished under Section 395 IPC and no prejudice shall be caused to him as ultimately CRL REV No 21 of 2009 Page 27 of 31 the prosecution has to prove the 'robbery' and 'dacoity' either for the offence punishable under Section 395 IPC or under Section 397 IPC. However, to bring the case against the accused under Section 397 IPC, the prosecution has to prove one additional fact that the offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person Therefore, the case is made out under Section 391 IPC read with Section 395 IPC. Despite the fact that the courts below convicted the accused under Section 397 IPC which is held to be unsustainable, in that case also if the case is made out under Section 391 IPC read with Section 395 IPC, still they can be convicted for the offence punishable under Section 391 read with Section 395 IPC even without even altering the charge. As observed hereinabove in the present case, the learned trial court framed the charge against the against the accused for the offence under Sections 395 and 397 IPC both"
I therefore find no illegality in the impugned order refusing to discharge the petitioner and other accused for the offence under Section - 395 of the I.P.C . Any defect in the manner of framing CRL REV No 21 of 2009 Page 28 of 31 of charge and its effect can only be considered at the time of hearing of the case or thereafter .
12. Shyam Mallik ( supra) was a case where the appellant had faced trial and been convicted for commission of offences punishable under Section - 395 of the IPC. He had been identified in the T.I. parade by P.W 1 . As P.W 1 stated in her evidence that she earlier knew the appellant , this Court held that holding of T.I.Parade was of no significance and there was no reason for P.W 1 not naming him in the FIR and this raised genuine doubt as regards the prosecution case .
In the present case no T.I. Parade has been held . The contention of the learned counsel for the petitioner raised for the first time before this Court by relying on the above decision is that the petitioner is liable to be discharged as the informant has not named the petitioner in the FIR even though he claimed to know him , is liable to be rejected as the explanation of the informant in the FIR for not being able to name all the accused persons is acceptable as one can know a person by his face but may not know/ remember his name . But it is apparent that subsequently , the informant was able to name the petitioner and the three other co accused before the other witnesses . That apart another witness , namely Rashmi Ranjan Pradhan has implicated the petitioner by CRL REV No 21 of 2009 Page 29 of 31 name . In the present case the contention that non holding of TI parade was fatal to the prosecution case is a question to be considered at the time of trial.
13. The other contentions of the learned counsel for the petitioner regarding absence of sanction for proceeding under Section - 25 and 27 of the Arms Act as it has been given by the ADM , the effect of absence of seizure of incriminating articles , effect of belated examination of a witness, non examination of a material witness and false implication of the petitioner by witnesses on account of acquaintance of the petitioner with the main accused, are contentions which should be raised and considered at the time of trial and this is not the stage where such questions should be considered as that would amount to holding a mini trial .
14. In view of the aforesaid discussion and after considering the submissions of the learned counsels , I find no error in the impugned order and hence it does not call for any interference . The Criminal Revision being bereft of merit is liable to be dismissed .
15. It is however made clear that what has been observed in this judgement is only for the purpose of disposal of the present Criminal Revision and any observation made shall not prejudice CRL REV No 21 of 2009 Page 30 of 31 the rights of the parties during the course of trial and the trial Court should not be influenced / inhibited by the observations made in this judgement and should proceed with the trial independently in accordance with law. It would be open to the petitioner to raise all his contentions during trial , which will be considered in accordance with law by the learned trial court .
16. The learned trial court is directed to commence the trial without further delay , since it is pending since more that twelve years .
17. The Criminal Revision is dismissed with the aforesaid observations .
18. Copy of this order be communicated to the learned Additional Sessions Judge , Kujang forthwith .
19. Urgent certified copy of the order be granted on proper application .
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(Savitri Ratho)
Orissa High Court, Cuttack Judge
Dated 16th November 2021 / Bichi
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