Orissa High Court
Dillip Kumar Mohanty vs State Of Orissa on 31 August, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV NO. 656 of 2016
From the order dated 08.08.2016 of Smt. S. S. Mishra, J.M.F.C.,
Bhubaneswar in C.T. Case No.1409 of 2016.
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Dillip Kumar Mohanty ......... Petitioner
-Versus-
State of Orissa ......... Opp. party
For Petitioner: - Mr. Gouri Mohan Rath
A.K. Nayak
S.S. Padhy
S. Dwibedi
For Opp. party: - Mr. Dillip Kumar Mishra
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order- 31.08.2016
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S. K. Sahoo, J.This revision petition has been filed by the petitioner Dillip Kumar Mohanty under section 401 Cr.P.C. for setting aside the order dated 08.08.2016 passed by Smt. S. S. Mishra, learned J.M.F.C., Bhubaneswar in C.T. Case No. 1409 of 2016 in framing charges under sections 409/ 420/ 467/ 468/ 471/ 477-A/ 120-B of the Indian Penal Code.
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2. On 28.03.2016 on the First Information Report of one Rama Chandra Muduli, Administrative Officer, Office of the Regional Medical Research Centre, Bhubaneswar submitted before the Superintendent of Police, Economic Offences Wing, Bhubaneswar, E.O.W., Bhubanewswar P.S. Case No.6 of 2016 was registered under sections 409, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code against the petitioner and on completion of investigation, preliminary charge sheet was submitted on 23.07.2016 under sections 409, 420, 467, 468, 471, 477-A and 120-B of the Indian Penal Code against the petitioner keeping the investigation open under section 173(8) Cr.P.C. and accordingly, the learned S.D.J.M., Bhubaneswar took cognizance of such offences and the case record was handed over to the Dealing Assistant for preparation of police papers and intimation was given to the Investigating Officer to complete the investigation and as soon as possible to submit final charge sheet.
On 08.08.2016 the learned S.D.J.M., Bhubaneswar splitted up the case and supplied the police papers to the petitioner and the case record was transferred to the Court of Smt. S. S. Mishra, J.M.F.C., Bhubaneswar for disposal in accordance with law. On the very day, the case record was 3 received in the transferee Court and after going through the records, the learned J.M.F.C., Bhubaneswar framed charges against the petitioner holding that there is prima facie case so also strong grounds for presuming that the petitioner had committed the offences.
3. Learned counsel for the petitioner Mr. Gouri Mohan Rath contended that though in the impugned order, it is mentioned that after hearing both the sides on the point of charge, the charge was framed but in fact no such opportunity was afforded to the petitioner. He further contended that when on the very date, the police papers consisting of 223 sheets were supplied to the petitioner, the learned Trial Court should have given some time to the petitioner to go through the same and consult his advocate. Learned counsel for the petitioner further urged that since everything was done hurriedly, the petitioner could not get an opportunity to file an application under section 239 of Cr.P.C. for discharge and therefore, the impugned order is not sustainable in the eye of law and the same should be set aside and an opportunity should be provided to the petitioner to file an application for discharge which should be considered by the learned Trial Court in accordance with law. 4
Learned counsel for the State Mr. Dillip Kumar Mishra, learned Additional Government Advocate opposed the prayer made by the learned counsel for the petitioner and submitted that when prima facie materials are available on record against the petitioner, the Magistrate was justified in framing the charges after hearing both the sides on the point of charge.
4. Considering the submissions made by the learned counsels for the respective parties and on perusal of the three orders passed on 08.08.2016, it is quite apparent that not only the copy of the preliminary charge sheet consisting of 223 sheets was supplied to the petitioner on the very day and the case was also transferred from the Court of S.D.J.M., Bhubaneswar to the Court of Smt. S. S. Mishra, J.M.F.C., Bhubaneswar but also the charges were framed against the petitioner on that day.
Therefore, I am of the view that the petitioner could not have got sufficient opportunity to go through the police papers, consult his advocate and therefore, he could not exercise his right under section 239 Cr.P.C. by filing an application for discharge.
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5. Framing of charge under section 240 of Cr.P.C. is not an empty formality and if any discharge application is filed by the accused then opportunity of hearing has to be provided to the prosecution as well as the accused and if on hearing both the sides and examination of the police report and the documents sent with it, the Magistrate finds the charge groundless then he has power to discharge the accused, after recording his reasons for so doing. On the other hand, if after examination of the records and hearing both the sides, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence which he is competent to try and which, in his opinion, could be adequately punished by him then he can frame charge in writing against the accused. Though a detailed order is required to be passed for culminating the proceeding against the accused and passing an order of discharge but there is no legal requirement for the Trial Court to write an order showing the reasons for framing a charge.
The words appearing in section 239 of Cr.P.C.
"opportunity of being heard" confer a valuable right both on the prosecution as well as the accused. Either for holding the charge against the accused to be groundless and thereby passing a reasoned order of discharge under section 239 Cr.P.C. or coming 6 to an opinion that there is ground for presuming that the accused has committed an offence so as to frame a charge in writing under section 240 of Cr.P.C., it requires application of a reasonable, astute and alert judicial mind to the entire materials provided before the Court. Even though elaborate examination, meticulous analysis of the truth, veracity and effect of the materials on record are not permissible at that stage but the Court should not act in a casual or cavalier manner.
6. In the present case, the learned Magistrate has failed to provide proper opportunity to the accused-petitioner to go through the police papers, consult his counsel as well as file an application under section 239 Cr.P.C.
Speedy trial though an integral and essential part of fundamental right to life and liberty as enshrined in Article 21 of the Constitution of India but it does not mean taking away the valuable statutory rights provided to the parties and to deprive them of reasonable opportunity either to prosecute or defend the case properly otherwise it would be unreasonable, unfair and unjust trial leading to mockery of Justice.
In view of the above analysis, the impugned order dated 08.08.2016 passed by Smt. S. S. Mishra, J.M.F.C., Bhubaneswar in framing charges under sections 409/ 420/ 467/ 7 468/ 471/ 477-A/ 120-B of the Indian Penal Code against the petitioner is not sustainable in the eye of law and is therefore liable to be set aside. The same is accordingly hereby set aside.
7. Learned counsel for the petitioner submits that the application for discharge by the petitioner shall be filed by 16.09.2016 before the learned Trial Court. In the event, any such application is filed and the copy of such application is served on the learned Public Prosecutor to file his objection, if any, the learned Magistrate after hearing both the sides shall pass an order in accordance with law. The entire exercise should be completed by the end of October, 2016.
It is made clear that this Court has not expressed any opinion on the merits of the case and the learned Magistrate is at liberty to consider the discharge application, if any, filed by the petitioner in accordance with law without being prejudiced by any observations in this order.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 31st August, 2016/Sukanta