Orissa High Court
CRLMC/1826/2018 on 25 June, 2018
Author: S. K. Mishra
Bench: S. K. Mishra
CRLMC No.1826 of 2018
02. 25.06.2018 Heard Mr. A.K. Hota, learned Advocate appearing
for the petitioner and learned Additional Standing Counsel
for the State.
The petitioner, being an accused for commission of
offences punishable under under Section 376 (2)(i) read with
Section 6 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as "the POCSO Act") in S.T.
Case No.222/149 of 2015-2017, corresponding to G.R. Case
No.2550 of 2015, arising out of Rengali P.S. Case No.130 of
2015, pending in the court of learned 2nd Additional
Sessions Judge-cum-Special Judge, Sambalpur, has filed
this CRLMC under Section 482 of the Cr.P.C. challenging
two orders passed on 26.05.2018 by the learned 2nd
Additional Sessions Judge-cum-Special Judge, Sambalpur,
rejecting his applications filed under Section 91 of the
Cr.P.C. to call for a report and a document from Rengali
Police Station and Section 227 read with Section 239 of the
Cr.P.C. to discharge him from the aforesaid alleged offences.
So far as the application under Section 227 read
with Section 239 of the Cr.P.C. is concerned, it is seen that
the petitioner-accused filed the said application praying
therein to discharge him for alleged commission of offences
punishable under Section 376(2)(i) read with Section 6 of the
POCSO Act, the learned 2nd Additional Sessions Judge-
cum-Special Judge, Sambalpur rejected the said application
by a short and cryptic order observing that the learned
defence counsel submitted that there is no material to frame
charge against the accused and the learned Spl. P.P. on the
other hand vehemently objected the submission of the
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learned defence counsel and then went on to hold that
"Perused the material on record and in my opinion there is
sufficient materials to frame charge against the accused. Hence,
petition filed under Section 227 read with Section 239 of the
Cr.P.C. stands rejected and let the record be put up on
28.05.2018 for consideration of charge".
It is well-settled law that while framing charge, it is
not necessary to give reasons. But, when any accused filed
an application under Section 227 of the Cr.P.C. in a session
trial and under Section 239 of the Cr.P.C. in a warrant trial,
then, the application has to be disposed of with reasons. In
other words, learned 2nd Additional Sessions Judge-cum-
Special Judge, Sambalpur was in duty bound to give reasons
to his conclusion, either rejecting the application or allowing
the application. In this case, it is seen that there is
absolutely no discussion on the points raised by the learned
counsel for the defence and in a simple and single sentence,
learned 2nd Additional Sessions Judge-cum-Special Judge,
Sambalpur has stated that there is sufficient materials to
frame charge against the accused. Hence, the order so far it
relates to rejection of the application filed under Section 227
read with Section 239 of the Cr.P.C, cannot be sustained.
Accordingly, the order dated 26.05.2018, so far it
relates to rejection of the application under Section 227 read
with Section 239 of the Cr.P.C. is concerned, passed by the
learned 2nd Additional Sessions Judge-cum-Special Judge,
Sambalpur in S.T. Case No.222/149 of 2015-2017 is hereby
quashed. The matter is remanded to the learned 2nd
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Additional Sessions Judge-cum- Special Judge, Sambalpur
back for re-consideration.
So far the application under Section 91 of the
Cr.P.C. is concerned, it is seen that the petitioner-accused
filed the said application praying therein to call for a report
and a document from the Rengali Police Station. In the said
application the petitioner-accused submitted that prior to
the incident, he received a telephonic message and an
unknown caller threatened him to implicate him in a very
serious case and that on the same day, the accused reported
the matter over telephone to the I.I.C., Rengali P.S. about
the telephonic message. But the police did not take any
action. It was also submitted that on 30.04.2016, he
reported the same matter in writing before the I.I.C., Rengali
P.S., but no steps were taken by the police. It is his further
assertion that the written report which he submitted before
the I.I.C., Rengali P.S. is a relevant document for just
decision of the present case.
It was further submitted by the petitioner-accused
that he could know about the alleged crime from his wife on
12.09.2015 and accordingly, he along with the victim and
her parents had been to Dr. Aswini Sa, Medical Officer of
P.H.C., Rengali to ascertain the truth. But according to his
stand, the Medial Officer who imparted treatment to the
victim, did not co-operate with them. It is also submitted in
the application that on the same day the accused, the
informant and his wife appeared before the I.I.C., Rengali
P.S. and after a long discussion, the informant and his wife
realizing their misdeed, handed over a written note to the
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I.I.C., Rengali P.S. that they do not want to lodge the
F.I.R., as the matter is baseless and motivated one.
The aforesaid application was filed to call for this
document from the Rengali P.S. Learned 2nd Additional
Sessions Judge-cum-Special Judge, Sambalpur while
considering the matter came to the conclusion that the
threatening call from an unknown number is no way
connected to the present case, as the petitioner-accused has
not mentioned as to when he received the threatening
telephonic call. The F.I.R. was lodged on 15.09.2015 and the
petitioner-accused submitted the written report with regard
to receiving of threatening call on 30.04.2016. Learned 2nd
Additional Sessions Judge-cum-Special Judge, Sambalpur
further observed that since the F.I.R. was registered on
15.09.2015, the petitioner-accused in order to escape from
the clutches of Law submitted a written report on
30.04.2016 long after registration of the F.I.R. He further
came to the conclusion that the circumstance speaks that
the report submitted by the accused before the police is an
afterthought one. Hence, he was of the opinion that calling
for the report from the police is not at all necessary.
About the incident on 12.09.2015, the petitioner
claimed that he could know about the incident on
12.09.2015 from his wife and on that day, he along with the
victim and her parents appeared before the I.I.C., Rengali
P.S. where the informant and his wife submitted a written
note that they do not want to lodge the F.I.R. as the matter is
baseless and motivated one. Learned 2nd Additional
Sessions Judge-cum-Special Judge, Sambalpur held that
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first formal F.I.R. was registered on 15.09.2016 when the
plain paper F.I.R. was received on the same day in the
police station. So, in the circumstances, what was the need
of the accused, the informant and his wife to appear before
the I.I.C., Rengali P.S. on 12.09.2015, when the F.I.R. was
not in existence and to submit a written note before the
I.I.C., Rengali P.S. that they do not want to lodge any F.I.R.
The learned 2nd Additional Sessions Judge-cum-Special
Judge, Sambalpur further held that the entire conduct
seems to be manufactured by the accused and such a note
even if is believed to have been submitted is not a relevant
paper for just decision of the case because even if it is
believed that such note was submitted by the informant and
his wife to the police, the F.I.R. was not in existence by that
time, which on the other hand was registered on 15.09.2015.
Therefore, the learned 2nd Additional Sessions Judge-cum-
Special Judge, Sambalpur rejected the application filed
under Section 91 of the Cr.P.C.
Developing his arguments, Mr. A.K. Hota, learned
Advocate appearing for the petitioner relies upon the
judgment of the Hon'ble Supreme Court in the case of Nitya
Dharmananda @ K. Lenin & Anr. -vrs.- Sri Gopal Sheelum
Reddy, also known as Nithya Bhaktananda and Anr. (in
Criminal Appeal No.2114 of 2017) with State of Karnataka
-vrs.- Gopal Sheelum Reddy, also known as Nithya
Bhaktananda (in Criminal Appeal No.2115 of 2017):
reported in 2018 (I) OLR (SC) 574, wherein a question arose
regarding maintainability of the application under Section 91
of the Cr.P.C. at the stage of framing of charge. In the
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reported case, the defence filed an application under
Section 91 of the Cr.P.C. on the ground that if the
investigator is not fair and the material of sterling quality,
though seized during investigation and available with him, is
deliberately left out from the charge-sheet, there is no bar for
the court to summon the said material. Taking a view
against the defence, it was argued by the appellant-State of
Karnataka therein that the view of the High Court is contrary
to law laid down by this Court in State of Orissa -vrs.-
Debendra Nath Padhi, (2005) 1 SCC 568 and reiterated in
the subsequent decisions.
Hon'ble Supreme Court having considered the
matter in the reported case observed that it is settled law
that at the stage of framing of charge, the accused cannot
ordinarily invoke Section 91 of the Cr.P.C. However, the
court being under the obligation to impart justice and to
uphold the law, is not debarred from exercising its power, if
the interest of justice in a given case so require, even if the
accused may have no right to invoke Section 91 of the
Cr.P.C. To exercise this power, the court is to be satisfied
that the material available with the investigator, not made
part of the charge-sheet, has crucial bearing on the issue of
framing of charge. Thereafter, the Hon'ble Supreme Court
have taken note of the observations made in the case of
Debendra Nath Padhi (supra) and then relied upon a
decision of the five Judges Bench in the case of Hardeep
Singh Etc. -vrs.- State of Punjab and Ors. Etc.: (2014) 3
SCC 92.
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I find it proper to take note of the exact paragraph
of the judgment on which the Hon'ble Supreme Court
have relied upon in the judgment cited by the learned
counsel for the petitioner as follows:
"17. The court is the sole repository of justice and a
duty is cast upon it to uphold the rule of law and,
therefore, it will be inappropriate to deny the
existence of such powers with the courts in our
criminal justice system where it is not uncommon
that the real accused, at times, get away by
manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so
strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation or
inquiry even though he may be connected with the
commission of the offence."
Relying upon this observations by the Hon'ble
Supreme Court in the reported case cited by the learned
counsel for the petitioner above, it was further held by the
Hon'ble Supreme Court that it is clear that while ordinarily the
Court has to proceed on the basis of material produced with
the charge sheet for dealing with the issue of charge but if the
court is satisfied that there is material of sterling quality which
has been withheld by the investigator/ prosecutor, the court is
not debarred from summoning or relying upon the same even if
such document is not a part of the charge sheet. It does not
mean that the defence has a right to invoke Section 91 Cr.P.C.,
de hors the satisfaction of the court, at the stage of charge.
Accordingly, the Hon'ble Supreme Court set aside the order of
the High Court and directed the trial court to proceed to deal
with the issue of framing of charge in the light of the
observations made therein.
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Learned counsel for the petitioner also relies upon a
decision of the Rajastan High Court in the case of Neelesh
Jain -vrs.- State of Rajasthan: reported in 2006 CriLJ 2151.
In the case of Neelesh Jain (supra) Sub-Section (6) of Section
173 of the Cr.P.C. has been discussed. Sub-Section (6) of
Section 173 of the Cr.P.C. indicates that if the police officer is
of opinion that any part of any such statement is not relevant
to the subject matter of the proceedings or that its disclosure to
the accused is not essential in the interest of justice and is
inexpedient in the public interest, he shall indicate that part of
the statement and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the accused
and stating his reasons for making such request. This provision
is not applicable to the present case. It is not the case of the
prosecution that the document which the petitioner-accused
alleged to be in existence and within the knowledge of the
investigator has not been made part of the charge-sheet and
the police officer who has submitted the same has not made
any prayer to exclude that document and on the prayer of the
defence counsel, copy thereof has not been given to the
accused. The document is collected, but it would not be
supplied to the petitioner-accused. The said document is a part
of the charge-sheet. However, in this case, the petitioner wants
to call the document which is not the part of the charge-sheet.
In this circumstance, I am of the view that the view
taken by the Hon'ble Supreme Court should be considered.
Hon'ble Supreme Court have held that when there is material
of sterling quality which has been withheld by the investigator/
prosecutor, the court is not debarred from summoning or
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relying upon the same even if such document is not a part
of the charge-sheet.
Keeping in mind the above, let me examine the
contentions raised by the learned counsel for the defence to
invoke Section 91 of the Cr.P.C. First of all, the defence claimed
that when the petitioner-accused received the telephonic call
immediately on that day he reported the matter to the I.I.C.,
Rengali P.S. over phone. He has not stated the date and time of
such telephonic call received by him. Moreover, there appears
to be no direct relation with this case. In other words, the
defence has not pointed out what is the direct link between the
offences allegedly committed and the telephonic call. Also, the
report has been made without any justifiable reason. Learned
counsel for the petitioner submits that since the petitioner was
in custody, he could not make the report and only after his
release, he submitted the report. The petitioner happens to be
61 years old mature man. He is an Advocate having practice for
about 30 years. So it was within his knowledge that he could
send such report from the prison through welfare officer of the
prison or even through registered post. Under trial prisoners
are not prevented from making grievance before the authority.
So, delay in lodging the report before the I.I.C. does not seem to
be logical in the present case. So I agree with the opinion
arrived at by the learned 2nd Additional Sessions Judge-cum-
Special Judge, Sambalpur.
The second point regarding calling for the alleged
written note submitted by the informant and his wife on
12.09.2015 that the allegation is baseless and motivated. In the
application filed before the learned 2nd Additional Sessions
Judge-cum-Special Judge, Sambalpur, learned counsel for the
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petitioner made the averments that the accused was
dragged to the Rengali P.S., where after due discussion,
the informant and his wife realized their misdeed and wrote a
written note in presence of I.I.C., Rengali P.S. mentioning
therein that "WE DO NOT WANT TO LODGE THE F.I.R. AS THE
MATER IS BASELESS AND MOTIVATE ONE". He also stated
that on 12.09.2015, he came to know about the occurrence and
took the victim and her parents to Dr. Ashwini Sa, Medical
Officer, P.H.C., Rengali to accretion the truth. All these matters
if are true, only indicate the fact that the allegation has been
made against the petitioner even prior to lodging of the F.I.R..
In any case, even if any such document given by the informant
and his wife then also this is not a document of sterling quality
because by then no criminal case was registered, no enquiry or
investigation was pending to show that the informant and his
wife stating before the I.I.C. concerned that they do not want to
file any F.I.R. which does not seem to be relevant for the
purpose of the case. Moreover, such document is not of sterling
quality which should be considered at the time of framing of
charge.
Hence, this Court is of the opinion that reasoned
order passed by the learned 2nd Additional Sessions Judge-
cum-Special Judge, Sambalpur is quite justifiable and is not
required to be interfered. In fact, in the case of Alakh Alok
Srivastava -vrs.- Union of India & Ors. (Civil Petition (C)
No.76 of 2018), the Hon'ble Supreme Court have directed that
the matter relating to POSCO Act should be expedited and
disposed of as early as possible and for that purpose, necessary
directions have been issued to all High Courts. If any
application of this nature is allowed, then it would amount to a
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fishing and hunting exercise by the trial court and the case
would be unnecessarily delayed. In the aforesaid case, the
Hon'ble Supreme Court have issued the directions as follows:
"(i) The High Courts shall ensure that the cases
registered under the POCSO Act are tried and
disposed of by the Special Courts and the presiding
officers of the said courts are sensitized in the
matters of child protection and psychological
response.
Xx xx xx xx xx xx xx xx xx xx xx
Xx xx xx xx xx xx xx xx xx xx xx
Xx xx xx xx xx xx xx xx xx xx xx
Xx xx xx xx xx xx xx xx xx xx xx
Xx xx xx xx xx xx xx xx xx xx xx"
In that view of the matter, this Court is of the view
that there is no need to interfere with the order dated
26.05.2018 passed in S.T. Case No.222/149 of 2015-2017 by
the learned 2nd Additional Sessions Judge-cum-Special Judge,
Sambalpur, so far it relates to rejection of the application filed
under Section 91 of the Cr.P.C. The petitioner has also prayed
to quash the proceeding. Since the matter has been remanded
to the court below to re-hear the same on the question of
discharge under Section 227 read with Section 239 of the
Cr.P.C., this Court is not inclined to give any observation to
that count.
In the result, this CRLMC is allowed in part. The
order dated 26.05.2018 so far it relates to rejection of
application filed under Section 227 read with Section 239 of the
Cr.P.C. is quashed. The matter is remitted to the learned 2nd
Additional Sessions Judge-cum-Special Judge, Sambalpur back
for re-consideration of the matter on the question of discharge.
Parties are directed to appear before the learned 2nd
Additional Sessions Judge-cum-Special Judge, Sambalpur
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within a period of fifteen working days hence along with a
certified copy of this order. On such event, the learned 2nd
Additional Sessions Judge-cum-Special Judge, Sambalpur
shall fix a date and, after affording reasonable opportunities of
hearing to the petitioner as well as the Spl. P.P., shall
scrutinize the grievance and the record and dispose of the
same by a reasoned order within a period of fifteen days of their
appearance.
The CRLMC is disposed of accordingly.
Urgent certified copy of this order be granted on
proper application.
...........................
S. K. Mishra, J.
BJ