Orissa High Court
Rashmi Ranjan Pal @ Aju vs State Of Odisha ::: Opposite Party on 4 September, 2023
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV NO. 423 OF 2023
In the matter of a Revision under section-397 read with section-401
of the Code of Criminal Procedure, 1973 and from an order dated
01.08.2023 passed by the learned Presiding Officer, Special Court
(SC & ST), Balasore in Special Case No.36/121 of 2023.
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Rashmi Ranjan Pal @ Aju ::: Petitioner.
-versus-
State of Odisha ::: Opposite Party.
Appeared in this case by Hybrid Arrangement
(virtual/physical mode)
==============================================
For Petitioner - Mr. D.P. Dhal,
Sr. Advocate & associates.
Mr. S. Mohapatra, A.K. Parida,
A. Pradhan, A. Ray,
P.K. Mallick and
Ms. Shradhanjali Sahu, Advocates.
For Respondent - Mr. S.K. Nayak,
Additional Govt. Advocate.
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING::22.08.2023, DATE OF JUDGMENT: 04.09.2023 D. Dash, J. The Petitioner, by filing this Revision has called in question the legality and propriety of an order dated 01.08.2023 passed by the Presiding Officer, Special Court (S.C. & S.T.), Balasore, in Special Case No.36/121 of 2023. By said order, the Trial Court has rejected the application filed by the Petitioner arraigned as an accused in the above case for his discharge under section 227 of the Code of Criminal Procedure, 1973 (for short, 'the Code').
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2. Basing upon the written report of one Kartik Singh that on 20.02.2023 morning accused Chandan Kumar Rana having come to their house had thrown acid upon his daughters and their children attempting to cause their death; Sahadevkhunta P.S. Case No.56 of 2023 for commission of offences under section 452/326-A/307 of the Indian Penal Code, 1860 (for short, 'the IPC') was registered against said Chandan Kumar Rana being arraigned the sole accused. In course of time, victim Banita Singh @ Rana having succumbed to the injuries sustained on account of that act of throwing of the acid upon her by that accused Chandan, offence under section 302 of the IPC came to be added.
3. The Investigating Officer (I.O.) on completion of investigation submitted the Final Form placing seven (7) persons arraigning them as the accused to face the Trial for commission of the offences under sections 452/326-A/302/212/120-B of the IPC, section 3(2)(v) of S.C./S.T. (POA) Act. This Petitioner is one among those, in total, seven (7).
4. Mr.D.P. Dhal, learned Senior Counsel submitted that keeping in view the contentions raised for discharge of the Petitioner (accused), the impugned order containing the discussion as made at paragraph-5 being gone through would clearly show that there is total non-application of mind and the Trial Court having not even viewing the materials projected against this Petitioner (accused) for facing the Trial with other accused persons on their face value and in their proper prospective has abruptly jumped into a conclusion that the Page 2 of 17 // 3 // application filed by this Petitioner (accused) for his discharge does not merit consideration.
He next submitted that the Trial Court upon discussion of the materials collected in course of investigation has not even said that for commission of what offence/offences, there arises the presumption as against this Petitioner (accused) so as to be charged and face the Trial, which, according to him, was imperative on the part of the Trial Court as this Petitioner (accused) firstly contended that there is absolutely no material worth the name as against him to be arraigned as an accused; secondly, that except generally stating that he is a friend of the brother of the sister of the principal accused which too has been stated by the sole witness in a confused manner, incapable of even drawal of any inference to that effect; there is nothing to bring him in the entire crime scenario as alleged.
It was submitted that accepting the materials on record as to what two accused persons and one witness namely, Prabesh Pal have stated, by no stretch of imagination, it can be presumed that this Petitioner (accused) had helped the principal accused Chandan in providing him a lift after he committed the principal offences joining accused namely, Prakash Pal, so as to be presumed to have committed the offence under section 212 of the IPC by harboring accused Chandan, who with other arraigned accused persons, except the present Petitioner (accused) is alleged to have committed the offences under section 452/326-A/302/120-B/212 of the IPC, section 3(2)(V) SC.ST (POA) Act. At this juncture, he stated that there is no person named Prabesh Pal in that village Deuli Panchaghanta and it's a Page 3 of 17 // 4 // creation for the purpose which cannot be totally lost sight of. He then placing the materials on record contended that none when has even stated the name of this Petitioner (accused) in performing any role in the entire crime episode as placed in the Final Form, there surfaces no ground to presume that this Petitioner (accused) has committed any such offences to stand be charged and face the trial. He then contended that by merely raising too remote a suspicion which according to him is uncalled for, in the worst case, the Petitioner (accused) without being placed in the same pedestal like other accused persons, may stand charged for commission of offence under section-212 of the IPC only He submitted that the Trial Court has not touched upon that aspect even though has noted about those materials i.e. the statement of one witness and then two co-accused persons which are per se not acceptable.
5. Mr. S.K. Nayak, learned Additional Government Advocate submitted that at this stage of framing the charge, the Court is not required to embark upon an exercise of weighment of the materials on record to find out as to whether a conviction can be secured or not. He thus submitted that when the involvement of this Petitioner (accused) is found from the statement of the witness Prabesh Chandra Pal receiving support from the statements of the co-accused persons, namely, Chandan Rana and his wife, Rashmita Pal, the Trial Court is justified in repelling the move of the Petitioner (accused) for his discharge.
6. This Court is in the seisin of the revision filed by the Petitioners in questioning the sustainability of an order passed by the Page 4 of 17 // 5 // trial court, refusing thereby to discharge the Petitioner (accused) in putting an end to the criminal trial in so far as he is concerned. At this juncture, before proceeding to dwell upon the contention as stated in the foregoing paragraph, it would be apt to take note of the settled principles of law in the matter of consideration of the application filed by the accused persons seeking their discharge in the criminal case.
7. The principles of law are too well settled that while answering the question of framing the charges, a duty is cast upon the Court to consider the record of the case and documents submitted therein. In that exercise, if the decision is to discharge the accused under section 227 of the Code of Criminal Procedure (in short, 'the Code'), the Court is called upon to give a definite opinion for said discharge. Meaning thereby, that if the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused after recording the reasons for doing so. The language of section 227 of the Code makes it clear that the Court cannot proceed merely on presumption and therefore, the word 'considers' finds place therein.
The next parameter is that if after considering the record of the case and the documents submitted there with and hearing in that behalf, the Court exercises the power to frame charges against the accused under section 228 of the Code, said view is tentative. Meaning thereby, that if the Court is of the opinion that there is ground for even presuming that the accused has committed an offence, he shall frame the charge in writing.
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8. It has been held in case of State of Bihar Vrs. Ramesh Singh; AIR 1977 SC 2018 that at this initial stage, truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged upon their critical analysis. It is not obligatory at the stage 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.
9. In case of Amit Kapoor Vrs. Ramesh Chander; (2012) 9 SCC 460, it has been held that at the stage of framing the charges, the court is not concerned with the proof, when upon careful perusal of the materials placed, there arises strong suspicion in the mind of the Court that the accused has committed the offence, which if put to trial could prove him guilty, the Court would be justified in proceeding with the trial by framing the charge. Here however the rule of caution comes into play that mere suspicion is not enough and the suspicion founded upon the materials on record must be of strength persuading the court to form a prima facie opinion justifying the trial as those when proved may lead to a result in favour of the prosecution.
10. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court for the purpose is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Ref.:- State of M.P. Vrs. Mohanlal Soni; (2000) 6 SCC 338.
11. In the recent case in M.E. Shivalinga Murthy Vrs. Central Bureau of Investigation, Bengaluru; (2020) 2 SCC 768, cited by the Page 6 of 17 // 7 // learned Additional Standing Counsel, Vigilance, the Hon'ble Apex Court referring to the earlier decisions including the one in case of P. Vijayan Vrs. State of Kerala and Another; (2012) 2 SCC 398 have discerned the following principles:-
(i) if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused;
(ii) the Trial Judge is not a mere Post Office to frame the charge at the instance off the prosecution;
(iii) the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court;
(iv) if the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial;
(v) it is open to the accused to explain away the materials giving rise to the grave suspicion;
(vi) the court has to consider the board probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities Page 7 of 17 // 8 // appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons;
(vii) at the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true;
(viii) there must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
The defence version not based upon, deriving no support from the materials or documents placed by the prosecution is not to be looked into at the stage when the accused seeks discharge. The 'record of the case' used in section 227 of the Code is to be understood as the documents and articles, if any produced by the prosecution.
12. In the backdrop of the above, it becomes necessary to address the rival contentions with reference to the materials placed on record being gone through.
In the F.I.R., it is stated that accused-Chandan in the morning hour threw acid upon the daughters and grand children of the Informant. One of the victims since succumbed to the said acid attack, the case turned to one under section 302 of the IPC. The incident having taken place on 20.02.2023, this Petitioner in course of investigation was arrested on 01.03.2023 and on completion of investigation; Final Form came to be submitted on 16.06.2023. The Special Court took cognizance of the offences under section-452/326- Page 8 of 17 // 9 // A/307/302/120-B/212 of the IPC and section-3(2)(v) of the SC & ST (PoA) Act.
13. On going through the F.I.R. and all other documents coming into being in course of investigation, it is seen that principal accused, namely Chandan Kumar Rana @ Tubulu has stated in his statement recorded under section-161 of the Code of Criminal Procedure during interrogation that after committing the principal offences, when he informed his wife namely, Rashmita Pal @ Rana, the co-accused that as per the agreement, he had executed everything in committing the offences, his wife (accused-Rashmita) instructed him to be there at Nuagaon Main Road as she had sent her brother (brother-in-law of accused-Chandan) and his friend to take him and accordingly, after sometime, the brother-in-law of accused-Chandan and his friend took him to Dantun Railway Station and left him there. Above the statement of accused-Chandan directly points at his brother-in-law (brother of accused Rashmita) i.e. accused Pintu @ Prakash Pal but the other one not by name and simply designating him as the friend of his brother-in law, accused Pintu @ Prakash Pal.
The other accused Rashmita Pal @ Rana who is the wife of principal accused-Chandan has stated to have sent her brother, accused Pintu@ Prakash Pal and his friend namely Aju @ Rashmi Ranjan Pal, the present Petitioner (accused). So, when accused Chandan is not disclosing the name of that friend of accused, Pintu @ Prakash Pal, his wife i.e. accused-Rashmita is stating the name of this Petitioner (accused). Her statement is however silent that when she sent them in a bike to give her husband, accused-Chandan a lift, she Page 9 of 17 // 10 // had told about all the happenings or even the reasons of their deputation and the purpose to be achieved. This being the state of affair in the statement of the above two accused persons, the only other material against the Petitioner-accused is the statement of one Prabesh Chandra Pal. His statement recorded under section-161 of the Cr.P.C. is that accused Rashmita Pal @ Rana had sent her brother namely, Rashmi Ranjan Pal (present Petitioner) and another boy of her village to bring accused-Chandan from Balasore. Undeniably, the present Petitioner is not the brother of accused Rashmita. He has been described as such by this witness-Prabesh, when accused Rashmita states to have sent her brother who is accused-Pintu @ Prakash Pal. Be that as it may, witness-Prabesh has disclosed name of Rashmi Ranjan Pal, (present Petitioner) to have been sent by accused- Rashmita to give a lift her husband (accused-Chandan) on the bike. So, when the name of the present Petitioner emerges in the statement of Prabesh, at this premature stage of consideration of charge, it would not be permissible to totally eschew his statement from the arena of consideration, taking a cue from the fact that this present Petitioner namely, Rashmi Ranjan Pal is not the brother of accused Rashmita and her brother is accused, Pintu @ Prakash Pal. With such statement of Prabesh although the statements of co-accused persons are not admissible in evidence yet it may so happen that if the prosecution establishes the role of the present Petitioner to that extent as stated, then the statements of the co-accused persons may lend some support to strengthen.
Page 10 of 17// 11 // The contention raised during hearing in reiteration of the stand taken in the Revision petition that such a person named by Prabesh Chandra Pal is not there in the village Deuli Panchaghanta under Jaleswar Police Station and so it has been just created in course of investigation for obvious reason, is however a matter to be dwelt upon during trial if so comes up.
Thus, it is found that when one witness namely, Prabesh is implicating the Petitioner by name to have been sent by accused Rashmita to bring accused-Chandan from Balasore and the statements of co-accused namely, Chandan remains that his brother-in-law with his friend having come to give him the lift after commission of the offences, had given the lift and the other accused Rashmita is also naming this Petitioner (accused) to have been sent by her with her brother, accused Pintu @ Prakash, no other witness cited in the Final Form for their examination are implicating this Petitioner (accused) in any other manner. With all these materials as discussed, it is found that the Trial Court in its order while disposing the application under section 227 of the Cr.P.C. filed by the present Petitioner (accused) is silent that the materials on record give rise to a presumption of commission of which of the offences of which the cognizance had been taken, by this Petitioner (accused) to stand charged and face the Trial. This omission is certainly an error to be taken note of and warrants due rectification. The Trial Court in such situation basing upon the materials available on record and consideration of the same on their face value without making deeper examination was certainly under legal obligation to indicate that for commission of which of the Page 11 of 17 // 12 // offence(s), there arises the presumption as against this Petitioner (accused).
14. The materials against this Petitioner (accused) as discussed in the foregoing paragraph, thus are to be effect that he had lent his hand with another accused in shifting accused-Chandan from one place to the another giving him a lift as directed by accused, Rashmita. It is thus indirectly said to help accused-Chandan to avoid the process of law for the offence committed by him. Since no material is available to show that this Petitioner (accused) was one of the parties in hatching the conspiracy with other accused persons for commission of the principal offences.
15. At this stage, thus it becomes necessary to note the ingredients which are to be established by the prosecution to bring home the guilt of an accused for an offence under Sec. 212, IPC. Section 212, IPC reads as follows:-
"Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment, Shall, if the offence is punishable with death, he punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine, and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be Page 12 of 17 // 13 // liable to fine, and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both....."
16. A reading of this Section 212, IPC would disclose that three things have to be proved by the prosecution, viz., (i) there must be an offender, and (ii) the offender should have already committed an offence and (iii) the person accused of under this Section should have harboured the offender knowing that he is an offender.
17. An 'Accessory after the fact' is sought to be punished under this section. An accessory after the fact is one who having knowledge of the commission of a felony by another receives, relieves, comforts or assists the felon. This section requires (1) commission of an offence, (2) harbouring or concealing the person knowing or believing him to be the offender, (3) such harbouring etc. must be with the intention of screening the offender from legal punishment. To attract the provisions of sec. 212 of the IPC; it is necessary to establish the commission of an offence, harbouring or concealing the person known or believed to be the offender; and such concealment must be with the intention of screening him from legal punishment- Sanjiv Kumar V State; (1999) 2 SCC 288.
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18. Nowhere in section 212 of the IPC, it is stated that the person concealed should be convicted for an offence. Even if the main offender leaves unpunished by the Court, the object of the provision under section 212 of the IPC requires that the person who has concealed or harboured the offender whom he believes and knows has committed the offence shall not be left unpunished if the other ingredients are established. The criminality lies in the act of concealment committed with the knowledge or belief that the person who is harboured or concealed is the offender and also with the criminal intention of screening him from legal punishment.
19. Section 26 of the Indian Penal Code defines 'reason to believe' which reads as follows:-
"A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise."
So, the person accused of harbouring an offender must have a knowledge or must have reason to believe that the person harboured or concealed has committed an offence. The word 'harbour' as a noun ordinarily means a place to shelter ships from the violence of the sea, and where ships are brought for commercial purposes to load and unload goods. In criminal law, 'to harbour' means to give the offender a shelter. S. 52A of the IPC defines 'harbour' as follows:-
"Except in section 157, and in Section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word 'harbour' includes the supplying a person with shelter, food, drink, money, Page 14 of 17 // 15 // clothes, arms, ammunition or means or conveyance, or assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension."
The word 'harbour' is defined as follows in Law Lexicon of P. Ramanatha Aiyer, Second edition as under:-
"In construing a statute making the harbouring or concealing of an offender a crime, it was said that the word 'harbour' is defined by Worcester 'To entertain; to shelter; to rescue; to receive clandestinely and without lawful authority'. By Webster; 'To shelter; to rescue; to secure; to secrete, as to harbour a thief. The word in statute only apply when the person is harboured or concealed with knowledge that he is an offender."
The word 'harbouring' is defined as follows:-
"Harbouring" means a fraudulent concealment, and hence, where slaves or prisoners ran away, and were found in the possession of defendant, who openly maintained them, and gave notice to plaintiff that he would do so until they were recovered by law there was no harbouring."
The word 'to harbour' is defined as follows :
"One harbours that which ought not to find room anywhere; one shelters that which cannot find security elsewhere; one lodges that which wants a resting place.Page 15 of 17
// 16 // Thieves, traitors, conspirators, are harboured by those who have an interest in securing them from detection;
either the wicked or the unfortunate may be sheltered from the evil with which they are threatened; travelers are lodged as occasion may require."
There should be a positive act by the person charged to harbour or conceal a person whom he knows or has reason to believe to be the offender.
20. Adverting to the case at hand even though it is found that the statement of that witness-Prabesh is not on the score that this Petitioner (accused) knew about the commission of offence by the accused-Chandan; Rashmita and others and then he had extended his helping hands with the accused, Pintu @ Prakash Pal who is the brother of accused and brother-in-law of accused-Rashmita and Chandan respectively; that in my considered view is to be gone into during Trial upon appreciation of evidence as would be placed therein and not at this stage of framing of the charge which is too premature.
21. In the wake of aforesaid, while concurring with the view taken by the Trial Court that it is not a fit case for clean discharge of this Petitioner (accused) and thereby put him completely out of the arena of the criminal Trial running on the alleged facts and circumstances, without such clear mention by the Trial Court in its order that for commission of what offence/s, this Petitioner (accused) would stand charged and tried; this Court feels inclined to fill the said flawed omission by holding that there arises a prima facie case against this Petitioner (accused) for being charged and face the Trial for Page 16 of 17 // 17 // commission of the only offence punishable under section 212 of the IPC for having harboured / concealed said accused-Chandan knowing or having reason to believe at the time of said habouring that accused- Chandan had committed the said offences under section-452/326- A/307/302/417/494/120-B of the IPC and section 3(2)(v) of S.C. & S.T. (POA) Act.
The Petitioner (accused) would now stand charged as above to face the Trial.
22. The CRLREV is accordingly disposed of.
It is needless to observe that whatever have been said and expressed hereinbefore for the limited purpose of consideration for framing of charge would have no influence during Trial.
(D. Dash), Judge.
Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 05-Sep-2023 14:03:55 Page 17 of 17