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2003 DIGILAW 267 (ORI)

Debabrata Tripathy v. State of Orissa

2003-03-31

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — Being aggrieved by the order dated 5.2.2003 passed by the Addl.Sessions Judge, Fast Track Court No. IV, Bhubaneswar in S.T. No. 323 of 2002 rejecting the petition filed by accused persons therein, including the petitioner, to discharge them from the alleged offences, the petitioner has approached this Court. 2. Learned counsel for the petitioner forcefully submitted that while rejecting the petition filed by the accused persons under Section 227 CrPC for discharging them, the Court below did not keep in mind the mandates of the said Section and passed the order in a mechanical manner without properly appreciating the facts. 3. Section 227 of the Code of Criminal Procedure reads as follows :- “ Discharge. - If, upon consideration of the record of the case and the documents submitted therein, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 4. It is well settled that at Sections 227-228 stage, i.e. at the stage of framing of charge, the Court is required to evaluate the materials on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged of¬fence. The Court may 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 op¬posed to common-sense or broad probabilities of the case. 5. The Supreme Court in the case of Smt. Om Wati and another v. State, AIR 2001 SC 1507 , reminded the High Courts to their statutory obligation not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjus¬tified litigation under the cloak of technicalities of law. 6. Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjus¬tified litigation under the cloak of technicalities of law. 6. No doubt, Section 227 CrPC confers special power on the Judge to discharge an accused at the threshold if “upon consideration of the record and documents he considers that there is not sufficient ground for proceeding against the accused”, but then his consideration of the records and documents at that stage is for the limited purpose of ascertaining whether or not there exist sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is suffi¬cient ground to proceed, he will frame charge under Section 228, if not, he will discharge the accused. The question new arises, as to what is the scope and ambit of consideration of the materi¬als by the trial Court at that stage. 7. The Supreme Court in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 , after considering the case-laws on the subject deduced as follows :- “(1) That the Judge while considering the question of fram¬ing 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 has 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 adduced 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. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced 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 (sic) under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouth-piece 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, and 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 evidence as if he was conducting a trial.” 8. What flows from the ratio of the aforesaid decision of the Supreme Court is that a Court should frame charge if prosecution shows that the materials placed on record and the documents relied upon give rise to a strong suspicion of the accused having committed the crime alleged against him. In the impugned order, the Court below has clearly observed that he has gone through the FIR and the statements of witnesses recorded under Section 161 CrPC and that from the FIR and the statements of witnesses, he found sufficient materials to frame charges in the instant case against the accused persons. In view of the fact that the impugned order itself reveals that the Court below had perused the statements and other materials and had applied its mind before framing the charges and had arrived at the conclusion that there was prima facie case against the accused persons, I do not find any reason to interfere with the impugned order. The Criminal Revision is dismissed. Revision dismissed.