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2006 DIGILAW 611 (ORI)

Biju @ Sithila Kumar Panda v. State of Orissa

2006-08-18

A.S.NAIDU

body2006
ORDER 18.8.2006 — Heard learned counsel for the petitioner and learned counsel for the State. 2. This is a petition under Section 401 read with Section 397 of the Code of Criminal Procedure. The petitioner is facing trial as an accused in G.R. case No. 1111/2003 pending in the Court of learned S.D.J.M., Bhubaneswar for alleged commission of offences under Sections 341, 323, 294, 354, 506 and 493 of the I.P.C. Being aggrieved by order dated 23.3.2006 passed by learned S.D.J.M., Bhubaneswar the petitioner has approached this Court. It appears that after completion of the investigation and submis¬sion of charge sheet, the Court below took cognizance of the offences under the aforesaid sections. Thereafter a petition was filed under Section 227 of the Cr.P.C. by the petitioner with a prayer to discharge the accused. According to Mr. Ray, learned counsel for the petitioner, there was no materials to take cogni¬zance under Section 493 of the I.P.C. 3. The order dated 12.5.2006 reveals that a petition was filed by the accused under Section 227 of Cr.P.C. with a prayer to discharge him. The Court below adjourned the matter to 2.6.2006 for further hearing on the point of framing charge. The order dt. 2.6.2006 reveals that the prosecution filed a written note of arguments to the petition filed by the accused under Section 227 of the Cr.P.C the case was adjourned to 5.6.2006 for further hearing on the point of charge. Thereafter by order dated 23.6.2006 the Court below framed charge against the petitioner for the offences under Sections 341, 323, 294, 354, 506 and 493 of the I.P.C. Mr. Ray, forcefully submitted that without dispos¬ing of the petition filed under Section 227 of the Cr.P.C. the Court below acted illegally in framing charge. It is further submitted that the said petition is still pending and by the action of the Court below the petitioner is greatly prejudiced. 4. The submissions made by Mr. Ray, learned counsel for the petitioner, are strongly repudiated by Mr. Sahoo, learned counsel for the informant. According to him, as the offences are triable by Magistrate, petition under Section 227 of the Cr.P.C. is not maintainable. That apart he further submitted that the Court below after perusal of the materials available and on being prima facie satisfied had framed charges. The order does not suffer from any infirmity or illegality. Sahoo, learned counsel for the informant. According to him, as the offences are triable by Magistrate, petition under Section 227 of the Cr.P.C. is not maintainable. That apart he further submitted that the Court below after perusal of the materials available and on being prima facie satisfied had framed charges. The order does not suffer from any infirmity or illegality. He further submitted that trial has already commenced and the complainant has been examined and cross-examined and at this belated stage the order of framing charge should not be disturbed. According to Mr. Sahoo, in course of hearing the Court below has power or authori¬ty to either add or substitute and as such no prejudice would be caused to the petitioner. 5. In reply Mr. Ray fairly submitted that though strictly the petition filed under Section 227 of the Cr.P.C. is not main¬tainable, but then the Court below has power under Section 239 of the Cr.P.C. to entertain the said petition. According to Mr. Ray, it was incumbent upon the Court to dispose of the said petition before framing the charge. Non-compliance of such requirement causes harassment and prejudice to the petitioner. 6. I have heard learned counsel for the petitioner and learned counsel for the informant at length and perused the mate¬rials available. The contentions raised by Mr. Sahoo, learned counsel for the informant has some force. In fact a petition under Section 227 of the Cr.P.C. is not maintainable, on the other hand, the Court below has power under Section 239 of the Cr.P.C. to entertain the prayer made. But then, law is well settled that if the Court has power to pass an order, the nomen¬clature of a petition should not stand on the way and as such it was open to the Court to treat the petition to be one under Section 239 of the Cr.P.C. and deal with it in accordance with law. That apart no objections were also raised before the said Court with regard to the maintainability of a petition under Section 227 of the Cr.P.C. Be that as it may be, fact remains that the petition filed by the accused persons to discharge them has not been disposed of. In other words, the Court below without disposing of the petition has framed charges by order dtd. 23.6.2006. The Court below without disposing of the petition has farmed charges by order dated 23.6.2006. In other words, the Court below without disposing of the petition has framed charges by order dtd. 23.6.2006. The Court below without disposing of the petition has farmed charges by order dated 23.6.2006. Non-disposal of the petition filed by the petitioner definitely causes prejudice to him. Therefore, this Court has no hesitation to set aside the order dated 23.6.2006 and I direct accordingly. I further direct the Court below to reconsider the petition said to have been filed by the petitioner under Section 227 of the Cr.P.C. and dispose of the same and frame charges in accordance with law after giving an opportunity of hearing to all the parties. It is needless to say that the evidence said to have been recorded in the meanwhile shall remain in tact. However, the petitioner shall be given an opportunity for further cross-examination, if exigency arises. With the aforesaid observation the CRLMC is disposed of. CRLMC disposed of.