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2007 DIGILAW 815 (ORI)

Jugal Kishore Behera v. State of Orissa

2007-10-12

PRADIP MOHANTY

body2007
JUDGMENT PRADIP MOHANTY, J. : This revision has been preferred against the order dated 18.09.2006 passed by the J.M.F.C., Ber¬hampur, Ganjam in G.R. Case No.932 of 2001 rejecting the applica¬tion of the petitioner under Section 227 Cr.P.C. and framing charge against him under Sections 379/411/34 IPC. 2. The case of the petitioner is that on the basis of the FIR lodged by the S.I. of Police, Baidyanathpur P.S., he has been implicated in Baidyanathpur P.S. Case No.221 of 2001 correspond¬ing to G.R. Case No.932 of 2001 under Sections 379/411/34 IPC. On receipt of the final form, the S.D.J.M., Berhampur took cogni¬zance of the aforesaid offences and transferred the case to the Court of J.M.F.C., Berhampur for trial. Before the J.M.F.C., Berhampur, the petitioner filed a petition under Section 227 Cr.P.C. with a prayer to discharge him. Learned J.M.F.C., after hearing the counsel for the petitioner and his counterpart as well as considering the materials available on record was not inclined to discharge the petitioner and accordingly rejected the petition under Section 227 Cr.P.C. and framed charge against the petitioner under Sections 379/411/34 IPC. 3. Counsel for the petitioner submitted that there is no material to make out a prima facie case under Sections 379/411/34 IPC against the petitioner. None of the witnesses in their state¬ments recorded under Section 161 Cr.P.C. has stated anything against the present petitioner in any manner regarding his in¬volvement in the aforesaid case. The vehicle in question has not been seized from the possession of the petitioner. There is nothing on record that the petitioner received a stolen vehicle from anybody. Therefore, the charge framed against him is illegal and not sustainable. 4. Learned Addl.Standing Counsel submitted that during the course of investigation 19 witnesses have been examined by the I.O. On 14.01.2001 the Investigating Officer while investigating the case reached Aska Road and found that one Herohonda motorcy¬cle in damaged condition was lying by the side of the road. On confidential inquiry, he came to learn that the present petition¬er had kept that motorcycle in his house. On that very day, he brought out the same and parked it on the road side. He further submitted that the Investigating Officer learnt that the peti¬tioner was working in D.I.B., Berhampur and had close nexus with criminals. Earlier, he had disposed of some stolen motorcycles. On that very day, he brought out the same and parked it on the road side. He further submitted that the Investigating Officer learnt that the peti¬tioner was working in D.I.B., Berhampur and had close nexus with criminals. Earlier, he had disposed of some stolen motorcycles. The 161 statements of Brundaban Gouda and Sarat Chandra Behera go to show that the motorcycle was with the present petitioner and he had parked the same on the side of the road on that day. But they did not disclose their address. 5. Perused the statements of the witnesses recorded under Section 161 Cr.P.C. and the written note supplied by the parties. The submissions advanced by the counsel for the respective par¬ties are matters for trial. At the stage of framing of charge Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. It is not the stage where prosecution should establish the offences against the accused beyond all reasonable doubt. In other words, the trial Court should only be satisfied that a prima facie case exists against the accused. The require¬ment for framing charge is that the trial Court forms an opinion that there is a ground for presuming that the accused had commit¬ted the offence, which he is competent to try. In the present case, some of the witnesses have stated before the I.O. that the accused-petitioner had parked the motorcycle in question by the side of the road. Therefore, presumption of existence of a prima facie case against him is there and no illegality has been com¬mitted by the learned J.M.F.C. in rejecting the application for discharge. However, after closure of the prosecution evidence and if no material comes out against the petitioner, it will be open to him to file an application under Section 245 Cr.P.C.. In the event such an application is filed, the learned J.M.F.C., shall consider and dispose of the same in accordance with law by pass¬ing a reasoned order. 6. With the aforesaid observation, the revision is dis¬missed. Revision dismissed.