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2008 DIGILAW 64 (ORI)

NIRANJAN PRUSTY v. STATE OF ORISSA

2008-01-18

PRADIP MOHANTY

body2008
JUDGMENT : Pradip Mohanty, J. - This revision is directed against the order dated 18.07.2007 passed by the learned Sessions Judge, Balasore in S.T. No. 78 of 1998 rejecting an application u/s 216 read with Section 227 Code of Criminal Procedure 2. Brief facts of the case, which are relevant for the purpose of this revision, are that on 24.06.1998 charge was framed against the Petitioner under Sections 376(1)/493/417 IPC. Against the said order of framing charge, informant preferred a revision before this Court registered as Crl. Revision No. 284 of 1998 with a prayer to frame additional charge u/s 306 IPC. This Court disposed of the said revision on 25.03.2003 with the direction to modify and/or add other charges with reference to the offences alleged to have been committed by the accused persons after scanning the allegations made in the FIR as well as after perusing other connected statements, thereafter, the learned Sessions Judge by order dated 28.11.2003 was pleased to frame charge u/s 306 IPC in addition to other charges. Against that, the Petitioner preferred a revision before this Court, which was registered as CRLREV No. 971 of 2003. This Court after hearing the parties on 04.04.2007 set aside the said order of framing additional charge u/s 306 IPC with a direction that in course of trial if evidence comes up, the trial Court may exercise the jurisdiction u/s 216 Code of Criminal Procedure to frame additional charge u/s 306 IPC. Thereafter, a petition was filed by the Petitioner u/s 216 read with Section 227 of the Code of Criminal Procedure to discharge him from the offence u/s 376/493 IPC. The matter was heard on 18.07.2007 and the trial Court rejected the petition on the same day with an observation that the Petitioner filed the petition in order to delay the proceeding. Against that order, the Petitioner has preferred this revision. 3. Learned Counsel for the Petitioner submits that there was no material before the trial Court to frame charge under Sections 376/493 IPC when the victim never uttered a word regarding rape or any sexual relationship with the Petitioner in the dying declaration before a doctor. It was stated by the victim herself hat giving a false assurance of marriage the Petitioner continued love relationship with her. It was stated by the victim herself hat giving a false assurance of marriage the Petitioner continued love relationship with her. He further submits that in order to attract the provisions of Section 493 IPC, there must be material to show that the Petitioner by deceit caused the victim to believe that she has lawfully married him and cohabited or had sexual intercourse with him in that belief. But in the instant case, there is no material to that effect. Therefore, neither Section 493 IPC nor Section 376 IPC is attracted against the Petitioner. In support of his contention/he relied upon decisions in Akhaya Kumar alias Babua Parida v. State of Orissa 1998 (I) OLR 318 and Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Another, . 4. Mr. Behera, learned Addl. Govt. Advocate, vehemently contended that this petition was filed before the trial Court in order to Linger the proceeding. Charge was framed on 24.06.1998 under Sections 376/493/419 IPC. The same was not challenged before this Court by the accused-Petitioner. Thereafter, additional charge was framed u/s 306 IPC on 28.11.2003, which was challenged in a revision and the revision was disposed of by setting aside the additional charge u/s 306 IPC. Thereafter, a petition was filed by the accused-Petitioner to discharge him from the offence u/s 376/493 IPC. Therefore, the trial Court has rightly rejected the application. There is no infirmity in the said order passed by the learned Sessions Judge on 18.07.2007 and as such the revision is liable to be dismissed in limine. 5. Perused the records of Crl. Revision No. 284 of 1998, CRLREV No. 971 of 2003 and that of this case as well as the decisions cited by the Petitioner. In the instant case, initially charge was framed on 24.06.1998 under Sections 376/493/417 IPC, against which, the Petitioner had not preferred any revision. Rather, the informant preferred a revision before this Court, which was registered as CRLREV No. 971 of 2003, with a prayer to frame additional charge u/s 306 IPC. This Court disposed of the revision with a direction to the informant to file an application before the learned Sessions Judge, who should consider the same after scanning the allegations made in the FIR and after perusing the other connected statements and suitably modify or add the charge with reference to the offence alleged to have been committed. This Court disposed of the revision with a direction to the informant to file an application before the learned Sessions Judge, who should consider the same after scanning the allegations made in the FIR and after perusing the other connected statements and suitably modify or add the charge with reference to the offence alleged to have been committed. In other words, so far as Sections 376/493 IPC are concerned, they remained unaltered. In pursuance of the direction of this Court in the above criminal revision, the learned Sessions Judge by order dated 28.11.2003 framed additional charge u/s 306 IPC. Against the order of framing additional charge, the accused-Petitioner preferred CRLREV No. 971 of 2003 to this Court and this Court by order dated 04.04.2007 set aside the impugned order dated 28.11.2003 and directed that in course of trial if the learned Sessions Judge on the basis of evidence is satisfied that in fact there are ingredients satisfying the commission of offence u/s 306 IPC, it shall do so. Thereafter, the Petitioner filed an application to discharge him from the charge under Sections 376/493 IPC, which has been framed under Sections 216 and 228 Code of Criminal Procedure after roving inquiry. All that is required for framing a charge is that if on the basis of the materials on record the Court forms an opinion that the accused might have committed the offence, then it can frame the charge. In other words, charge may be framed when there existed a strong prima fact case. The trial Court on 24.06.1998 has considered these requirements and charge has been framed and the said order is final. Therefore, the Petitioner has no scope to file an application at this stage for discharge. The facts of the decision in Pradeep Kumar Verma's case (supra), as relied on by the counsel for the Petitioner, are quite distinguishable from the case at hand. 6. In view of the above, this Court is not inclined to interfere with the above order. However, this Court observes that if after closure of prosecution evidence nothing comes out against the Petitioner, it will be open to him to file an application at the appropriate stage u/s 232 Code of Criminal Procedure for discharge. In the event such an application is filed, the same shall duly be considered by the trial Court and disposed of in accordance with law. 7. In the event such an application is filed, the same shall duly be considered by the trial Court and disposed of in accordance with law. 7. It appears from the record that the sessions trial arises out of a G.R. case of the year 1997 and since then the case is lingering. In the meantime, ten years have elapsed. Therefore, this Court directs the learned Sessions Judge to dispose of the sessions trial by the end of June, 2008. 8. With the aforesaid observations, the CRLREV is dismissed. Final Result : Dismissed