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2011 DIGILAW 135 (ORI)

Santosh Kumar Nayak v. State of Orissa

2011-03-03

I.MAHANTY

body2011
ORDER 03.03.2011 — Heard Mr. M.R. Behera, learned counsel for the petitioner and Mr. Kanungo, learned Additional Standing Counsel on behalf of the State. In this application under Section 401 Cr.P.C., the petitioner has sought to challenge the order dated 11.10.2010 passed in G.R. Case No. 88 of 2008, whereby, the learned J.M.F.C., Baramba has been pleased to frame charges under Sections 409,420,467 & 120(B) of I.P.C. against the present accused petitioner in his absence. The order further indicates that the contents of the charge were read over to the “representing lawyer” for the accused person to which he pleaded not guilty and claimed for trial. Learned counsel for the petitioner asserts that this is not permissible in view of the mandatory requirements of Section 240 Cr.P.C. and in particular Sub-Section (2) thereof, which is quoted herein below: “240. Framing of Charge :- (1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.” Learned counsel for the petitioner placed reliance on a judgment of the Hon’ble Supreme Court in the case of HDFC Bank Ltd. V. J.J. Mannan @ J.M. John Paul and another, A.I.R. 2010 Supreme Court 618, wherein it is noted that it is mandatory that after framing of charges against the accused person, the contents of the charge shall be read over by the learned Magistrate and explained to the accused and thereafter the accused may be asked whether he pleads guilty or not. Learned counsel for the petitioner further asserts that the framing of charge under Section 120(B) of I.P.C. is indicative of non-application of mind, since the petitioner is the sole accused. Learned counsel for the State, on the other hand, submits that although the date i.e. 11.10.2010 had been fixed for consideration of charge, the accused did not appear on the same day and a petition under Section 317 Cr.P.C. has been filed through its counsel on his behalf which came to be allowed. Learned counsel for the State, on the other hand, submits that although the date i.e. 11.10.2010 had been fixed for consideration of charge, the accused did not appear on the same day and a petition under Section 317 Cr.P.C. has been filed through its counsel on his behalf which came to be allowed. Therefore, he having filed such an application and the application under Section 317 Cr.P.C. having been allowed, he ought not to be permitted to raise question against the charge being framed in his absence. In view of the aforesaid contentions and Sub-Section (2) of Section 240 Cr.P.C. and on perusal of the impugned order dated 11.10.2010, it appears therefrom that the charge was not read over and explained to the accused in person. Therefore, the same is violation of Section 240(2) of Cr.P.C. Apart from the above, a charge has been framed under Section 120(B) of I.P.C. merely because the I.O. on conclusion of investigation submitted the charge sheet and amongst the various other provisions of the Indian INDIAN PENAL CODE, included offence under Section 120(B) of I.P.C. It appears that the learned Magistrate has mechanically framed the charges on all the provisions of law contained in the charge sheet without applying his judicial mind. Admittedly in the present case, there is only one accused who is the petitioner in the present case. Therefore, no question of framing of charge under Section 120(B) can nor does arise. Accordingly, the order dated 11.10.2010 passed by the learned J.M.F.C., Baramba in G.R. Case No.88 of 2008 is quashed and the learned J.M.F.C. is directed to proceed in the matter afresh after complying with the mandatory requirement of Section 240(2) of Cr.P.C. With the aforesaid observations and directions the Revision is allowed. Learned counsel for the petitioner is directed to file the requisites for communication of this order to the trial Court within one week from today. Urgent certified copy of this order be granted on proper application. Revision allowed.