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2017 DIGILAW 1400 (ORI)

Gandhi Jena v. State of Orissa

2017-12-04

S.K.SAHOO

body2017
JUDGMENT S.K.SAHOO,J. - Heard Mr. Amitav Tripathy, learned Counsel for the petitioners, Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State and Mr. Sarat Chandra Satapathy, learned Counsel for the opposite Party No.2. The petitioners Gandhi Jena and Banchanidhi Jena have filed this application under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”) to quash the impugned order dated 04.02.2005 passed by the learned S.D.J.M. (P), Rourkela in G.R.Case No.1447 of 2002 in framing charges under Section 498-A/34 of the Indian Penal Code Section 4 of the Dowry Prohibition Act. The said case arises out of Mahila P.S.Case No.17 of 2002. Since the petitioner No.1 is the husband and the petitioner No.2 is the father-in-law of the opposite party No.2 Smt. Laxmi Jena @ Lenka and the case arises out of matrimonial dispute, on the last date, on the submission of the learned Counsels for the respective parties, this case was adjourned to obtain instruction regarding pendency of other cases between the parties so also to see if there is any possibility of compromise between the parties. The respective parties were also directed to remain present today and in that respect, the learned Counsels were asked to intimate their respective parties. Mr. Sarat Chandra Satapathy, the learned Counsel for the informant-opposite party No.2 stated that in spite of communication in the address which was available with him to the opposite party No.2, there is no response. Mr. Amitav Tripathy, learned Counsel for the petitioners also stated that there is no response from the petitioners. In view of such submissions made by the respective parties, since the petitioners and the opposite party No.2 are not present and this is an application under Section 482 of Cr.P.C. which is of the year, 2005, I am not inclined to adjourn the matter any further. The sole contention which was raised by Mr. In view of such submissions made by the respective parties, since the petitioners and the opposite party No.2 are not present and this is an application under Section 482 of Cr.P.C. which is of the year, 2005, I am not inclined to adjourn the matter any further. The sole contention which was raised by Mr. Amitav Tripathy, learned Counsel appearing for the petitioners is that since offence under Section 498-A of the Indian Penal Code carries punishment upto 3 years, it is a “warrant case” as per the definition prescribed under Section 2(x) of Cr.P.C. and therefore, the learned Magistrate should have followed the procedure which is laid down for trial of “warrant-case” by a Magistrate under Chapter-XIX of Cr.P.C. It is further contended that Section 240 (2) of Cr.P.C. mandates that charge shall be read over and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. It is contended that in the present case, in absence of the petitioners, since the charges were read over and explained to the representing lawyer to which he pleaded not guilty and claimed to be tried, therefore, the mandates as required under Section 240 (2) of Cr.P.C. have not been complied with and as such, the impugned order should be set aside. Mr. Priyabrata Tripathy, learned Addl.Standing Counsel appearing for the State on the other hand contended that since the representing lawyer of the petitioners pleaded not guilty to the charges and claimed to be tried on behalf of the petitioners, there is no question of any prejudice caused to the petitioners and therefore, on that ground, the impugned order should not be set aside. In the case of Niranjan Rana –Vrs. – State of Odisha reported in (2017) 68 Orissa Criminal Reports 1148, it is held as follows : “...... Section 240 (2) of Cr.P.C. mandates that it is the duty of the Trial Court not only to read the charge in presence of the accused but to explain the same to the accused so that he understands it thoroughly. Since the accused shall be asked then whether he pleads guilty of the offence charged or claims to be tried, unless he understands the charge property, there would be failure of justice. Since the accused shall be asked then whether he pleads guilty of the offence charged or claims to be tried, unless he understands the charge property, there would be failure of justice. The mechanical approach of framing charge by the Trial Court without understanding the purport of Section 240 (2) of Cr.P.C. can never be appreciated. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (Ref: Nazir Ahmed v. King Emperor reported in A.I.R. 1936 P.C. 253,Rao Shiv Bahadur Singh v. State of Vindhya Pradesh reported in A.I.R. 1954 SC 322, State of U.P. v. Singhara Singh reported in A.I.R. 1964 SC 358, Chandra Kishore Jena v. Mahavir Prasad reported in 1999 (8) SCC 266 , Dhananjaya Reddy v. State of Karnataka reported in 2001 (4) SCC 9 and Gujurat Urja Vikas Nigam Limited v. Essar Power Ltd. reported in 2008 (4) Supreme Court Cases 755). Section 240 of Cr.P.C. does not permit the accused to answer the charge through his Counsel. In case of HDFC Bank Ltd. v. J.J. Mankan reported in (2010) 45 OCR (SC) 294 : (2010) 1 SCC 679 , it is held that it will lead to an absurd situation that the charge was framed against the accused in his absence, which would defeat the very purpose of Sub-section (2) of Section 240 of Cr.P.C. In case of Santosh Kumar Nayak v. State of Orissa reported in 2011 (Vol.2) OLR 106, it is held that the charge was not read over and explained to the accused in person and the same is in violation of Section 240 (2) of Cr.P.C. In case of Tankadhar Mishra v. Republic of India reported in Vol.I (2017) Current Criminal Reports 65, it is held that in view of the language of Section 240 (2) Cr.P.C. it appears that the same is mandatory and in the case, the charge was neither read and explained to the petitioner nor his plea of guilty or otherwise was recorded. Concession of Counsel cannot override statutory mandatory provisions and therefore, framing of charge against the petitioner in his absence has defeated the very purpose of Sub-section (2) of Section 240 of Cr.P.C.” In view of the proposition of law as laid down in the case of Niranjan Rana (supra), I am not inclined to accept the objection which has been raised by the learned Addl. Standing Counsel for the State and since it is not disputed that the charge has been framed in violation of the procedure as laid down under Section 240 (2) of Cr.P.C., the impugned order is set aside and the petitioners are directed to appear in person before the learned S.D.J.M.(P), Rourkela on 8th January, 2018 without fail and in their presence, the learned Magistrate shall frame the charges in accordance with law. With the aforesaid observation, the CRLMC is disposed of. CRLMC disposed of.