| SooperKanoon Citation | sooperkanoon.com/532813 |
| Subject | Criminal |
| Court | Orissa High Court |
| Decided On | Aug-22-1994 |
| Case Number | Criminal Revision No. 362 of 1993 |
| Judge | A. Pasayat, J. |
| Reported in | 78(1994)CLT1052; 1994(II)OLR440 |
| Acts | Code of Criminal Procedure (CrPC) , 1973 - Sections 228 and 240 |
| Appellant | Gopinath Padhi |
| Respondent | State and anr. |
| Appellant Advocate | B.B. Ratho, Biswanath, Rath, R.P. Mohapatra, B. Senapati, K.R. Mohapatra, S. Ghosh, S. Jethi and J.N. Rath |
| Respondent Advocate | B.K. Panda, Adv. (for opp. party No. 2) and ;Addl. Standing Counsel (for opp party No. 1) |
| Disposition | Application dismissed |
| Cases Referred | and State of Bihar v. Raj Narain Singh
|
Excerpt:
- labour & services
pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules.
- 3. petitioner's stand in essence is that on the basis of identification by one ganju gamango, a co-accused, who was sarpanch of serango grama panchayat, petitioner acted in good faith and made the identification of the person who received the amount. 4. the learned counsel for petitioner has urged that the petitioner is a very reputed advocate of parlakhemundi bar and has acted in good faith and in the absence of mens rea he should have been discharged. the purpose of framing charge is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and there is some material for proceeding against him. a strong suspicion is sufficient to name charge. before framing a charge, he should be satisfied that there are materials on record on the basis of which it can reasonably be concluded that the accused is in any manner connected with the incident leading to the prosecution (see state of karnataka v. at that stage even a very strong suspicion founded upon materials before the magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge. there must be an intelligent participation by the court and due care must be exercised by it while framing the charge or examining the accused persons as these are not matters of empty formality. . 227 and 228 of the code is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceeding against him. the evidence has yet to be taken and the aspects which accused terms vulnerable can very well be clarified by evidence when the prosecution has its opportunity of placing the case through witnesses in court, it would be hazardous to act on the discrepancies unless they are so fatal and glaring as to affect the credibility of the prosecution case without affording reasonable opportunity to prosecution to substantiate the allegations.a. pasayat, j.1. petitioner calls in question legality of order dated 19-6-1993 passed by learned subdivisional judicial magistrate, parlakhemundi refusing to accept petitioner's prayer for discharge, he did not accept the contention that there was no material to frame charge against him.2. the allegations which necessitated the proceeding are to the effect that money was paid to a wrong person on the basis of identification made by the petitioner. one sajani bhuyan was to receive compensation on account of death of her husband saka sabara, arising out of an accident. taka alias thokat sabara, son of deceased saka sobara was also to receive the amount of compensation. the amounts were to be paid by the asst. labour commissioner, berhampur. it transpired that on the basis of false identification money was paid to a wrong person. cognizance was taken of offences punishable under sections 419, 420 read with section 34, ipc. process was issued to the petitioner and three others.3. petitioner's stand in essence is that on the basis of identification by one ganju gamango, a co-accused, who was sarpanch of serango grama panchayat, petitioner acted in good faith and made the identification of the person who received the amount. the learned sdjm on consideration of the application held that there was sufficient material to proceed against the petitioner. accordingly prayer for discharge was rejected.4. the learned counsel for petitioner has urged that the petitioner is a very reputed advocate of parlakhemundi bar and has acted in good faith and in the absence of mens rea he should have been discharged. it is also submitted that the complainant's stand before the commissioner for workmen's compensation cum-assistant labour commissioner was different from what was has been stated in the case (g.r. case no. 321 of 1989 in the court of sdjm, parlakhemundi). the learned counsel for the complainant (opp. party no. 2 herein) has submitted that the statement alleged to have been given before the commissioner is not part of the record and in any event whether the petitioner had any guilt intent or not is a matter for trial and at this juncture there is no scope tor discharge of the petitioner.5. a judge frames charge if after considering the records of the case and the documents and on hearing the arguments of both sides, he thinks that there is ground for presuming that the accused has committed an offence. the purpose of framing charge is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and there is some material for proceeding against him. a strong suspicion is sufficient to name charge. possibility of acquittal or conviction is not the test at the initial stage the truth, veracity and effect of evidence are not to be meticulously judged and the standard of test, proof and judgment for finding the accused guilty or otherwise, is not to be applied. the conditions for the framing of a charge are (i) presumption of the commission of an offence on the materials before the court; and (ii) charge is framed when the court is of opinion that there is some evidence to support the accusation. the judge has to apply his judicial mind on the materials on record for consideration whether there is ground to believe about commission of the offence by the accused. charge is not to be automatically framed against the accused because the police officer referred to under section 173 considered it appropriate to institute the case. the object to frame charge is to be on the ground that there appears some material against the accused. at the stage of charge ultimate result is not very material. a suspicion having some foundation to link an accused with the alleged crime is sufficient for framing charge.6. sections 228 and 240 of the code of criminal procedure, 1973 (in short, the 'code') deal with framing of charge. while section 228 relates to framing of change in respect of offences triable by court of session, section 240 deals with framing of charge in respect of offences triable by magistrate in warrant cases. the opening words of sub sec. (1) in both sections 228 and 240 that there is ground for presuming that the accused has committed an offence, make it clear that framing of charge is not a mere formality, but a judicial act, to be performed after applying judicial mind to the consideration whether there is any ground for presuming the commission of the offence of the accused. the concerned court cannot blindly accent opinion of the prosecution that the accused be asked to face a trial. before forming opinion as to the presumption referred to in section 228(1) or section 240), the judge or the magistrate, as the case may be, is required to consider the records of the case, i.e. all the materials collected by the prosecution and also hear the submissions of the prosecution and the accused on the relevant aspects. before framing a charge, he should be satisfied that there are materials on record on the basis of which it can reasonably be concluded that the accused is in any manner connected with the incident leading to the prosecution (see state of karnataka v. muniswamy : air 1977 sc 1489). in state of bihar v. ramesh singh : air 1977 sc 2018, it was observed by the apex court that if the evidence which the prose- cutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. for the purpose of determining whether there is sufficient ground for proceeding against an accused, the court possesses comparatively wide discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which it can reasonably be said that the accused had some link with the alleged offence. it has, however, to be remembers 1 that at the stage framing charge the prosecution has not yet commenced. the truth, velacity and effect of the evidence which the investigating police officer has gathered and which the prosecutor proposes to adduce are not to be meticulously judged. the standard of test, proof and judgment which is to be applied final)' before finding the accused guilty or otherwise, is not exactly to be applied at the stage of section 227 or 228 and section 239 or 240 of the code. at that stage even a very strong suspicion founded upon materials before the magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge. (see the superintendent and remembrancer of legal affairs, west begal v. anil kumar bhunja and ors. ; air 1980 sc 52). if on consideration of the materials it can be said that the accused has been reasonably connected with the offence, and on the basis of said materials there is a reasonable probability or chance of the accused being found guilty of the offence alleged, then framing of charge cannot be interdicted. there must be an intelligent participation by the court and due care must be exercised by it while framing the charge or examining the accused persons as these are not matters of empty formality. a presiding officer of the court is not to merely act as a disinterested auditor of the contest between the prosecution and the defence and should come to a clear under- standing of the actual events that occurred and ensure that proper and necessary steps have been taken to arrive at the truth, (see maheshwar gouda v. state: 1983 crlj 1029). at the time of framing chage, it is not necessary for the prosecution to establish beyond all reasonable doubts that the accusation which they are bringing against the accused person is bound to be brought home against him. the purpose of sac;. 227 and 228 of the code is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceeding against him. the evidence has yet to be taken and the aspects which accused terms vulnerable can very well be clarified by evidence when the prosecution has its opportunity of placing the case through witnesses in court, it would be hazardous to act on the discrepancies unless they are so fatal and glaring as to affect the credibility of the prosecution case without affording reasonable opportunity to prosecution to substantiate the allegations. these aspects were highlighted by me in state bank of india, bolangir branch v. satyanarayan sarangi and anr. : (1993) 6 ocr 351. similar view was expressed by the apex court in eastern spinning mills and virendra kumar sharda v. rajiv poddar : air 1935 sc 1668, and state of bihar v. raj narain singh : air 1991 sc 1308.7. judged in that background, the order of the learned sdjm does not appear to be unreasonable. the revision application is devoid of any merit and is accordingly dismissed. i make it clear that i have not expressed any opinion about merits of the case, which is a matter for trial my observations and conclusions are solely on the question whether a case for discharge was made out.
Judgment:A. Pasayat, J.
1. Petitioner calls in question legality of order dated 19-6-1993 passed by learned Subdivisional Judicial Magistrate, Parlakhemundi refusing to accept petitioner's prayer for discharge, He did not accept the contention that there was no material to frame charge against him.
2. The allegations which necessitated the proceeding are to the effect that money was paid to a wrong person on the basis of identification made by the petitioner. One Sajani Bhuyan was to receive compensation on account of death of her husband Saka Sabara, arising out of an accident. Taka alias Thokat Sabara, son of deceased Saka Sobara was also to receive the amount of compensation. The amounts were to be paid by the Asst. Labour Commissioner, Berhampur. It transpired that on the basis of false identification money was paid to a wrong person. Cognizance was taken of offences punishable Under Sections 419, 420 read with Section 34, IPC. Process was issued to the petitioner and three others.
3. Petitioner's stand in essence is that on the basis of identification by one Ganju Gamango, a co-accused, who was Sarpanch of Serango Grama Panchayat, petitioner acted in good faith and made the identification of the person who received the amount. The learned SDJM on consideration of the application held that there was sufficient material to proceed against the petitioner. Accordingly prayer for discharge was rejected.
4. The learned counsel for petitioner has urged that the petitioner is a very reputed advocate of Parlakhemundi Bar and has acted in good faith and in the absence of mens rea he should have been discharged. It is also submitted that the complainant's stand before the Commissioner for Workmen's Compensation cum-Assistant Labour Commissioner was different from what was has been stated in the case (G.R. Case No. 321 of 1989 in the Court of SDJM, Parlakhemundi). The learned counsel for the complainant (opp. party No. 2 herein) has submitted that the statement alleged to have been given before the Commissioner is not part of the record and in any event whether the petitioner had any guilt intent or not is a matter for trial and at this juncture there is no scope tor discharge of the petitioner.
5. A Judge frames charge if after considering the records of the case and the documents and on hearing the arguments of both sides, he thinks that there is ground for presuming that the accused has committed an offence. The purpose of framing charge is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and there is some material for proceeding against him. A strong suspicion is sufficient to name charge. Possibility of acquittal or conviction is not the test At the initial stage the truth, veracity and effect of evidence are not to be meticulously judged and the standard of test, proof and judgment for finding the accused guilty or otherwise, is not to be applied. The conditions for the framing of a charge are (i) presumption of the commission of an offence on the materials before the Court; and (ii) charge is framed when the Court is of opinion that there is some evidence to support the accusation. The Judge has to apply his judicial mind on the materials on record for consideration whether there is ground to believe about commission of the offence by the accused. Charge is not to be automatically framed against the accused because the Police Officer referred to Under Section 173 considered it appropriate to institute the case. The object to frame charge is to be on the ground that there appears some material against the accused. At the stage of charge ultimate result is not very material. A suspicion having some foundation to link an accused with the alleged crime is sufficient for framing charge.
6. Sections 228 and 240 of the Code of Criminal Procedure, 1973 (in short, the 'Code') deal with framing of charge. While Section 228 relates to framing of change in respect of offences triable by Court of Session, Section 240 deals with framing of charge in respect of offences triable by Magistrate in warrant cases. The opening words of Sub sec. (1) in both Sections 228 and 240 that there is ground for presuming that the accused has committed an offence, make it clear that framing of charge is not a mere formality, but a judicial act, to be performed after applying judicial mind to the consideration whether there is any ground for presuming the commission of the offence of the accused. The concerned Court cannot blindly accent opinion of the prosecution that the accused be asked to face a trial. Before forming opinion as to the presumption referred to in Section 228(1) or Section 240), the Judge or the Magistrate, as the case may be, is required to consider the records of the case, i.e. all the materials collected by the prosecution and also hear the submissions of the prosecution and the accused on the relevant aspects. Before framing a charge, he should be satisfied that there are materials on record on the basis of which it can reasonably be concluded that the accused is in any manner connected with the incident leading to the prosecution (See State of Karnataka v. Muniswamy : AIR 1977 SC 1489). In State of Bihar v. Ramesh Singh : AIR 1977 SC 2018, it was observed by the apex Court that if the evidence which the prose- cutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. For the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses comparatively wide discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which it can reasonably be said that the accused had some link with the alleged offence. It has, however, to be remembers 1 that at the stage framing charge the prosecution has not yet commenced. The truth, velacity and effect of the evidence which the Investigating Police Officer has gathered and which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied final)' before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 and Section 239 or 240 of the Code. At that stage even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge. (See the Superintendent and Remembrancer of Legal Affairs, West Begal v. Anil Kumar Bhunja and Ors. ; AIR 1980 SC 52). If on consideration of the materials it can be said that the accused has been reasonably connected with the offence, and on the basis of said materials there is a reasonable probability or chance of the accused being found guilty of the offence alleged, then framing of charge cannot be interdicted. There must be an intelligent participation by the Court and due care must be exercised by it while framing the charge or examining the accused persons as these are not matters of empty formality. A Presiding Officer of the Court is not to merely act as a disinterested auditor of the contest between the prosecution and the defence and should come to a clear under- standing of the actual events that occurred and ensure that proper and necessary steps have been taken to arrive at the truth, (See Maheshwar Gouda v. State: 1983 CrLJ 1029). At the time of framing chage, it is not necessary for the prosecution to establish beyond all reasonable doubts that the accusation which they are bringing against the accused person is bound to be brought home against him. The purpose of Sac;. 227 and 228 of the Code is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceeding against him. The evidence has yet to be taken and the aspects which accused terms vulnerable can very well be clarified by evidence when the prosecution has its opportunity of placing the case through witnesses in Court, it would be hazardous to act on the discrepancies unless they are so fatal and glaring as to affect the credibility of the prosecution case without affording reasonable opportunity to prosecution to substantiate the allegations. These aspects were highlighted by me in State Bank of India, Bolangir Branch v. Satyanarayan Sarangi and Anr. : (1993) 6 OCR 351. Similar view was expressed by the apex Court in Eastern Spinning Mills and Virendra Kumar Sharda v. Rajiv Poddar : AIR 1935 SC 1668, and State of Bihar v. Raj Narain Singh : AIR 1991 SC 1308.
7. Judged in that background, the order of the learned SDJM does not appear to be unreasonable. The revision application is devoid of any merit and is accordingly dismissed. I make it clear that I have not expressed any opinion about merits of the case, which is a matter for trial My observations and conclusions are solely on the question whether a case for discharge was made out.