Allowed

Suratan@ Surtan Bibi v. State of Orissa

Orissa HC17 Aug 2016CRLMC/2241/2003

Case brief

AI extract

What is this about?

The High Court set aside the commitment of a cognizable offence to the Court of Session, finding no evidence linking the assault to the death of the deceased as death occurred at a different hospital not mentioned in the medical report.

What did the court decide?

The Criminal Misc. Appeal was allowed, the commitment order set aside, and respondents directed to return the case record to the Trial Court.

Suratan@ Surtan Bibi Vs State of Orissa — Criminal Trial and Appeal | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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CRLMC NO. 2241 OF 2003

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An application under section 482 of the Code of Criminal Procedure, 1973 in connection with G.R. Case No.570 of 1995 pending on the file of J.M.F.C., Nayagarh.

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Suratan @ Surtan Bibi

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and others ………	Petitioners
-Versus-
State of Orissa ………	Opposite party
For Petitioners: -	Mr. Sangram Ku. Das
For Opposite Party: -	Mr. Dillip Kumar Mishra
	Addl. Govt. Advocate.

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P R E S E N T:-

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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---------------------------------------------------------------------------------Date of Hearing & Judgment:- 17.08.2016 ----------------------------------------------------------------------------------

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S. K. SAHOO, J . The petitioners have preferred this application under

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section 482 of the Cr.P.C. challenging the impugned order dated 28.08.2002 passed by the learned J.M.F.C., Nayagarh in G.R. Case No. 570 of 1995 in invoking its power under section 323 of the Cr.P.C. and finding prima facie evidence for commission of offence under section 302 of the Indian Penal Code against the petitioners which is exclusively triable by the Court of Session

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directed appearance of all the petitioners in person and posted the case for commitment. The petitioners challenged the aforesaid order dated 28.08.2002 before the learned Addl. Sessions Judge, Nayagarh in Criminal Revision No. 22 of 2002 and the learned Revisional Court vide impugned judgment and order dated 26.08.2003 has been pleased to dismiss the revision petition.

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The prosecution case, as per the First Information Report dated 25.11.1995 lodged by one Bhikari Sahoo (hereafter “the deceased”) before the Inspector in charge, Nayagarh Police Station is that on that day at about 7 a.m. while he was selling tiffin items on the outskirts of Harijan Sahi, the petitioners surrounded him being armed with lathis and assaulted him for which he fell down on the ground. The petitioner no.1 Suratan Bibi twisted the scrotum of the deceased for which there was bleeding and the deceased was shifted to Nayagarh Hospital in a rickshaw but on the way to the hospital, the petitioners nos. 2 and 3 namely Kalia and Dauli obstructed him and slapped him and threatened him not to proceed to the Police Station or else he would face dire consequence. It is further stated the First Information Report that the deceased was under treatment at Nayagarh Hospital and there was swelling on the scrotum and his head was reeling.

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On the basis of such F.I.R., Nayagarh P.S. Case No.

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314 of 2015 was registered under sections 341, 323, 325, 506 read with section 34 of the Indian Penal Code. During course of investigation, the deceased was examined by the I.O. at District Headquarters Hospital, Nayagarh and the doctor noticed an abrasion of size ½” x ¼” on the right dorsal aspect of right scrotum and one contusion of size ½”x ¼” on the right mastoid process and both the injuries were opined to be simple in nature. The investigating officer visited the spot and examined the witnesses, collected the medical report from the concerned hospital and finding prima facie material against the petitioners for commission of offences under sections 323, 341, 506 and 34 of the Indian Penal Code, submitted charge sheet on 22.02.1996.

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On receipt of the charge sheet, the learned S.D.J.M., Nayagarh took cognizance of the offences under sections 323, 341, 506 and 34 of the Indian Penal Code and then the particulars of the offences under sections 323/341/506/34 of the Indian Penal Code were read over and explained to the petitioners on 08.09.2000 and they pleaded not guilty.

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During course of trial, from the side of the prosecution, six witnesses were examined and three documents were marked as exhibits. The deceased who was the informant

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in the case could not be examined on account of his death. The accused statements of the petitioners were also recorded on 06.08.2002 and the argument was heard on subsequent date and the case was posted to 23.08.2002 for judgment. On that day again the case was adjourned to 28.08.2002 for delivery of the judgment and on 28.08.2002, the impugned order was passed by the learned J.M.F.C., Nayagarh.

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Mr. Sangram Kumar Das, learned counsel for the petitioners contended that the impugned order dated 28.08.2002 passed by the learned J.M.F.C., Nayagarh so also the judgment of the Revisional Court passed by the learned Addl. Sessions Judge, Nayagarh are totally illegal and suffers from nonapplication of mind and there was absolutely no material available on record before the learned Trial Court to come to a finding that prima facie evidence for commission of offence under section 302 of the Indian Penal Code is made out against the petitioners and therefore, the learned Magistrate should not have invoked his power under section 323 of Cr.P.C. and posted the case for commitment to the Court of Session. The learned counsel for the petitioners further urged that though P.Ws.2 and 3 have stated that after the occurrence, the deceased was first taken to Nayagarh Hospital and then referred to S.C.B. Medical College and Hospital, Cuttack for treatment where he succumbed

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to death but neither the doctor (P.W.5) who examined the deceased at Nayagarh Hospital has stated that he referred the deceased to any other hospital nor there is any medical paper to show that the deceased was ever under treatment at S.C.B. Medical College and Hospital and therefore, in absence of any material on record to show that the assault stated to have been made by the petitioners had got any proximate link with the death of the deceased afterwards, the observation of the learned Magistrate was not proper and justified. Learned counsel for the petitioners placed the evidence of P.Ws. 2 and 3 so also the doctor (P.W.5) who treated the deceased at Nayagarh Hospital.

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Mr. Dillip Kumar Mishra, learned Addl. Government Advocate for the State on the other hand supported the impugned order and the judgment passed by the Courts below.

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Section 323 of the Cr.P.C. reads as follows:-

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“ Procedure when, after commencement of

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inquiry or trial, Magistrate finds case should be committed .- If, in any inquiry into an offence or a trial before the Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and

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thereupon the provisions of chapter XVIII shall apply to the commitment so made.”

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To invoke power under section 323 of Cr.P.C., it should appear to the Magistrate in any inquiry into an offence or a trial before him that the case is one which ought to be tried by the Court of Session. “ Ought” is an auxiliary verb which is used to express duty or moral obligation. The section further indicates that such an order can be passed “at any stage” of any inquiry or trial but prior to signing of judgment. Therefore, if the Magistrate having jurisdiction finds prima facie material that the case is one which is required to be tried by the Court of Session then he is dutybound to pass an order in that respect. Therefore, there is no dearth of power with the Magistrate to pass an order of commitment in a case under inquiry or trial which was originally a non-sessions triable one but it should be exercised only after being satisfied that the case is one which ought to be tried by the Court of Session . The provisions of section 323 of the Code are in addition to the provision of Section 209 of the Code. Section 209 of the Code lays down that when an offence is exclusively triable by a Court of Session i.e. when it appears from the provisions of the schedule to the Code that the offence is triable exclusively by a Court of Session, the Magistrate shall commit the case to the Court of Session. The order of

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commitment contemplated under Section 209 of the Code is a routine mechanical order passed in conformity with the provisions of the schedule to the Code whereas the order contemplated under section 323 of the Code is an exclusive order which requires close consideration by the Magistrate of the offence. There is basic difference between “appears to the Magistrate that the offence is triable exclusively by the Court of Session” as appears in section 209 Cr.P.C. and “appears to the Magistrate that the case is one which ought to be tried by the Court of Session” as appears in section 323 Cr.P.C.

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On perusal of the LCR which contains the case diary, it appears that the investigation of the case started on 25.11.1995 with the lodging of F.I.R. and the investigating officer examined number of witnesses including the informant and after completion of investigation, charge sheet was placed under sections 323/341/506/34 of the Indian Penal Code on 22.02.1996 against the petitioners after obtaining the medical opinion. There is no whisper anywhere in the case diary that the informant-deceased was referred to the S.C.B. Medical College and Hospital, Cuttack for treatment or he was treated there. Even though the witnesses P.W.2 and P.W.3 have stated during trial for the first time about five years after the occurrence that the deceased died at S.C.B. Medical College and Hospital,

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Cuttack out of the injury caused at the spot but in absence of any medical document to that effect, either relating to his treatment or death at S.C.B. Medical College and Hospital, Cuttack particularly when the doctor of Nayagarh Hospital has found only two simple injuries and has not stated that he referred the informant-deceased to the S.C.B. Medical College and Hospital, Cuttack and in absence of any evidence as to when such death took place, it is very difficult to hold that prima facie material is available on record to show that the death of the deceased which had taken place after submission of charge sheet has got any proximate link with the occurrence.

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Culpable homicide is murder, if the act by which the death is caused falls under any of the four clauses as enumerated under section 300 of the Indian Penal Code. Five exceptions have been carved out under section 300 of the Indian Penal Code which deals with the situation when culpable homicide is not murder. If it is a case of culpable homicide not amounting to murder then it is punishable either under section 304 Part I or Part II of the Indian Penal Code.

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In absence of any other material, it appears that the learned J.M.F.C., Nayagarh was not justified in holding that on verification of the case record, there was prima facie evidence for the offence under section 302 of the Indian Penal Code

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against the accused persons. Similarly the Revisional Court though has taken note of the evidence of P.Ws. 2 and 3 as well as the doctor but illegally confirmed the order passed by the learned Magistrate.

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Though the petitioners have already approached the Revisional Court against the order of the Magistrate and they have challenged the orders passed by the Courts below in this application under section 482 Cr.P.C. but law is well settled that if an exceptional case is made out, the High Court has got inherent power under section 482 Cr.P.C. to entertain such a petition and to pass an appropriate order in the interest of justice and to prevent abuse of the process. The petition cannot be thrown out on the ground that it is under the garb of second revision petition in view of the bar under sub-section (3) of section 397 Cr.P.C.

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On going through the materials available on record, the oral evidence as well as the medical evidence led by the prosecution, I am of the view that there is no evidence that the petitioners have committed culpable homicide amounting to murder or culpable homicide not amounting to murder and therefore, the impugned order dated 28.08.2002 passed by the learned J.M.F.C., Nayagarh which was confirmed by the Addl. Sessions Judge, Nayagarh vide judgment and order dated

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26.08.2003 in Criminal Revision No. 22 of 2002 are not sustainable in the eye of law and accordingly, the same is hereby set aside.

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The petitioners are directed to appear before the learned J.M.F.C., Nayagarh in G.R. Case No. 570 of 1995 on 06.09.2016. On that day, the learned Magistrate shall fix another date for argument of the case and after argument; the learned Magistrate shall pass the judgment. Any observation made in this order to adjudicate the issue involved shall not influence the learned Magistrate in any manner while delivering the judgment.

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Accordingly, the CRLMC is allowed.

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The LCR be returned back to the learned Trial Court

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immediately.

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Orissa High Court, Cuttack The 17^th August, 2016/Sukanta

Suratan@ Surtan Bibi v. State of Orissa

Case brief

What is this about?

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Suratan@ Surtan Bibi v. State of Orissa

Case brief

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