Allowed

Tankadhar Mishra v. Republic of India

Orissa HC23 Sept 2016CRLREV/9/2012

Case brief

AI extract

What is this about?

The petition challenging a charge framed in absentia was allowed. The Court held that Cr.P.C. 240(2) is mandatory, requiring the charge to be read and explained to the accused. Concession of counsel cannot override this. Impugned order set aside.

What did the court decide?

Impugned order dated 16.12.2011 set aside. Special Judge directed to consider discharge petition giving opportunity to respondent.

Tankadhar Mishra Vs Republic of India — Corruption | Orissa HC (2016)

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CRLREV No.9 of 2012

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Tankadhar Mishra -Vrs.-

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Republic of India

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23.09.2016 The petitioner Tankadhar Mishra has challenged the order dated 16.12.2011 of the learned Special Judge, (CBI), Bhubaneswar passed in T.R. Case No. 39 of 2010 in framing charge under sections 120-B/420/471 of the Indian Penal Code & Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

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It appears from the impugned order that on the date of framing of charge, the counsel appearing for the petitioner filed a memo stating therein that the petitioner has got no objection if the charge is framed against him in his absence and accordingly, learned Special Judge after going through the materials available on record was of the view that there are sufficient materials to presume that the petitioner and other co-accused persons have committed the offence under sections under sections 120-B/420/471 of the Indian Penal Code & Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

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Learned counsel for the petitioner Mr. Prafulla Kumar Rath files an additional affidavit annexing a copy of discharge petition in Court today which is taken on record. It is the sole contention of the learned counsel for the petitioner that in view of Section 5 of the Prevention of the Corruption Act, 1988, a Special Judge is required to follow

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the procedure prescribed under the Cr.P.C. for trial of warrant cases by the Magistrates. He further contends that Chapter XIX of the Cr.P.C. deals with trial of warrant cases by Magistrates and while framing charge, it is the requirement of law that charge should 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.

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Learned counsel for the petitioner further contends that the accused was not present on the date of framing of charge and only on the concession of the his counsel, the charge should not have been framed and particularly when 240(2) of the Cr.P.C. is a mandatory provision which has not been complied with, therefore, the framing of charge is defective and cannot be sustained in the eye of law. Learned counsel for the petitioner further submits that the petitioner has stated in detail in the discharge petition as to how the offences are not made out against him and if the discharge petition is considered in its proper perspective, the petitioner shall get an opportunity before the learned Trial Court to submit as to why he should be discharged.

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Section 240 of the Cr.P.C. reads as follows:

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“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 tray and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

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(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.

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In view of the language of the 240(2) Cr.P.C., it appears that the same is mandatory and in the present 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. Therefore, I am of the view that framing of charge against the petitioner in his absence has defeated the very purpose of sub-section (2) of Section 240 Cr.P.C. Accordingly, the impugned order dated 16.12.2011 is set aside.

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Learned Special Judge, C.B.I., Bhubaneswar shall consider the discharge petition which has been filed by the accused on 25.08.2016 giving due opportunity to the Republic of India to have its say on such petition and thereafter, the learned Special Judge, CBI, Bhubaneswar is at liberty to proceed in accordance with law.

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It is made clear that, this Court has not expressed any opinion on the merits of the framing of the charge. The learned Trial Court is free to consider all the points which would be raised by the respective parties at the time of consideration of the discharge petition if the same is legally permissible. The entire exercise of passing final order on the discharge petition should be completed by the end of October, 2016.

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Accordingly, the CRLREV petition is disposed

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of.

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………………… S.K.Sahoo,J.

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30.09.2011

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Misc. Case No.2143 of 2011

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In view of the order passed today in CRLMC No.3252 of 2011, this Misc. Case is also disposed of.

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...…………………….

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I. Mahanty,J.

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21.09.2011

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Misc. Case No.1772 of 2011

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In view of the order passed today in CRLMC No.2725 of 2011, this Misc. Case is also disposed of.

...…………………….

I. Mahanty,J.

The N.B.W. issued against the petitioner shall not be executed for a period of three weeks from today.

Tankadhar Mishra v. Republic of India

Case brief

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Tankadhar Mishra v. Republic of India

Case brief

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