Allowed

Harihar Panda v. State of Odisha

Orissa HC22 Dec 2021CRLMC/829/2020

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a curative petition under Section 482 Cr.P.C. and quashed criminal proceedings against a 72-year-old petitioner. The Court held that even accepting the FIR materials wholesale, the allegations failed to disclose essential ingredients for charges of house trespass, criminal force to deter a public servant, or criminal intimidation, constituting an abuse of court pro

What did the court decide?

The CRLMC allowed; entire criminal proceedings in G.R. Case No.196/2018 including impugned orders quashed.

Harihar Panda Vs State of Odisha — Criminal Trial and Appeal | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No.829 of 2020

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Harihar Panda

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…. Petitioner

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Mr. P.C.Chhinchani Advocate

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-versus-

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…. State of Odisha and another Opposite Parties Mr.S.K.Mishra, Addl. Standing Counsel CORAM: JUSTICE SASHIKANTA MISHRA ORDER 22.12.2021.

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Order No. 02. 1. This matter is taken up through hybrid mode.

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In this application filed under Section 482 of Cr.P.C., the Petitioner challenges the orders dated 25^th March, 2019 and 13^th September, 2019 passed by learned J.M.F.C., Rayagada in G.R. Case No.196/2018 whereby the petitions filed by him for discharge and for deletion/alteration of charge respectively were rejected.

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The brief facts of the case are that the Petitioner is an accused in the aforementioned case, which has arisen out of Rayagada P.S. Case No.84 dated 10^th May, 2018 for the alleged

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CRLMC No.829 of 2020

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commission of offences under Sections 448/294/506 of I.P.C. The said case was registered on the basis of an F.I.R. lodged on 10^th May, 2018 by one Debarchan Behera, the Divisional Forest Officer of Rayagada Division before Town P.S., Rayagada alleging therein that he had called the accused–Petitioner to his office and, accordingly, he came to his office at 11.30 A.M. to his Chamber while Range Officers were discussing official matters. On being asked about the contents of a letter that the Petitioner had written by the D.F.O., he suddenly became enraged and abused in unparliamentary language, throw away official files placed on the D.F.O’s table and also banged on his office table. It is also alleged that there was bitter exchange of words between the Petitioner and one P.K.Naik, In-charge Range Officer, K.Singpur Range during which the Petitioner abused in caste line and, thereafter, moved out of his office chamber and started scolding the DFO in unparliamentary language in presence of field and office staffs and also threatened to kill him. On the basis of such F.I.R., investigation was taken up and after completion of investigation, charge sheet was submitted against the Petitioner under Sections 448/294/332/353/506 I.P.C.

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On 11^th March, 2019, the Petitioner filed an application under Section 227 of Cr.P.C. with prayer to discharge him from the case on the ground that necessary ingredients to constitute the alleged offences were not made out. By order dated 25^th March, 2019, the learned court below rejected the application

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for discharge by holding that at that stage a roving inquiry cannot be made nor the pros and cons of the materials be weighed. It is was further held that on perusal of the case record prima facie material is well made out against the accused for the alleged offences. On the same day, by a later order, the learned court below framed charge under the aforementioned sections against the accused-Petitioner. Challenging such order, the Petitioner approached this Court in CRLMC No.2145/2019 wherein this Court passed the following order:-

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“There is no reproach that the Court can proceed against the accused, even if he has not been charge sheeted for any particular offences, but from the materials available on record, the ingredients of the said offences for which the accused is proceeded against, must be there on record. So also, for framing of the charge though the Court is not supposed to assign the reasons if it is found from the materials on record that there are sufficient grounds to presume the accused to have committed such offences. In this case, since the order of framing charge impugned does not reveal the same, I am in agreement with the contention raised by the learned counsel for the petitioner and, as such, dispose of this CRLMC at the stage of admission with a direction to the petitioner to move a petition under Section 216 of Cr.P.C. before the trial court for alternation/deletion of the charge, by filing a certified copy of this order, within four months hence and if such a petition is filed, the court concerned shall dispose of the same within a period of ten days of making of such motion by the petitioner, in its own merit.”

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CRLMC No.829 of 2020

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Pursuant to such order, the Petitioner filed an application under Section 216 of Cr.P.C. for deletion/alteration of the charge specifically on the ground that the ingredients necessary to constitute the alleged offences are nonexistent. Learned court below vide order dated 9^th January, 2020 rejected such petition by holding that the grounds taken by the accused, are grounds to be examined and put to test at the time of trial. Being aggrieved, the Petitioner has approached this Court in the present application.

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Heard Mr. P.C.Chhinchani, learned counsel for the Petitioner and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.

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Mr. Chhinchani has argued that unless the necessary ingredients of the offences in question are found to exist on the face of the record, it would be illegal for the court to frame charge for the said offence. Elaborating on his argument, Mr. Chhinchani has submitted that even if the F.I.R. story is accepted as correct on the whole, it would show that the accused was admittedly called by the informant to his official chamber and, therefore, the question of committing house trespass within the meaning of Section 442 punishable under Section 448 of I.P.C. does not arise. It is further argued that there is not even a whisper of allegation that the accused made any attempt to deter the informant from discharging his duty nor there is an allegation of causing hurt to do so. Therefore,

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the offence under Sections 332/353 I.P.C. are not attracted. That apart, except for the bald and omnibus statement that the Petitioner abused the informant in unparliamentary language without specifying the words so used and that he threatened to kill the informant, there is nothing on record to suggest commission of such offences and therefore, the offences under Sections 294/506 I.P.C. are also not attracted. On such basis and by relying upon the decisions of the Apex Court in the case of Sanjay Kumar Rai v. State of Uttar Pradesh and Anr.; reported in 2021(II) OLR (SC)-81 and of this Court in the case of Upali Surajita Dhal and another v. State of Orissa and another ; reported in (2006) 34 OCR-72 and Benudhar Sethi v. State of Orissa ; reported in (1990) 3 OCR-529, it is contended that the proceeding against the accused would amount to an abuse of the process of Court, more so as he is an aged person being 72 years old.

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Per contra, Mr. S.K.Mishra, learned Addl. Standing Counsel, argued that at the time of framing of charge, it is sufficient if the Court is able to form a presumption regarding the existence of ingredients constituting the offences found upon the materials placed before it and that it is not necessary for the Court to undertake an analysis of the credibility, veracity, or evidentiary value of the materials placed before it. In support of his contention, Mr. Mishra has relied upon the decision of the Apex Court in the case of Sajan Kumar v. Central Bureau of Investigation ; reported in (2010) 47 OCR-

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CRLMC No.829 of 2020

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650 and in the case of Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh and another ; reported in (2020) 780 OCR (SC)-113.

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Before adverting to the merits of the rival contentions, it would be apposite to refer to the relevant proposition of law regarding framing of charge and discharge. It is well settled that at the time of framing of charge, the court is not expected to make a roving inquiry or to weigh the evidence or examine the probative value of the materials placed before it by the prosecution, rather, the Court is to form a reasonable presumption regarding commission of the offences by the accused on the basis of prima facie materials on record.

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However, it is equally well settled that if on the uncontroverted materials placed by the prosecution no offence is made out, then it would not be legally permissible for the Court to frame charge against the accused.

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Examined in the light of the above mentioned legal propositions, the F.I.R. as lodged shows that the accused is said to have visited the informant in his official chamber not on his own but being called by the informant himself. There is also no allegation that after having entered thus into the Chamber, the accused remained forcibly or unlawfully despite being told to leave by the informant. There is also not a whisper of allegation that after having entered into the chamber, the accused deterred the informant from discharging his duties or applied force or

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CRLMC No.829 of 2020 Page 6 of 11

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caused hurt to the informant while doing so. It is stated in the F.l.R. that the accused abused him in unparliamentary language without specifying the words actually used by him. It is also stated that the accused threatened to kill the informant, but the same is in general terms.

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Coming to the ingredients necessary to constitute the above referred offences, it is seen that in order to sustain an offence punishable under Section 448 of I.P.C., the offence under Section 442 of I.P.C. must have been proved. Section 442 of I.P.C. reads as follows:

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“442. House trespass.-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”.

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Thus, to bring home a charge under this provision, it must be proved that the accused entered into the building used as human dwelling and having so entered lawfully, he remains there unlawfully with an intention to commit an offence or to intimidate, insult or annoy any person in possession of such property. In the instant case, the F.I.R. story is to the effect that the informant himself called the accused to his office with the purpose of discussing with him about the contents of a letter. Therefore, entry of the accused into the official chamber of the informant can by no stretch of imagination be held

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to be an act of trespass, much less house trespass as to come within the mischief of Section 448 of I.P.C.

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Coming to the offence under Section 353 of I.P.C., the same reads as follows:-

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“353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

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Thus from a bare reading of the provision quoted above, it would be evident that the necessary ingredients of the same are as follows:-

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“(1) The accused assaulted or used criminal force to a public servant against and such public servant was acting as discharge of his duty.

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(2)Accused assaulted with the intention of preventing or deter such public servant from discharging his duty, or

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(3) It was used in consequence of anything done or admitted to be done by the said public servant.”

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From the facts stated in the F.I.R., there is nothing to show that the accused deterred the informant, who admittedly was a public servant from discharging his duty. All that has been alleged is that being called to the official chamber he is said to have used unparliamentary language, threw some files and hit the table and left the chamber. Thus, there is no allegation that the informant was deterred from doing his duty because of any assault or criminal force being applied by the accused. Therefore, the offence under Section 353 is clearly not attracted.

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On the same facts and particularly there being absolutely no allegation that any hurt was caused by the accused to the informant, the offence under Section 332 of C.P.C. is also not attracted because causing voluntary hurt to deter the public servant from discharging his duty is sine qua non for attracting the offence.

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Coming to the offence under Section 294 of I.P.C., it is alleged in the F.I.R. that the accused abused the informant in “unparliamentary languages” but what were the exact words used by the accused is not forthcoming. It must be kept in mind that the informant was a highly placed Government servant and, therefore, cannot be expected to submit a complaint on general or vague terms. Similarly, at the end of the F.I.R. an allegation has been made that the accused threatened to kill the informant while he was leaving the office.

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This again appears to be a bald and somewhat omnibus allegation which, when compared to the other allegations, appears to be too general to be believed.

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Thus, even on the unconverted allegations made in the F.I.R., none of the offences as alleged are made out. In rejecting the petition for discharge filed by the accused, learned court below has referred to Section 161 Cr.P.C. statement of some witnesses, who have stated that the accused abused the informant by saying “SALA MAA GHIA”, but when the F.I.R. itself does not mention any such words, the so-called statement made in the Section 161 statement can only be treated as an improvement from the earliest version, that is the FIR and therefore, difficult to accept since the F.I.R. was lodged by an educated person occupying a high Government Office. Learned court below has, however, not considered whether the ingredients of the offences alleged are made out or not, which according to this Court is a manifest error. Similarly, in the petition filed for deletion/alternation of the charge under Section 216 of Cr.P.C., learned court below has held, somewhat mechanically, that since charge has already been framed, it is not open to the court to conclude that there is no ground for proceeding against the accused and that the grounds taken by him are to be examined and put to test at time of trial. This is also a wrong approach inasmuch as in the process, despite absence of the essential ingredients to constitute the

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alleged offences, the accused shall be made to endure the ignominy of a criminal trial.

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From a conspectus of the analysis made herein before, this Court has no hesitation in holding that even on a wholesale acceptance of the materials placed by the prosecution including the F.I.R., the ingredients of the alleged offences are nonexistent, for which continuance of the criminal trial against the accused, who incidentally is a person aged about 72 years, would certainly amount to an abuse of the process of the Court thereby warranting exercise of jurisdiction under Section 482

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of Cr.P.C.

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In the result, the CRLMC is allowed. The entire criminal proceedings in G.R. Case No.196/2019 including the impugned orders are hereby quashed.

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Urgent certified copy of this order be granted on proper application.

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A.K.Behera

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CRLMC No.829 of 2020

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Harihar Panda v. State of Odisha

Case brief

What is this about?

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Harihar Panda v. State of Odisha

Case brief

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