Writ petition challenging a sub-divisional judge's order framing a charge under the Juvenile Justice Act, 2015, without affording the accused an opportunity to move for discharge before the accused received the police papers.
The impugned order framing the charge is set aside; petitioner directed to move for discharge within a week.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 582 of 2023
Andrew R. Cobb …. Petitioner
Dr. B.K. Mishra, Advocate
-Versus -
State of Odisha and another Opposite Parties
….
Mr. S.K. Mishra Additional Standing Counsel
CORAM: JUSTICE SASHIKANTA MISHRA
ORDER_
17.03.2023
Order No.
02.
Page 1 of 3
petitioner-accused for his appearance. On 13.07.2022 on an advance petition being filed on behalf of the petitioner accused, he was released on bail and on the same day by a later order, the police papers were directed to be supplied to the accused. Again on the same day, hearing on the point of charge was taken up. It is submitted that no opportunity whatsoever was granted to the accused person to seek discharge from the case.
“239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. The petitioner is an accused in C.T. Case No.06/03 of 2018 pending in the Court of learned C.J.M.-cum-Khurda, Circuit at Bhubaneswar. He was released on bail.”
Page 2 of 3
or not is at a stage antecedent to the stage of framing charge. In other words, it is at that stage that an accused can move for discharge. In the instant case, there is nothing in the impugned order to show that the Magistrate had considered the police report and found the charge against the accused to be groundless so as to proceed to the next stage. It was incumbent upon the court below to have granted at least an opportunity to the accused to seek discharge from the case. Moreover, by framing charge on the same day on which police papers were supplied to the accused, the court below appears to have foreclosed his right to seek discharge from the case. As such, the impugned order becomes unsustainable in the eye of law.
( Sashikanta Mishra) Judge
B.C. Tudu
Page 3 of 3
3 issues framed by the court
Whether the petitioner was afforded an opportunity to move for discharge before the charge was framed.
Was the right to seek discharge foreclosed by framing the charge on the same day the police papers were supplied to the accused?
Whether the impugned order framing the charge is unsustainable as it bypassed the statutory discretion to discharge under Section 239 Cr.P.C.
3 provisions across 1 enactments
Andrew R. Cobb
State of Odisha
Sashikanta Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
