Case: R.S. Mishra Vs. State of Orissa &amp; Others

2. The facts leading to this appeal are as follows:Appellant not framing the charge under Section 302 IPC, when warranted.The appellant joined the Orissa judicial service in November 1971. In August 1991, he was promoted to the cadre of District Judges. During the period of his service, the appellant was transferred from place to place, and at the relevant time in March 1996, was posted as the Additional District and Sessions Judge, Rourkela, when the above referred case bearing S.T. No. 187/55 of 1995 was assigned to him.3. The case of the prosecution in that session case was as follows. There was a land dispute between one Megha Tirkey (the accused) and one Samara Tirkey, who was alleged to have been murdered by the accused. Jayaram Tirkey is the younger brother of accused. On 25.06.1995, at about 11:00 a.m., Samara Tirkey (the deceased) is said to have abused Smt. Mangi the wife of Jayaram Tirkey (PW-1) on account of the alleged encroachment of Samaras land by the uncle of Jayaram, one Shri Daharu Kujur. On the next day, i.e. on 26.6.1995, Jayaram Tirkey alongwith his brother Megha Tirkey, the accused went to the house of Samara Tirkey, the deceased. Initially, Samara Tirkey was not available and Jayaram and Megha Tirkey enquired about his whereabouts with his wife Hauri (PW-3). In the meanwhile, Samara Tirkey reached over there. Jayaram Tirkey asked Samara as to why he had scolded Jayarams wife in his absence. Samara Tirkey is said to have raised his hand towards Jayaram when accused Megha Tirkey dealt a lathi blow on the head of Samara Tirkey whereby he fell down. Thereafter, the accused Megha Tirkey gave two more lathi blows on his chest. When Hauri caught hold of the accused, he gave a lathi blow to her also and she received a lacerated wound on her forehead. Samara Tirkey was taken to the Raurkela Govt. Hospital, where he died on 27.6.1995 at about 2:00 p.m.4. Megha Tirkey was charged under Section 302 and 323 IPC. The matter reached before the appellant on 21.03.1996 when he passed the following order:-Order No.8 dt. 21.03.1996The accused is produced in custody by the escortAssociate Lawyer who represents the State is present.Learned Defence counsel is also present.Learned Associate Lawyer opens the prosecution case by describing the charges brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The learned Defence counsel submits that there is complete absence of evidence to frame charge u/s 302 IPC and that the available evidence may bring at-best an offence u/s 304 IPC.After hearing submissions of both sides in this behalf and on consideration of the materials available in the case diary, I find there is no sufficient material to frame charge u/s 302 IPC but there are sufficient materials against the accused for presuming that he has committed the offence u/s 304 IPC and 323 IPC.Hence, charge u/s 304 IPC and u/s 323 IPC are framed against the accused. The charges being read-over and explained, the accused pleads not guilty and claimed to be tried.The Defence does not admit the genuineness of the documents filed by the prosecution.Put up on 25.4.96 for fixing a date of hearing of the Sessions trial.Sd/-Addl. Sessions Judge,Rourkela,21.3.Subsequently, the appellant was transferred from Rourkela, and the matter proceeded before one Shri S.K. Mishra, the subsequent Additional Sessions Judge at Rourkela. It so happened that during the trial, some of the prosecution witnesses, viz. PW Nos. 2, 4, 5, 6, 7 were declared hostile by the prosecution since they did not support the case. The Judge, however, found the evidence of Hauri (PW No. 3) wife of Samara Tirkey, the deceased, as acceptable and reliable. Her testimony was supported by the medical evidence. The Doctor found a lacerated injury on her forehead. She stated that the accused had given a lathi blow on the head of the deceased and then on his chest, in her presence. She also stated about the lathi blow given to her. The post-mortem examination revealed that amongst other injuries, the left side mandible of the deceased was fractured and there was subdural haematoma over the left parietal region of the scalp. The other vital organs like lungs, liver, kidney were all congested. Due to these injuries, the deceased went into coma and then died. The learned Judge held that the prosecution had established the charges beyond reasonable doubt and found the accused guilty of offences under Section 304 and 323 of IPC, and convicted him accordingly. He sentenced him to undergo Rigorous Imprisonment for five years under Section 304 (1) of IPC and for one month for offence under Section 323 IPC, with both the punishments running concurrently.6. Note by the Inspecting JudgeIt so transpired that later the inspection of the Court of Additional & District Sessions Judge, Rourkela was carried out by Honble Mr. Justice P.K. Mishra, then a Senior Judge of the High Court of Orissa. At that stage, while going through the file of S.T. No.187/55 of 1995, Mr. Justice P.K. Mishra came across the above referred Order No.8 dated 21.3.1996 passed by the appellant herein. Thereupon Mr. Justice P.K. Mishra made the following note on thatthis case, the only accused Megha Tirkey was charge- sheeted under sections-302/323 IPC for clubbing the victim (Samra Tirkey) to death on 26.06.1995 at 3.30 P.M.The additional Sessions Judge, Rourkela while discharging the accused from the offence under Section - 302 framed charges under sections 304/323 of the Indian Penal Code without recording any reason for discharging the accused from the offence under Section 302 IPC. The order of the Additional Sessions Judge only states that material available in the case diary is insufficient to frame a charge under Section 302 IPC.It is the settled principle of law that while framing charge the Sessions Judge under Section -228 Cr.P.C. need not assign reasons, but he is bound to record reasons while recording a discharge under Section 227 Cr.P.C.In the present case, the widow of the deceased (P.W.3) has testified that the accused dealt a forceful lathi blow on the head of the deceased and two more blows on his chest. The post-mortem examination reveals that ramus of the left side mandible of the deceased was fractured on the chin besides left parietal region of the scalp.Relying on the ocular testimony of widow of the deceased and the post-mortem examination report that lends support to her evidence, the Additional Sessions Judge recorded a conviction under Section 304 (1)/323 of the Indian Penal Code and sentenced the accused to undergo R.I. for five years on the first count and one month R.I. on the second count with a direction for concurrent running of sentences.It is no bodys case that the offence was committed on grave and sudden provocation. The Addl. Sessions Judge should not have nipped the case U/s 302 IPC at the bud by discharging the accused thereof by a non speaking order. This is a fit case for suo-moto revision U/s 401 Cr.P.C.Suo-moto Criminal RevisionIn view of the note of Honble Justice Mr. P.K. Mishra, the High Court took up a suo-moto Criminal Revision against the order dated 21.3.1996, which was numbered as No.187/55 of 1995. The learned Single Judge, who heard the matter, went through the judgment rendered at the end of the trial in Case No.187/55 of 1995, as well as the order of framing charge dated 21.3.1996. He examined the material on record and noted that P.W. No. 3 had come to the rescue of her husband when he received lathi blows. She had also received a lathi blow. Her evidence was, therefore, a credible evidence. He referred to the post-mortem report which stated that out of the four external injuries, injury No. 4, i.e., fracture of ramus of left side mandible, was grievous. On dissection, it had been found by the Doctor that the brain membrane was congested. There was a subdural haematoma over the left parietal lobe and brain was congested. The other vital internal organs like lungs, liver, spleen, kidney were all congested. The Doctor (P.W. No.8) opined that death was due to coma resulting from injury to brain and scalp bones and the injuries were ante-mortem in nature. On this factual aspect, the learned Single Judge held as follows:the materials in the case diary reveal two distinct offences of the same nature then it is appropriate to frame charge for more grievous offence or to frame charge for both the offences distinctly and separately. That being the settled position of law and the prosecution case stands in the manner indicated above, therefore, there is no hesitation to record a finding that learned Additional Sessions Judge, Rourkela went wrong in framing charge for the offence under Section 304, IPC by declining to frame charge under Section 302 IPC for no reason explained in the order passed under Section 228 Cr.P.C.Impugned observation by the Single JudgeThe learned Single Judge, however, noted that by the time he was deciding the Criminal Revision, the accused had already served the sentence of five years of Rigorous Imprisonment. Therefore, he did not deem it to be a fit case for ordering a retrial under Section 300 (2) of Code of Criminal procedure, 1973 (`Cr.P.C. for short). He disposed of the suo-moto Criminal Revision accordingly by his order dated 28.10.2002.9. The learned Single Judge, however, made certain observations in para 5 of his order which are material for our purpose. This para reads as follows:A Judicial Officer before being posted as Addl. Sessions Judge gets the experience of conducting sessions cases as Assistant Sessions Judge. Therefore, in this case, it cannot be said that the concerned Presiding Officer had no requisite experience to deal with a matter relating to consideration of charge and to pass appropriate legal order under Sections 227 and 228 Cr. P.C correctly. When the accused was not charged for the offence under Section 302, IPC and instead he was charged for the offence u/s 304 IPC, it was incumbent on the trial court to explain the circumstances and to reflect the same in the order as to what was the reason or lack of evidence not to frame charge for the offence under Section 302 IPC. This Court finds no reasonable excuse for the concerned Presiding Officer to commit a blunder in the above indicated manner....... If the said Judicial officer has not yet been confirmed in the cadre of O.S.J.S (S.B.), then before confirming him in that cadre his performance be thoroughly verified and in the event of finding glaring deficiency in his performance, as in this case, then he may be kept on probation for a further period as would be deemed just and proper by the High court. If he has already been confirmed in that cadre, then his performance be thoroughly verified before giving him promotion to the higherin first part of this para, the learned Judge has held that the appellant had committed a blunder in not framing the charge under Section 302 IPC. In the latter part of the para, he has made certain observations about the manner in which the appellant had passed the order dated 21.3.1996, and also some correctional suggestions about the appellant.10. Subsequent to these observations in this order dated 28.10.2002, the High Court Administration examined the record of the appellant and denied him the Selection grade. The appellants representation dated 24.09.2003 in that behalf was also rejected by the High Court Administration as per the communication dated 20.11.2003 to the appellant from the Special Officer (Administration). Being aggrieved therewith the appellant took Voluntary Retirement on 30.11.2003, and subsequently filed the present Appeal by special leave on 13.02.2004 to challenge the above order dated 28.10.2002 and the observations made therein.

Reasoning:
20. The observations of this Court in the case of State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018 ] / [1977 (4) SCC 39 ] are very apt in this behalf. A bench of two Judges of this Court has observed in that matter that at the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Court referred to the judgment of a bench of three Judges in Nirmaljit Singh Hoon Vs. State of West Bengal [1973 (3) SCC 753 ], which in turn referred to an earlier judgment of a bench of four Judges in Chandra Deo Singh Vs. Prokash Chandra Bose [AIR 1963 SC 1430 ], and observed as follows in para 5:-"5. In Nirmaljit Singh Hoon v. State of West Bengal - Shelat, J. delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose - where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied)Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge.21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned.22. In the instant casea young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute theobservation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter ofis only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years