Kishore Kumar Sarwa vs Smt. Bhineshwari Sahu and Another

T.P. Sharma, J.—By this petition u/s 482 of the CrPC, the petitioner has challenged legality & propriety of the order dated 30.10.2010 passed by the Additional Sessions Judge (FTC), Balod in Criminal Revision No.4/ 2010 affirming the order framing charge dated 17.12.2009 passed by the Judicial Magistrate First Class, Dallirajhara in Criminal Case No.541/2009, whereby learned-Judicial Magistrate First Class has passed the order framing charge for the offence punishable u/s 494 of the IPC, against the petitioner.

I have heard learned counsel for the petitioner and learned Panel Lawyer for the State/ respondent No.2 on admission.

Respondent No. 1 is not noticed. In the light of order impugned and order of the trial Court, I do not find necessary for issuance of notice to respondent No. 1.

Learned counsel for the petitioner submits that the trial Court has framed charge against the petitioner for the offence punishable u/s 494 of the IPC after considering the evidence adduced on behalf of respondent No. 1 before charge, u/s 244 of the CrPC. The trial Court has not framed charge in terms of Section 240 of the CrPC on the basis of prima facie material sufficient for framing charge, but has framed charge in accordance with Section 245(1) of the CrPC. Learned counsel further submits that at the time of framing charge after taking evidence before charge the Court is under obligation to examine the evidence and prima facie opine that if the evidence adduced on behalf of the complainant is unrebutted, same would be sufficient for conviction of the accused. The complainant is required to adduce evidence of the quality sufficient for conviction of the accused, if same is not unrebutted, However, while framing charge the trial Court has not considered the quality of evidence and has specifically mentioned in the order that evidence prima facie shows that the petitioner has committed offence u/s 494 of the IPC and has also arrived at finding that right to adduce evidence of the complainant has not been closed.

On the other hand, learned State Counsel opposed the petition.

As per orders of both the Courts below, the trial Court has framed charge against the petitioner in terms of Section 245 of the CrPC which reads thus:

When accused shall be discharged--

(1) If, upon taking all the evidence referred to in Section 244, the: Magistrate considers for reasons, to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

At the time of framing charge in accordance with Section 245 of the CrPC, the Magistrate is required to consider the evidence adduced on behalf of the complainant and its quality that if same is unrebutted, it would be sufficient for warranting conviction of the accused. Order of the trial Court reveals that the trial Court has not considered the evidence of witnesses of the complainant in the light of aforesaid touchstone of law and thereby committed illegality.

Consequently, the petition is allowed. Orders of both the Courts below are hereby set aside. The petitioner shall present before the trial Court on 10th March, 2011 and the trial Court shall after providing sufficient opportunity of hearing/further adducing evidence before charge and providing opportunity of hearing to the parties in accordance with Section 245(1) of the CrPC, pass order framing charge or order of discharge of the petitioner/accused.

I.A.No.1 stands disposed of.