Pradeep Kumar Pradhan vs State of Orissa and Others

I. Mahanty, J.—This petition u/s 482, Cr.P.C. has been filed by one Pradeep Kumar Pradhan seeking to challenge the order of framing charge dated 18.04.2007 & the Order Dated 23.7.2007 passed by the Learned S.D.J.M., Bonai in G.R. Case No. 168 of 2005 rejecting the petition filed u/s 239, Cr.P.C. seeking discharge. Mr. A.R. Dash, Learned Counsel for the Petitioner asserts that on the date when the charge was framed, i.e. on 18.4.2007, a petition u/s 239, Cr.P.C. has been filed seeking discharge by the accused-Petitioner (copy of which is appended to this petition as Annexure-2). He further asserts that even though such petition was filed & kept pending for consideration, the same was not heard & disposed of on 18.4.2007, (i.e. on the date of framing of charge) but instead the Learned S.D.J.M. took up the petition for consideration on 23.7.2007 & in the said order, it is observed as follows:

But on the same day while framing charge after hearing of the both sides, this Court has held that there is sufficient materials in the record to believe that there is a prima facie case against the accused U/s. 498(A), IPC & 4 D.P. Act. Hence, the petition dt. 18.4.2007 filed by the accused be treated as rejected.

In other words, it is asserted that the Learned S.D.J.M. has not determined the petition filed by the Petitioner on its own merits & since he had ignored to pass any order on the petition filed by the accused for discharge on 18.4.2007, by a later order, i.e. on 23.7.2007 came to hold that since charge has already been framed by him after hearing Learned Counsel for the parties on 18.4.2007, the petition for discharge itself would be "treated as rejected."

Mr. P.C. Chhinchani, Learned Counsel appearing for Opp. Party No. 2 strenuously urged that since charge was framed on 18.4.2007 after hearing Learned Counsel for both the sides, the requirement of Section 239, Cr.P.C. has been satisfied & he could have no grievance thereto.

Mr. Dash, Learned Counsel appearing for the accused-Petitioner, on the other hand, submits that as would be evident from Sections 238, 239 & 240, Cr.P.C. once the accused files a petition for discharge, it is incumbent upon the Trial Court to consider the same & only after rejection of the same, the Court could proceed to frame charge u/s 240, Cr.P.C.

Having heard Learned Counsel for the parties as well as Learned Addl. Government Advocate on behalf of the State & on perusing the provisions of Sections 238, 239 & 240, Cr.P.C. it is clear therefrom that when an accused appears or is brought before the Court in pursuance of commitment of the case u/s 209, Cr.P.C., the prosecutor shall open its case by describing the charge brought against the accused & state what evidence he proposes to prove the guilt of the accused u/s 240, Cr.P.C. Thereafter, the Court is required to examine the case record & the documents submitted therewith, hear the submission of the accused as well as the prosecution & if the Judge considers that there is no sufficient ground to proceed against the accused, he shall discharge the accused & record his reasons for so doing. Section 240, Cr.P.C. clearly stipulates that only after such consideration & hearing as aforesaid, if the judge is of the opinion that there is ground for presuming that the accused has committed an offence, he shall proceed thereafter in accordance with law.

On a reading of the aforesaid three provisions of the Code of Criminal Procedure together, it is abundantly clear therefrom that, the mandatory requirement for the Court is to first consider compliance of the provisions of Section 238, Cr.P.C. & if the application for discharge is filed, the same has to be considered & only after such consideration & hearing of the petition, the Trial Court shall proceed to form an opinion whether or not there is sufficient ground for presuming that the accused has committed the offence.

As per the aforesaid provisions of law & the discussions made above, it clearly appears that the impugned Order Dated 23.7.2007 has been passed basing on a presumption, which is not available under law. The accused-Petitioner admitted filed the petition for discharge on 18.4.2007 & the said petition was neither considered nor heard, but instead on 18.4.2007 charges were framed, off course after hearing the respective parties. But the said petition u/s 239, Cr.P.C. remained pending for consideration. Thereafter only on 23.7.2007, the petition filed on 18.4.2007 seeking for discharge came to be "treated as rejected" without entertaining the issue raised by the accused-Petitioner.

In view of the foregoing discussions, I am of the considered view that interest of justice would be best served if both the Orders Dated 18.4.2007 & 23.7.2007 passed in G.R.Case No. 168 of 2005 are quashed & the matter is remitted back to the Learned S.D.J.M., Bonai to hear the petition filed by the Petitioner u/s 239, Cr.P.C. on its own merits & ordered accordingly. The CRLMC is allowed with a direction to the Learned S.D.J.M., Bonai to consider the petition filed by the Petitioner u/s 239, Cr.P.C. (copy of which has been annexed as Annexure-2) & thereafter to proceed in accordance with law. While considering the said petition, the Trial Court shall not be influenced by any observation made in this order. Since the matter is pending for a substantial period, the Trial Court shall do well to expeditiously deal with the same. The interim order passed earlier stand vacated.