RABINDRANATH PARIDA v. STATE OF ODISHA

2. Petitioner No.1 is the father-in-law and petitioner No.2 is the husband of the deceased Sagarika Parida who is the daughter of the informant. Charge sheet dated 11.03.2016 had been submitted against them for commission of offences punishable under Section 498-A / 304-B / 34 of the Indian Penal Code (in short "IPC"), read with Section 4 of the Dowry Prohibition Act (in short "DP Act") Act, keeping investigation open for arrest of the co-accused Lata Parida @ Premalata Harichandan, mother-in-law of the deceased. Supplementary chargesheet has purportedly been filed against the co accused subsequently.

3. The prosecution case in brief is that the marriage of the deceased had been solemnized with the petitioner on 08.03.2015. At the time of marriage cash of Rs.2,20,000/-, some gold ornaments, household articles had been given. Thereafter, the present petitioners along with the mother-in-law Lata Parida @ Premalata Harichandan and sister-in-laws Tikina and Mani pressurized the deceased to bring further dowry consisting of one dining table and one air cooler. In order to compel her to bring more dowry, she was tortured and not given proper food. On 03.01.2016, she had come to her father's house in the evening and told them about the torture meted out to her. She was in sound health at that time and returned to her in-law's

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house on the same day. But on 07.01.2016, at about 11.30 AM, she informed her father over telephone that she was not feeling well and the petitioners and her mother-in-law without arranging for her treatment or medication, had left the house. Her mother-in-law was working as a nurse. On getting information, the informant sent his younger brother to the house of deceased, who took her to a clinic in Phulnakhara, where the Doctor advised them to go to SCB Medical College, Cuttack for better treatment. On reaching SCB Medical College, the Doctor declared her "brought dead". During post- mortem examination, the Doctor was of the opinion that the death of the deceased might have been caused by poisoning for which her viscera was sent for examination to the State Forensic Science Laboratory (SFSL). After completion of investigation but before receipt of the viscera report, charge sheet dated 11.03.2016 was submitted against the petitioners for commission of the offences under Section 498-A, 304-B, 34 of the IPC, read with Section 4 of the DP Act keeping investigation open for arrest of co-accused Lata Parida @ Premalata Harichandan mother-in-law of the deceased.

4. I have heard Mr. Jasobanta Dash, learned counsel for the petitioners and Ms. S Mishra learned Addl. Standing Counsel and carefully gone through the impugned order and the case diary.

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5. Mr. Dash learned counsel for the petitioner has submitted that without proper investigation into the case and before receipt of the viscera report from the State Forensic Science Laboratory (in short

"SFSL"), the IO had hastily submitted the charge sheet against the present petitioners. The viscera report was called for by the learned trial Court on the application dated 25.10.2017 filed by petitioners and copy of the report has been filed as part of Annexure-2 to this petition. In the report, it has been stated that neither any Barbiturates, benzodiazepine group of drugs, insecticidal, alkaloidal, rodenticidal, oleander glucosidal and metallic poison could not be detected in the viscera of the deceased. From the entries in the report it was apparent that the death of the deceased was natural, for which an application under Section 227 of the Cr.P.C. had been filed by the petitioners for discharging them from the case but in this Revision the petitioners confine their prayer for discharge from the offence under Section 304-B of the IPC as death of the deceased was not under unnatural circumstances . He has further submitted that perusal of the entries in the inquest report would reveal that at the time of the inquest there was no suspicion regarding the cause of the death of the deceased. In the inquest report the father of the deceased Brajakishore Jena and Petitioner No.1- Rabindranath Parida, father-in-law of the deceased

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have both have signed and nobody has stated that there were any suspicious circumstances surrounding her death. The house of the informant as well as the petitioners are located in the same village, which is at a distance of about 100 meters from each other, for which it was possible for the deceased to go to her father's house at any moment of the day and for her relations to come to the house of the petitioners. FIR has been lodged after receipt of the post mortem examination report making false allegations and during investigation the informant and his relations have made false allegations against the petitioners and the co-accused regarding ill treatment, harassment for non-fulfillment of the subsequent demand for an air-cooler and a dining table towards dowry . As the prosecution has failed to show that the death of the deceased was not under normal circumstances , which is a necessary ingredient of the offence under Section 304-B of the IPC, charge cannot be framed against the petitioners for the said offence and the learned trial court should have discharged the petitioners from the offence under Section - 304 - B IPC. He also submitted that at the time of framing of charge duty is cast upon the Court to look at the evidence placed before it to see whether or not there is sufficient ground to proceed against the accused , which has not been done by the learned trial Court and in support of the

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submission he has relied on the decision of this Court in the case of

Shantanu @ Priyabrata Senapati vs. State of Orissa, reported in

2022 (Vol.II) ILR- CUT-226. He has relied on the decision of the Apex Court in the case of Sajjan Kumar vs. CBI reported in 2010 (9) SCC 368 paragraph-

21) where the Supreme Court has laid down the guidelines regarding duty of the Court at the time of framing of charge . He submits that although he had relied on the decision of the Apex Court in the case of Union of India vs. Prafulla Kumar Samal and Ors. reported in

(1979) 3 SCC 4, the learned trial Court did not refer to the judgement and instead referred to the decisions of the Supreme Court in the case of State of Orissa vs. Debendranath Padhy reported in 2005, vol.30 OCR (SC) 177 and in the case of State (CBI) vs. Dr. Anup Kumar Srivastava: 2017 SC 3698 and rejected the application for discharge by an erroneous and illegal order.

He has also submitted although it has been claimed by the prosecution that supplementary charge sheet has been filed on 27.08.2016, such charge sheet has not been submitted to the Court for which only the original case against the petitioners Rasmiranjan Parida and Rabindranath Parida has been committed to the Court of Sessions in the year 2021. He has submitted that had supplementary

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chargesheet been submitted against co-accused Lata Parida @ Premalata Harichandan, summons would have been issued against her and the case against her would also have been committed.

6. Ms S. Mishra learned Addl. Standing Counsel has submitted that there is no error in the impugned order as at the stage of framing of charge, the submission of the accused is to be confined only to the materials on record which have been produced by the police. The materials are to be examined by the Court but the Court cannot consider the sufficiency of materials to establish the offence against the accused person at that stage. At this stage the Court is to examine materials only to satisfy itself if a prima facie case is made out. In support of her submission, she relies on the decision of the Supreme Court in the case of State of Tamilnadu vs. N. Suresh Rajan

reported in 2014 vol.11 SCC 709. She also submits that to make out an offence under Section 304(B) of IPC, three conditions are necessary to be established.

i) The death of the women occurred within seven years of marriage.

ii) She was subjected to cruelty soon before her death.

iii) Her death was otherwise than under the natural circumstances.

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She submits that in this case the first two requirements have been fulfilled and the fulfillment of the third requirement is a matter of trial as the deceased who was hale and hearty has died in suspicious circumstances.

7. Ms. S. Mishra, learned Additional Standing Counsel had produced the copies of CD No. XVI in Cuttack Sadar P.S. Case No.12 of 2016, which contains the entries dated 22.07.2016, where it is stated that extract of the order passed by the Hon'ble J.M.F.C.(R), Cuttack has been received. It has been mentioned therein that as bail bonds in respect of co-accused Lata Parida @ Premalata Harichandan has been accepted as solvent, the bailors have been accepted as solvent and the bail bonds were also verified and accepted. It also contains the entry dated 27.08.2016 in CD No. XVII, where it is stated that the I.O examined co-accused Smt. Lata Parida @ Premalata Harichandan, who denied the charges labeled (sic leveled) against her and after referring to the charge sheet dated 1.03.2016 filed against the co-accused Rasmiranjan Parida (husband), Rabindranath Parida (father-in-law), the I.O has noted that the investigation in the case is complete and prima facie is well made out against accused Lata Parida @ Premalata Harichandan, for which he submitted supplementary charge sheet under Section 498-

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A, 304-B, 34 of the IPC, read with Section 4 of the DP Act against her to face trial.

Judicial Pronouncements

8.1. In a recent decision: M.E Shivalingamurty vs C.B.I:

(2020) 2 SCC 768 the Supreme Court reiterated the legal principles to be considered while considering an application for discharge . The relevant paragraphs are extracted below:

"LEGAL PRINCIPLES APPLICABLE IN REGARD TO

AN APPLICATION SEEKING DISCHARGE

17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another reported in (2010) 2 SCC 398 and discern the following principles:

17.1 If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.

17.2 . The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.

17.3 The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for

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proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.

17.4 If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

17.5 It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6 The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

17.7 At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

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18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.PC (See State of J & K v. Sudershan Chakkar and another: (1995) 4 SCC 181 :

AIR 1995 SC 1954)). The expression, "the record of the case", used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (See State Of Orissa v. Debendra Nath Padhi .: (2005) 1 SCC 568)."

8.2 The Supreme Court in the case of State of Gujarat vrs. Dillip Sinh Kishore Sinh Rao reported in 2023 SCC Online 1294 has held:

"Discussion and Findings

7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient

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to proceed against the accused on basis of charge sheet material.

The nature of the evidence recorded or collected by the investigating agency, or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.

8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge- sheet material only.

9. If the accused is able to demonstrate from the chargesheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is

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unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.

10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge.

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It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency."

In the same decision dealing with the power of the High Court under Section 397 of Cr.P.C., the Supreme Court has held as follows:

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"13. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law.

If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one

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and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC."

14. This Court in the aforesaid judgement has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr.P.C. is sought for as under:

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles.

At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

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27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."

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15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge."

8.3. In the case of Shantanu @ Priyabrata Senapati (supra), this Court:

Court after referring to the decision of Prafulla Kumar Samal (supra), State of Bihar vs. Ramesh Singh, reported in (1977) Cri.L.J. 1606 and Dilawar Balu Kurane vs. State of Maharashtra,

reported in (2002) 2 SCC 135 has held as follows:

"10. From the above narration it is evident that only a grave suspicion can justify framing of charge against an accused. To further explain, suspicion per se may be entirely in the realm of speculation or imagination and may also be without any basis, whereas grave suspicion is something which arises on the basis of some acceptable material or evidence. Only because there is no other explanation for the alleged occurrence, the needle of suspicion should point at the accused cannot be a reasonable basis to proceed with the trial against him. But to do so, there must be some nexus or link between him and the occurrence which is ex facie available to be seen or inferred from the materials placed before the Court. Only then will the statutory requirement of

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"sufficient ground" as per Section 227 Cr.P.C. be said to have been satisfied."

8.4. The Supreme Court in the case of Prafulla Kumar Samal (supra) has held as follows:-

"Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or

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a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

8.5. The Supreme Court in the case of Debendra Nath Padhi

(supra) has held as follows:-

"Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well- settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the

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provision about hearing the submssions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."

8.6. The Supreme Court in the case of Dr. Anup Kumar Srivastava has held as follows:-

"23) It was contended by learned counsel for the appellant-State that the High Court exceeded its jurisdiction while quashing the order of charge passed by the Special Court, CBI Cases. The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused

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persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion, there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that

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offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."

9. From a careful reading of the above decisions and the guidelines laid down in these cases, it is no longer res integra, that at the stage of framing of charge or while considering an application for discharge, a roving and fishing inquiry is impermissible. The trial court is not expected to hold a mini trial and examine and assess in detail the materials placed on record by the prosecution. If the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be, fully justified to frame a charge and proceed with the trial. What will constitute a prima facie case will vary from case to case and a rule of universal application cannot be laid down. But at the same time the Court is not to act as a "post office" or as a "mouth piece" of the prosecution and mechanically accept its case. It has "to sift and weigh the evidence" for the limited purpose of finding out whether or not a prima facie case is made out against the accused. At the same time unless there are strong reasons to hold that it would be in the interest of justice or to avoid abuse of the process of the court, the High Court should not interfere with the order framing charge. The expression, "the record of the case", used in Section 227 of the

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Cr.PC, necessarily means the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge and his/her submission has to be based on the material produced by the Police.

10. In the present case, statements of witnesses reveal that the deceased was being harassed and ill-treated by the accused persons on account of non-fulfilment of the demand for dowry. On the date of occurrence, she was feeling unwell but the accused persons instead of taking her to a doctor left her alone in the house. The deceased was aged about 24 years and was not suffering from any illness before the occurrence. Therefore, prima facie, her death cannot be said to be under normal circumstances. At this stage, the viscera report which has been called for at the instance of the petitioners cannot be looked into as it does not form part of the chargesheet, or documents submitted by the police. The ingredients of Section - 304 B of the IPC having been prima facie fulfilled, there is no merit in the prayer of the learned counsel for the petitioners that the petitioners should have been discharged from the said offence. The petitioners can raise all their contentions during trial which all be considered by the Court in accordance with law during hearing of

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the case as the documents relied on by the prosecution and the defence as well as the oral evidence will be available to Court. The learned trial Court has dismissed the application holding that the Court cannot draw a presumption at that stage in respect of the viscera test report and postmortem examination report which will be considered at the stage of trial. I find no infirmity in the impugned order so as to interfere with the same. I am also of the view that merely because the learned trial court did not refer to the decisions cited by the accused persons, the order should be interfered with as the trial court has referred to two other decisions of the Supreme Court.

11. It is necessary to mention here that the learned trial Court shall make endeavour to try the co accused- Lata Parida @ Premalata Harichandan (mother-in-law of the deceased) along with the petitioners as it is stated that supplementary chargesheet has been filed against her, provided there is no other legal impediment for doing so the prosecution shall also take steps for commitment of the case of the co-accused so that she can be tried with the petitioners.

12. In view of the above discussion, I find no merit in the Criminal Revision, which is accordingly dismissed.

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13. It is open to the petitioners to raise all their contentions during trial which shall be considered by the learned Trial Court during hearing of the case.

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

……………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 15^th April, 2024. Subhalaxmi, Junior Stenographer.

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