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Radhashyam Agarwalla and ors. Vs. S.D.J.M. Sonepur and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 107 of 1976
Judge
Reported inAIR1977Ori104
ActsConstitution of India - Article 226
AppellantRadhashyam Agarwalla and ors.
RespondentS.D.J.M. Sonepur and ors.
Appellant AdvocateR. Mohanty, ;M.N. Das, ;M.R. Panda and ;B. Agarwalla, Advs.
Respondent AdvocateD.P. Mohapatra, Addl. Govt. Adv.
DispositionPetition dismissed
Cases ReferredSwarn Singh v. State of Punjab
Excerpt:
.....is contended that the informant as well as other persons of the fire-brigade were threatened to vacate the house and out of fear they had to leave the house and take away their articles. as well as from the f. the learned assistant sessions judge has also found that at this stage he has only to see if a prima facie case has been made out from the materials available from police papers against the petitioners and he was satisfied that there are sufficient materials on record against the petitioners to frame charges under sections 395 and 148 i. the high court will not review findings of fact reached by the inferior court or tribunal even if they are erroneous, this is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as..........he found there was prima facie case against them.in this court, it is contended that there are no materials on record to support such charges and the learned assistant sessions judge is wrong in framing such charges. in the first information report it is contended that the informant as well as other persons of the fire-brigade were threatened to vacate the house and out of fear they had to leave the house and take away their articles. even in spite of request by them that some time should be allowed to them to find out a shelter, petitioner no. 1 did not listen to it and about 200 people surrounded the occupants and forced them to leave the place. statements of talim mohammad, gopal chandra miajhi, dayanidhi sahu, gobardhan bag, parsuram swain, niranjan sahu, bidyadhar sahu, kshetra.....
Judgment:

Das, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India read with Section 482, Cr. P. C., for quashing the charges against the petitioners for offences under Sections 395 and 148 of the Indian Penal Code in Sessions Trial No. 12-B/11-75 in the court of the Sessions Judge, Balangir-Kalahandi.

2. Petitioners were committed for sessions trial for offences under Sections 395 and 148 I.P.C. along with other sections of the Indian Penal Code. In the sessions court, charges have been framed against them under Sections 395 and 148 T.P.C. Legality of the charges framed by the Assistant Sessions Judge, Sonepur has been challenged in this writ petition.

3. A fireman in charge of Birmaharajpur Fire Station lodged first infortion report that the fire brigade personnel were occupying a house belonging to petitioners 1 and 2. They were forcibly driven out of the house by the petitioners under threat end coercion and their belongings were removed. It is further contended that they were also assaulted by the petitioners. The petitioners were heard at length at the time of framing of charges by the Assistant Sessions Judge, After hearing counsel for both sides, the learned Assistant Sessions Judge discussed the contentions raised by the prosecution as well as by the petitioners and framed charges against the petitioners under Sections 395 and 148 I.P.C. as he found there was prima facie case against them.

In this Court, it is contended that there are no materials on record to support such charges and the learned Assistant Sessions Judge is wrong in framing such charges. In the first information report it is contended that the informant as well as other persons of the fire-brigade were threatened to vacate the house and out of fear they had to leave the house and take away their articles. Even in spite of request by them that some time should be allowed to them to find out a shelter, petitioner No. 1 did not listen to it and about 200 people surrounded the occupants and forced them to leave the place. Statements of Talim Mohammad, Gopal Chandra Miajhi, Dayanidhi Sahu, Gobardhan Bag, Parsuram Swain, Niranjan Sahu, Bidyadhar Sahu, Kshetra Mohan Pradhan, Bairagi Nayak and Balabhadra Sethi recorded under Section 161 Cr. P. C., copies of which have been supplied to us, reveal that all these ten witnesses have categorically stated that under threat and coercion they had to vacate the house and petitioners 1 and 2 took forcible possession of the house and the belongings of the persons in occupation of the house had to be removed under fear and threat.

The learned Assistant Sessions Judge, after going through the statements recorded under Section 161 Cr. P. C. has come to the conclusion that the petitioners forcibly took delivery of the room by putting the fire station staff in fear of instant hurt or instant death or instant wrongful restraint to them and, therefore, the fire station staff so put in fear delivered the room then and there. He has further held that from the statements recorded under Section 161 Cr. P. C. as well as from the F.I.R. and the supervision note of the Dy. S. P. it appears that the petitioners put the fire station staff in fear of injury, instant hurt or death to deliver the house and, as such, a prima facie case has been made out against the petitioners under Ss. 395 and 146, I.P.C. The learned Assistant Sessions Judge has also found that at this stage he has only to see if a prima facie case has been made out from the materials available from police papers against the petitioners and he was satisfied that there are sufficient materials on record against the petitioners to frame charges under Sections 395 and 148 I.P.C.

4. The question for examination in this case is whether on the facts and circumstances of the case this Court, in exercise of its writ jurisdiction will interfere with an order framing charges under Sections 395 and 148 I.P.C. against the petitioners.

A similar question came up for consideration before this Court in Rajanikanba v. State of Orissa, (1976) 42 Cut LT 292 = (1976 Cri LJ 1674). In that case, it has (been held:

'Section 397(2), Criminal Procedure Code only bars the revisional jurisdiction of the High Court. But the legal position is firmly established that the inherent powers cannot be invoked to do what the law on the subject otherwise expressly prohibits. Inherent power is not intended to be exercised for the purpose of doing something which would be in conflict with any of the express provisions of the law as it would defeat the intention of the Legislature.'

It has also been held:

'In a petition under Article 226 of the Constitution for issuance of a writ of certiorari, this Court does not sit in appeal but exercises only supervisory jurisdiction and therefore does not enter into the question of appreciation of evidence. Certiorari is issued for correcting errors of jurisdiction, as when an inferior Court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. The High Court will not review findings of fact reached by the inferior Court or Tribunal even if they are erroneous, This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right. The power of superintendence of the High Court under Article 227 has to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.'

For the above observations, reliance was placed on two cases of the Supreme Court i.e. Waryam Singh v. Amarnath, AIR 1954 SC 215 and Ahmedabad Mfg. & Calico Ptg. Co. v. Ramtahel Ramanand, AIR 1972 SC 1596.

The case of Swarn Singh v. State of Punjab, AIR 1976 SC 232 was also relied on for the principle that in regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to ''admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior Courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. While exercising writ jurisdiction, the High Court should not ordinarily interfere with the proceedings duly commenced, before a competent Court of law until it finds that such Court has acted without jurisdiction or in excess of the jurisdiction or that there is an error of law apparent on the face of the record.

5. The Assistant Sessions Judge had jurisdiction to frame charges. He had gone through the papers submitted under Section 173 Cr. P. C. He also heard arguments from the side of the petitioners as well as the prosecution. After going through the statements recorded by the police and perusing the FI.R., he has come to the conclusion that he has found a prima facie case under Sections 395 and 148 I.P.C. against the petitioners. Copies of the statements of witnesses recorded by police were also supplied to us. After going through the statements, we find that there are materials on record to show that there is a prime facie case against the petitioners. It is not ,a case that there is no material on record against the petitioners. No materials were placed before us to show that evidence which is legally inadmissible has been admitted or the court below has refused to admit admissible evidence. He had jurisdiction to find out a prima facie case on materials available on record. This Court is not to reassess the evidence and substitute its own finding at this stage in place of the conclusion arrived at by the trial court. Petitioners have not established that the trial court had no jurisdiction or that it failed to exercise jurisdiction vested in it, or that there is error of law apparent on the face of the record. In view of the aforesaid circumstances, this Court cannot set aside the interlocutory order of the trial court in exercise of its writ jurisdiction or in exercise of its inherent jurisdiction as has already been held by this Court in the case of Rajanikanta Meheta (1976 Cri LJ 1674) (Orissa) (supra).

6. Reliance was placed on behalf of the petitioners on Century Spinning & . v. State of Maharashtra, AIR 1972 SC 545. This case was also considered by this Court in Rajanikanta Mesheta's case 1976 Cri LJ 1674 (Orissa) and in para. 12 of the judgment it has been held that this case is distinguishable on facts, inasmuch as the case of Rajanikanta Meheta did not suffer from any infirmity as it was in the case before the Supreme Court, After going through the records of this case and the orders passed by the trial court, we hold the same view and the facts of the case of Century Spinning & . are distinguishable from the case in hand. The facts and circumstances of the present case are, to a large extent, in conformity with the facts and circumstances of Rajanikanta Meheta's case which arose for consideration 'before this Court

7. The legislative intent is clear that superior courts should not interfere with interlocutory orders passed in criminal proceedings duly instituted before a competent court toy the amendment in the Criminal Procedure Code. This Court should refrain from passing such order while exercising its writ jurisdiction. Even assuming for the sake of argument that the contentions of the petitioners have any basis, we hold that this is not a case for quashing the charges. The petitioners may have a cent percent case for acquittal, but that does not entitle to get the charges quashed on such ground. In the present case, objections raised in this Court were also raised before the Magistrate while taking cognizance of the case and again before the Assistant Sessions Judge at the time of framing of charges after commitment. But the courts have concurrently held that on materials available on record, a prima facie case has been found out. In view of these circumstances, we hold that this Court cannot exercise its writ jurisdiction in quashing the charges.

8. It is further contended by the petitioners that the fire-brigade was only a bare licensee in respect of the house in question and hence the landlord had the right to throw them out by use of force. This question was never raised at any earlier stage. Such a ground was never taken in the writ petition also. We may observe that this is a pure question of fact which cannot be permitted to be raised at this stage. It is to be decided by the trial court as to whether the nature of occupation by the fire-brigade people, who had admittedly remained in the premises for more than two months, is a question of fact and this question can be investigated in the light of evidence to be recorded, in the writ petition, contentions have been raised about the name of materials for a charge of theft and it is contended that consequently the charge under Section 396 I.P.C. is not sustainable. No question has been raised in the writ petition about extortion,

9. When five or more persons conjointly commit or attempt to commit a robbery, and persons present and aiding such commission or attempt are said to have committed the offence of dacoity.

Section 390 of the Indian Penal Code defines that robbery consists of theft and extortion. Extortion amounts to robbery If the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting In fear, induces the person so put in fear then and there to deliver up the thing extorted. The word 'extortion' is denned in Section 383 I.P.C. Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits 'extortion'.

The learned Assistant Sessions Judge, after examining the materials on record has come to the definite conclusion that there are materials on record for a prima facie case that the petitioners intentionally put the fire-brigade people in fear of injury and thereby induced them with dishonest intention and put them, in fear to give delivery of the property. This finding being based on materials on record, which we have also examined, cannot be interfered with at this stage by this Court. It is contended on behalf of the petitioners that the fire brigade people gave delivery of possession of the house which is .an immovable property and it will not come under the 'definition of 'extortion'. From materials on record it is found that not only the fire-brigade people were forced to vacate the house under threat, but their belongings were also brought out of the house. After recording of evidence, the real state of affairs will be known as to what actually happened. It is a matter to be decided by the trial court after recording evidence and at this stage we cannot form an opinion contrary to that of the trial court while passing an interlocutory order.

In this case, materials on record reveal that a large number of persons with threat and coercion put the fire-brigade people in fear and thereby the fire-brigade people delivered possession of the house and brought out the belongings. There are also allegations of assault, but the trial court has to decide at what stage assault took place after recording evidence and considering the same. Even assuming that a second view on this aspect is possible, this is not the stage to adjudge the point finally. The facts and circumstances of this case are squarely covered by the case of Rajanikanta Meheta.

10. After hearing counsel for both sides, we hold that the contentions of the petitioners are not sustainable. We dismiss the petition. There will be no order as to costs.

S.K. Ray, A.C.J.

11. I agree.


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