Whether Section 240 of Cr.P.C. permits the Accused to Answer the Charge through his Counsel ?

Criminal Procedure Code, 1973 - S. 240 (2) - Framing of Charge - Section 240 of Cr.P.C. does not permit the accused to answer the charge through his counsel.

ORISSA HIGH COURT, CUTTACK

S.K.Sahoo, J.

Niranjan Rana vs State Of Odisha

1 September, 2017

CRLA No. 209 of 2017

Niranjan Rana ............ Appellant -Versus- State of Odisha ............ Respondent 

For Appellant: - Mr. Devashis Panda 

For Respondent: - Mr. Bibekananda Bhuyan (Addl. Govt. Advocate) 

In this criminal appeal under section 13 of the Odisha Protection of Interests of Depositors (In Financial Establishment) Act, 2011 (hereafter ‘O.P.I.D. Act’), the appellant Niranjan Rana has challenged the impugned order dated 18.03.2017 passed by the learned Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack in framing charge against him under section 420 of the Indian Penal Code and section 6 of the O.P.I.D. Act.

It is the contention of Mr. Devashis Panda, learned counsel for the appellant that as per the provision under section 15(1) of the O.P.I.D. Act, the Designated Court in trying the accused shall follow the procedure prescribed in the Cr.P.C., 1973 for the trial of warrant cases by Magistrates and therefore, the CRLA No. 209 of 2017 k learned Designated Court should not have framed charge against the appellant in his absence by reading over the contents of the charge and explaining the same to the representing counsel for the appellant.

Section 15(1) of the O.P.I.D. Act states that the Designated Court in trying the accused person, shall follow the procedure in the Cr.P.C. for the trial of warrant cases by Magistrates. Trial of warrant cases by Magistrates has been dealt with in Chapter XIX of Cr.P.C. Section 240 of Cr.P.C. deals with framing of charge. Sub-section (2) of section 240 of Cr.P.C. states that the charge shall be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claimed to be tried.

Therefore, section 240(2) of Cr.P.C. mandates that it is the duty of the Trial Court not only to read the charge in presence of the accused but to explain the same to the accused so that he understands it thoroughly. Since the accused shall be asked then whether he pleads guilty of the offence charged or claims to be tried, unless he understands the charge properly, there would be failure of justice. The mechanical approach of framing charge by the Trial Court without understanding the purport of section 240(2) of Cr.P.C. can never be appreciated. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (Ref: Nazir Ahmed -Vrs.- King Emperor reported in A.I.R. 1936 P.C. 253, Rao Shiv Bahadur Singh -Vrs.- State of Vindhya Pradesh reported in A.I.R. 1954 SC 322, State of U.P. -Vrs.- Singhara Singh reported in A.I.R. 1964 S.C. 358, Chandra Kishore Jena -Vrs.- Mahavir Prasad reported in 1999 (8) Supreme Court Cases 266, Dhananjaya Reddy -Vrs.- State of Karnataka reported in 2001 (4) Supreme Court Cases 9 and Gujurat Urja Vikas Nigam Limited -Vrs.- Essar Power Ltd. reported in 2008 (4) Supreme Court Cases 755).

Section 240 of Cr.P.C. does not permit the accused to answer the charge through his counsel.

In case of HDFC Bank Ltd. -Vrs.- J.J. Mankan reported in (2010) 1 Supreme Court Cases 679, it is held that it will lead to an absurd situation that the charge was framed against the accused in his absence, which would defeat the very purpose of sub-section (2) of section 240 of Cr.P.C.

In case of Santosh Kumar Nayak -Vrs.- State of Orissa reported in 2011 (Vol.2) Orissa Law Reviews 106, it is held that the charge was not red over and explained to the accused in person and the same is in violation of section 240(2) of Cr.P.C.

In case of Tankadhar Mishra -Vrs.- Republic of India reported in Vol.I (2017) Current Criminal Reports 65, it is held that in view of the language of section 240(2) Cr.P.C., it appears that the same is mandatory and in the case, the charge was neither read and explained to the petitioner nor his plea of guilty or otherwise was recorded. Concession of counsel cannot override statutory mandatory provisions and therefore, framing of charge against the petitioner in his absence has defeated the very purpose of sub-section (2) of section 240 of Cr.P.C.

In view of the above proposition of law, Mr. Bibekananda Bhyuan, learned Addl. Government Advocate fairly submitted that the impugned order of framing charge be set aside and the matter may be remanded to the learned Designated Court for reframing the charge against the appellant in his presence.

Mr. Devashis Panda, learned counsel for the appellant submits that the appellant is ready and willing to appear before the concerned Court on 6th September, 2017.

It is further stated that the case is now posted to 4th September, 2017.

In view of the aforesaid submission, since it is not disputed that the charge has been framed in violation of the procedure laid down in section 240(2) Cr.P.C., the impugned order is set aside. The appellant is directed to appear in person on 6th September, 2017 without fail and in his presence the Presiding Officer shall re-frame the charge in accordance with law.

With the aforesaid observation, the Criminal Appeal is disposed of.

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

A free copy of the order be handed over to the learned counsel for the State.