KISHORE CHANDRA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners have challenged the order passed by the learned Sub-Divisional Judicial Magistrate, Jharsuguda, framing charge against them under S.409 of the Indian Penal Code (for short, 'I.P.C.').

(2.) A few facts may be stated in brief. On the basis of an F.I.R. lodged by the Divisional Manager, Kendu Leaves, Jharsuguda, of the Orissa Forest Corporation Ltd., G. R. Case No. 773 of 1980 under S.408, I.P.C. was initiated against one Binod Kumar Rathor. After investigation, final report was submitted on 18-6-1983 on the ground that there was insufficient evidence against the accused. The informant, however, filed a protest petition. On 22-5-1983 the case diary was called from the Investigating Officer. On 30-7-1983 report was called from him. Till 5-4-1984 neither the case diary nor the report was received. In consideration of the facts stated in the protest petition, the learned Judicial Magistrate directed further investigation. Even after further investigation a supplementary final report was received stating that there was insufficient evidence against the accused. The learned Judicial Magistrate did not accept this final report either and again called for the case diary from the Investigating Officer. On 1-2-1986 he passed an order directing the informant to produce relevant documents and returned the case diary to the Investigating Officer. Ultimately on 2-1-1987 a charge-sheet was submitted against the present petitioners and not the original accused Binod Kumar Rathor. In consideration of the charge-sheet and other police papers, the learned Judicial Magistrate learned charge against the petitioners on 17-7-1987 for an offence under S.409, I.P.C. for having misappropriated a sum of Rs. 46,696/-.

(3.) Mr. H.S. Misra, the learned counsel for the petitioners, challenged the impugned order mainly on two grounds. First, the learned Judicial Magistrate had no power to direct the police to submit charge-sheet and second, the petitioners have been put to harassment for nearly seven years without trial which amounts to miscarriage of justice violative of Art.21 of the Constitution. Mr. D.P. Sahoo, the learned Standing Counsel, on the other hand, contended that the learned Judicial Magistrate did not direct the police for submission of charge-sheet, but directed for further investigation by implication by order dt. 1-2-1986 and since the petitioners came into the picture only in the year 1987 they have no been put into harassment and there has not been a miscarriage of justice.