S.K. Sahoo, J. - Heard Mr. Manoj Kumar Mohanty, learned counsel for the petitioner and Mr. Jyoti Prakash Patra, the learned Addl. Standing counsel for the State.
2. This is an application under section 482 of Cr.P.C. filed by the petitioner Krushna Chandra Behera challenging the orders dated 21.04.2006 and 25.05.2006 passed by the learned J.M.F.C., Kantabanji in G.R. Case No. 207 of 2002 arising out of Bangamunda P.S. Case No.61 of 2002 in directing framing of charge afresh and for de novo trial as per the direction of learned Chief Judicial Magistrate, Bolangir after inspection of the Court in the year 2005.
3. Learned counsel for the petitioner contended that the petitioner was working as Village Level Worker (VLW) at Bangomunda Block Office and on the First Information Report dated 20.09.2002 submitted by one Basanta Kumar Oddu, B.D.O., Bangomunda Block, Bangamunda P.S. Case No.61 of 2002 under section 409 of the Indian Penal Code was registered against the petitioner and after completion of investigation, charge sheet was submitted under section 409 of the Indian Penal Code on 06.08.2004. On 01.10.2004 the learned J.M.F.C., Kantabanji rectified the charge on the ground that the charge was defective and thereafter, the prosecution examined as many as three witnesses to prove the case against the petitioner and exhibited certain documents. Learned C.J.M., Bolangir inspected the Court of the learned J.M.F.C., Kantabanji in the year 2005 and found irregularities in the framing of charge and accordingly, directed the learned J.M.F.C., Kantabanji to frame charge afresh and to proceed with de novo trial. In pursuance of such direction, the learned J.M.F.C., Kantabanji on 21.04.2006 decided to proceed with the trial de novo and fixed the date for framing of charge and on 25.05.2016 the learned J.M.F.C., Kantabanji considering the materials available on record was of the view that there was sufficient materials to presume the complicity of the petitioner in the commission of offence under section 409 of the Indian Penal Code. It is held that the alleged offence was committed in respect of two years i.e. 2001 and 2002 and in view of section 212 and section 220 of Cr.P.C., separate charge for each of the aforesaid years are to be framed and accordingly, two separate files i.e. G.R. Case No. 207 of 2002 and G.R. Case No. 207-A of 2002 for trial of the petitioner under section 409 of the Indian Penal Code in respect of the year 2001 and 2002 respectively were opened.
4. Challenging the impugned orders dated 21.04.2006 and 25.05.2006, it is contended by the learned counsel for the petitioner that in view of Rule 363, Part-VI, Chapter-I of General Rules and Circular Orders (Criminal) Vol-I, the learned Chief Judicial Magistrate lacks jurisdiction to pass such direction during inspection and therefore, the learned J.M.F.C., Kantabanjhi should not have passed the impugned orders on the direction of learned C.J.M. It is further contended that under Rule 365, the learned District and Sessions Judge is empowered to pass appropriate orders/direction in that respect.
5. Rule 363 of G.R.C.O. (Criminal) Vol.1 deals with inspection by Chief Judicial Magistrates which is enumerated hereunder:-
"363. Inspection by Chief Judicial Magistrates: The Chief Judicial Magistrates shall inspect the Courts of the Judicial Magistrates subordinate to them quarterly, half-yearly or annually as may be specified by the Court from time to time. These inspections should be detailed and should amongst other matters, be directed to the following:-
x x x x
(8) Framing of charges."
6. Rule 365 of the G.R.C.O. (Criminal) Vol-I deals with forwarding of notes of inspection by the Chief Judicial Magistrate to the District and Sessions Judge which is enumerated hereunder:-
"365. Notes of inspection to be forwarded through Sessions Judge: The Chief Judicial Magistrate, after inspection of Magisterial Courts will send a copy of the inspection report to the concerned Magistrate within one month from the date of his inspection. The concerned Magistrate will submit his views/compliance report within a period of six weeks from the date of receipt of the copy of the inspection report.
(i) The Chief Judicial Magistrate will forward a copy of his inspection report along with the views/compliance report of the concerned Magistrate to the District and Sessions Judge within a period of four weeks from the date of receipt of the Magistrate''s views. In case no views/compliance report are received from the concerned Magistrate within the aforesaid period of six weeks, the Chief Judicial Magistrate will send his inspection report to the District and Sessions Judge without waiting for the views/compliance from the concerned Magistrate.
(ii) The District and Sessions Judge shall examine the inspection report of the Chief Judicial Magistrate along with the views/compliance reports of the concerned Magistrate and thereafter he shall pass appropriate orders/directions to the Chief Judicial Magistrate and the concerned Magistrate for taking appropriate action. However, in cases where orders/directions of the High Court are necessary, it shall be referred to the Registry of the Court.
(iii) A copy of the order/direction issued by the District and Sessions Judge along with a copy of the inspection report of the Chief Judicial Magistrate shall be sent to the Registry of this Court for record.
7. Thus the combined reading of Rules 363 and 365 of the G.R.C.O. (Criminal) Vol-I would indicate that after inspection of the Courts of the Judicial Magistrates, the Chief Judicial Magistrate has to send a copy of the inspection report to the concerned Magistrate for his views/compliance report within stipulated period of time and if he gets the views/compliance report, he has to forward it along with his inspection report to the District and Sessions Judge. However, if the views/compliance report is not received within such time, the Chief Judicial Magistrate has to send his inspection report alone to the District and Sessions Judge. The District and Sessions Judge after examining the inspection report of the Chief Judicial Magistrate along with the views/compliance report of the concerned Magistrate shall pass appropriate orders/directions to the Chief Judicial Magistrate and the concerned Magistrate for taking appropriate action."
8. In the present case, it seems that without seeking for the views of the learned J.M.F.C., Kantabanji on his inspection report, the learned Chief Judicial Magistrate has straightway directed for framing of fresh charge and to proceed with the trial de novo. This is impermissible in view of the provisions enumerated under Rules 363 and 365 of the G.R.C.O.(Criminal) Vol-I. If the Chief Judicial Magistrate found any irregularities in the framing of the charge during his inspection of the Court of learned J.M.F.C., Kantabanji, he should have been called for the views of the concerned Magistrate on such irregularities and then he should have been forwarded his inspection report along with the views of learned J.M.F.C., Kantabanji to the learned District and Sessions Judge, Bolangir for passing the appropriate orders/directions. The learned J.M.F.C., Kantabanji should not have done what he has done as per orders dated 21.04.2006 and 25.05.2006 on the direction of the C.J.M., Bolangir.
9. Accordingly, the impugned orders dated 21.04.2006 and 25.05.2006 passed by the learned J.M.F.C., Kantabanji passed in G.R. Case No. 207 of 2002 are hereby set aside.
10. The relevant inspection report of the C.J.M., Bolangir in the year 2005 should be sent to the learned J.M.F.C., Kantabanji within a period of four weeks by the learned C.J.M., Bolangir from the date of receipt of the judgment for submission of his views on the framing of charge and after receipt of the views, if any, the learned C.J.M., Bolangir shall submit the inspection report which was prepared in the year 2005 along with the views of the learned J.M.F.C., Kantabanji to the learned District and Sessions Judge, Bolangir.
11. Section 212(2) of Cr.P.C. indicates that if the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property then if it is not possible to specify the exact date and time and the exact amount in respect of which the offence is alleged to have been committed then it would be sufficient to specify the gross sum or the moveable property and the dates between which the offence is alleged to have been committed. However the time included between the first and the last of such dates should not exceed one year. Therefore the charge ought not to refer the gross sum or the items which extend over a period of more than one year. When the period exceeds one year or the charge does not specify the first and last dates during which the criminal breach of trust or dishonest misappropriation of money takes place then it will cause serious prejudice to the accused and section 465 of Cr.P.C. will not cure the irregularity. In view of section 219(1) of Cr.P.C., the accused must be charged with not more than three offences of the same kind if it has been committed within a space of twelve months from the first to the last of such offences, whether in respect of the same person or not. Therefore, if an accused is alleged to have committed four distinct and separate acts of misappropriation for separate ascertained sums of money, the prosecution is permitted to try three of them at one trial, if committed within the space of one year and try the remaining charge at another trial. Though as per the order dated 25.05.2006, it appears that the petitioner has committed the offence under section 409 of the Indian Penal Code in respect of the year 2001 and 2002 respectively, it is not clear as to whether the offences are committed within a space of twelve months from the first to last of such offences.
12. When the inspection report of the Chief Judicial Magistrate, Bolangir in the year 2005 along with the views of the learned J.M.F.C., Kantabanji would be placed before the learned District and Sessions Judge, Bolangir, keeping in view the provisions under section 212 and 219 of the Cr.P.C. and other provisions, if it is found that there has been illegality/irregularities in the framing of the charge under section 409 of the Indian Penal Code, the learned Sessions Judge, Bolangir shall initiate a suo motu criminal revision proceeding and correct the error committed by the learned Trial Court in accordance with law. Needless to say that before correcting any error in the framing of charge, opportunity of hearing should be provided to the respective parties.
13. With the aforesaid observation the CRLMC is disposed of.
