Judgment :-

Gokhale J.

The appellant in this appeal is a retired Additional Sessions Judge of the State of Orissa. In this appeal by Special Leave, he seeks to challenge the judgment and order dated 20.10.2002, rendered by a learned Judge of the Orissa High Court in suo-moto Criminal Revision No. 367 of 1997, arising out of Session Trial Case No. 187/55 of 1995, to the extent the learned Judge has made certain observations against the appellant who had decided that session case. These remarks were made on account of the appellant not framing the charge under Section 302 of the Indian Penal Code (IPC) against the accused in that case, when the material on record warranted framing of that charge.

2. The facts leading to this appeal are as follows:

Appellant not framing the charge under Section 302 IPC, when warranted. The appellant joined the Orissa judicial service in November 1971. In August 1991, he was promoted to the cadre of District Judges. During the period of his service, the appellant was transferred from place to place, and at the relevant time in March 1996, was posted as the Additional District and Sessions Judge, Rourkela, when the above referred case bearing S.T. No. 187/55 of 1995 was assigned to him.

3. The case of the prosecution in that session case was as follows. There was a land dispute between one Megha Tirkey (the accused) and one Samara Tirkey, who was alleged to have been murdered by the accused. Jayaram Tirkey is the younger brother of accused. On 25.06.1995, at about 11:00 a.m., Samara Tirkey (the deceased) is said to have abused Smt. Mangi the wife of Jayaram Tirkey (PW-1) on account of the alleged encroachment of Samara's land by the uncle of Jayaram, one Shri Daharu Kujur. On the next day, i.e. on 26.6.1995, Jayaram Tirkey alongwith his brother Megha Tirkey, the accused went to the house of Samara Tirkey, the deceased. Initially, Samara Tirkey was not available and Jayaram and Megha Tirkey enquired about his whereabouts with his wife Hauri (PW-3). In the meanwhile, Samara Tirkey reached over there. Jayaram Tirkey asked Samara as to why he had scolded Jayaram's wife in his absence. Samara Tirkey is said to have raised his hand towards Jayaram when accused Megha Tirkey dealt a lathi blow on the head of Samara Tirkey whereby he fell down. Thereafter, the accused Megha Tirkey gave two more lathi blows on his chest. When Hauri caught hold of the accused, he gave a lathi blow to her also and she received a lacerated wound on her forehead. Samara Tirkey was taken to the Raurkela Govt. Hospital, where he died on 27.6.1995 at about 2:00 p.m.

4. Megha Tirkey was charged under Section 302 and 323 IPC. The matter reached before the appellant on 21.03.1996 when he passed the following order:-

"Order No.8 dt. 21.03.1996

The accused is produced in custody by the escort party.

Learned Associate Lawyer who represents the State is present.

Learned Defence counsel is also present.

Learned Associate Lawyer opens the prosecution case by describing the charges brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The learned Defence counsel submits that there is complete absence of evidence to frame charge u/s 302 IPC and that the available evidence may bring at-best an offence u/s 304 IPC.

After hearing submissions of both sides in this behalf and on consideration of the materials available in the case diary, I find there is no sufficient material to frame charge u/s 302 IPC but there are sufficient materials against the accused for presuming that he has committed the offence u/s 304 IPC and 323 IPC.

Hence, charge u/s 304 IPC and u/s 323 IPC are framed against the accused. The charges being read-over and explained, the accused pleads not guilty and claimed to be tried.

The Defence does not admit the genuineness of the documents filed by the prosecution.

Put up on 25.4.96 for fixing a date of hearing of the Sessions trial.

Sd/-

Addl. Sessions Judge,

Rourkela,

21.