Debaprasad Mishra vs State Of Odisha
2021 Latest Caselaw 9432 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No. 345 of 2021


              Debaprasad Mishra                  ....          Appellant

                                  Mr. J.K. Panda, Advocate

                                     -versus-
              State of Odisha                    ....     Respondent

                                  Mr. Bibekananda Bhuyan,
                                  Special Counsel (OPID)
                                    CORAM:

                              JUSTICE S.K. SAHOO
                                    ORDER

Order No. 09.09.2021

07. This matter is taken up through Hybrid Arrangement (Video Conferencing/Physical Mode).

Heard Mr. Jugal Kishore Panda, learned counsel appearing for the appellant Debaprasad Mishra and Mr. Bibekananda Bhuyan, learned Special Counsel appearing for the State of Odisha in OPID Act matters.

In this criminal appeal filed under section 13 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter 'O.P.I.D. Act'), the appellant has challenged the orders dated 14.12.2020 and 08.03.2021 passed in C.T. Case No.15 of 2015 by the learned Presiding Officer, Designated Court under the O.P.I.D. Act, Cuttack.

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Mr. Jugal Kishore Panda, learned Advocate appearing for the appellant submitted that on 06.04.2016, the first charge was framed against the appellant for commission of offences under sections 420/467/468/471/406/120-B of the Indian Penal Code and section 6 of the O.P.I.D. Act. The said framing of charge was challenged by the co-accused Dhirendra Kumar Khandelwal before this Court in CRLA No.549 of 2016 and this Court vide order dated 30.01.2019 has been pleased to set aside the charges framed against the said co-accused and directed the learned trial Court to hear the said co-accused on the question of charge afresh including the other accused persons against whom charge has also been framed jointly, if the Court so desires.

The learned Advocate further submitted that on the basis of the order passed by this Court in CRLA No.549 of 2016, the learned trial Court on 21.11.2019 after hearing both the sides, framed charge against the appellant and the co-accused Dhirendra Kumar Khandelwal only under section 120-B of the Indian Penal Code. The co-accused Dhirendra Kumar Khandelwal has challenged the said order of framing of charge before this Court in CRLA No.519 of 2019 and the appellant has also challenged the said order in CRLA No.337 of 2021 and both the CRLA are subjudiced before this Court. It is submitted that on

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05.12.2019, the learned Special Public Prosecutor filed a petition under section 216 of Cr.P.C. before the learned trial Court to alter the charge framed under section 120-B of the Indian Penal Code on 21.11.2019 and to frame additional charges for the offences under sections 467/468/471/420/405/ 120-B of the Indian Penal Code read with sections 4/5/6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and section 6 of the O.P.I.D. Act. The appellant filed his objection to the said petition under section 216 of Cr.P.C. The learned trial Court vide impugned order dated 14.12.2020 has been pleased to frame charges against the appellant and the co-accused Dhirendra Kumar Khandelwal under sections 467/468/471/420/406/ 120-B of the Indian Penal Code read with section 6 of the O.P.I.D. Act, which is the subject matter of challenge in the present appeal.

It is contended by the learned counsel for the appellant that when charge was framed against the appellant on 21.11.2019 only under section 120-B of the Indian Penal Code and the said framing of charge has not been challenged by the State before this Court which shows that the State was not aggrieved and when this Court is in seisin over the matter and the framing of charge as per order dated 21.11.2019 at the instance of the co-accused Dhirendra Kumar Khandelwal was under challenge, it was not proper on

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the part of the learned trial Court to entertain a petition under section 216 of Cr.P.C. filed by the State and also to alter the charges and frame charges under higher offences. It is also argued that there was no change in the circumstances in between the framing of the charge under section 120-B of the Indian Penal Code on 21.11.2019 and when additional charges were framed on 14.12.2020. The learned counsel for the petitioner made a specific submission that some witnesses were examined during trial after the first charge was framed and prior to the framing of charge under section 120-B of the Indian Penal Code on 21.11.2019 but thereafter, till the charge was altered on 14.12.2020, no further witnesses have been examined.

Learned counsel for the State was asked to obtain instruction as per order dated 15.04.2021 in the CRLA No.180 of 2021 filed by co-accused Dhirendra Kumar Khandelwal challenging the self-same orders as challenged in this appeal, as to whether any prosecution witnesses were examined in between 21.11.2019 and 14.12.2020 or not.

Those dates are very much relevant as on 21.11.2019, the charge was framed against the petitioner and the co-accused under section 120-B of the Indian Penal Code and on 14.12.2020, the charge was altered and charges under higher offences under

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sections 467/468/471/420/406/120-B of the Indian Penal Code read with section 6 of the O.P.I.D. Act were framed.

Learned Special Counsel appearing for the State of Odisha in OPID Act matters submitted that no further witnesses were examined in between 21.11.2019 and 14.12.2020. However, he submitted that there are enough materials on record, both oral as well as documentary evidence to frame such additional charges and therefore, it cannot be said that the learned trial Court has committed any illegality in framing those additional charges by the impugned order dated 14.12.2020.

Mr. J.K. Panda, learned Advocate appearing for the appellant submitted that in absence of any change in the circumstances in between 21.11.2019 and 14.12.2020, it was not proper on the part of the learned trial Court to entertain such a petition filed by the learned Special Public Prosecutor to alter the charges and by altering the charges, the learned trial Court has virtually restored the charges framed at the first instance, which has been set aside by this Court in CRLA No.549 of 2016 as per order dated 30.01.2019.

Adverting to the contention raised by the learned counsel for the respective parties, let me now discuss the provision under section 216 of Cr.P.C.

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which deals with the alteration of the charges by the Court, which reads as follows:

"216. Court may alter charge:- (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or additional shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made proceed with the trial as it the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such

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sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

In view of such provision, it is very clear that at any time before pronouncement of the judgment, a Court has got power to alter or add the charges and if such alteration or addition is made, what has to be done by the learned trial Court has been enumerated in sub-sections (2) to (5).

Law is well settled that the Court has got power to make alteration or addition to the charge already framed when there is evidence in support of the same and the circumstances of the case justify.

It is not in dispute that after this Court set aside the order of first framing of charges and directed the learned trial Court to again decide the matter after hearing the appellant on the question of framing of charges afresh and in compliance to this Court's order, the learned trial Court framed the charge only under section 120-B of the Indian Penal Code. If the State was aggrieved by such framing of charge, it could have challenged the same before this Court but the same having not been done, the prosecution should have waited till some additional materials are brought on record either by adducing oral evidence of some

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witnesses or by proving some documentary evidence before making an application under section 216 of Cr.P.C. to alter the charges or to add the charges.

Since no witnesses have been examined in between 21.11.2019 to 14.12.2020, therefore, there was no change in the circumstances between the passing of those two orders i.e. 21.11.2019 and 14.12.2020. In absence of any change in the circumstances or any additional materials against the appellant to make out a ground for altering the charge or adding the charges, the recourse taken by the learned Special Public Prosecutor in filing the application under section 216 of Cr.P.C. was not justified and proper and by entertaining such an application and altercating the charges and adding charges, the learned trial Court has committed illegality.

It is contended by the learned Special Counsel for the State that the case involves misappropriation of Rs.50,00,000/- (rupees fifty lakhs) by the appellant, for which there are documentary evidence as well as oral evidence available on record. Needless to say, if the evidence is adduced in that respect before the learned trial Court and appropriate application is filed, the learned trial Court can take into account such materials and after giving opportunity of hearing to the appellant can pass any order in accordance with law,

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to which this Court is not expressing any opinion whatsoever.

In view of the foregoing discussions, I am of the humble view that the impugned order dated 14.12.2020 in framing the charges against the petitioner under sections 467/468/471/420/406 of the Indian Penal Code read with section 6 of the O.P.I.D. Act is not sustainable in the eye of law which is hereby set aside. The appellant shall continue to face trial for the offence under section 120-B of the Indian Penal Code subject to the result of his appeal vide CRLA No.337 of 2021.

In view of foregoing order, the order dated 08.03.2021 passed by the learned trial Court relating to the appellant in rejecting the petition for discharge for the offences under sections 467/468/471/420/406 of the Indian Penal Code read with section 6 of the O.P.I.D. Act is hereby set aside.

Accordingly, the CRLA is allowed.

A copy of the order be communicated to the learned trial Court.

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

( S.K. Sahoo) Judge

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