Sri Pawan Kumar Agrawal vs State Of Odisha
2023 Latest Caselaw 8966 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLREV No.204 of 2023

     In the matter of an application under section 397 read with
     section 401 of the Code of Criminal Procedure, 1973 and from the
     order dated 17th February, 2013 passed by the learned Judicial
     Magistrate First Class, Balangir, in G.R. Case No.441 of 2013.
                                      ----

          Sri Pawan Kumar Agrawal              ....        Appellant

                                   -versus-

          State of Odisha                     ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                 For Appellant     -     Mr.Sudipto Panda
                                         (Advocate)

                 For Respondent -        Mr.Sitikant Mishra,
                                         Additional Standing Counsel
     CORAM:
     MR. JUSTICE D.DASH

    Date of Hearing : 28.06.2023       : Date of Judgment:10.08.2023

D.Dash,J. The Petitioner, by filing this Revision, has called in question

the legality and propriety of an order dated 17.02.2023 passed by

the learned Judicial Magistrate First Class (JMFC), Bolangir in G.R.

Case No.441 of 2013.

2. The Petitioner being arraigned as an accused in Tusura P.S.

Case No.106 of 2013 giving rise to G.R. Case No.441 of 2013 under

section 379/411 of the Indian Penal Code, 1860 (for short 'the IPC')

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was placed in the Final Form submitted after completion of

investigation to face the trial for the said offence.

3. The petitioner filed an application under section 239 of the

Code of Criminal Procedure (for short 'the Cr.P.C.) for his

discharge. The Petition has been rejected by the order which has

been impugned in this Revision in holding that there is prima facie

ground for presuming that the accused had committed the offences

under section 379/411 of the IPC and section 7 of the Essential

Commodities Act (for short 'the E.C Act).

4. Mr.Sudipto Panda, learned counsel for the Petitioner

submitted that in the meantime, in view of the conclusion arrived

at by the learned Collector, Bolangir in E.C Case No.06 of 2013

initiated for confiscation of the seized vehicle and essential

commodities, there surfaces no prima facie case to presume this

Petitioner to have committed the offence under section 379/411 of

the IPC and section 7 of the E.C Act. He further submitted that

when in that proceeding for confiscation, it has been said that the

prosecution has failed to prove that this Petitioner has violated any

of the conditions of the Odisha Public District System (Control)

Order, 2008 (for short, 'the OPDS Control Order'), there remains no

scope for framing of the charge for under section 7 of the E.C Act.

Inviting the attention of this Court to the materials available on

record, he contended that no ground to presume that the Petitioner

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has committed the offence under section 379/411 of the IPC

emerges therefrom.

5. Mr.Sitikant Mishra, learned Additional Standing counsel for

the State submitted that even though the learned Collector has

come to a conclusion in that confiscation proceeding that the

prosecution has failed to prove that the Petitioner has violated with

the condition of the OPDS Control Order entailing confiscation of

the seized essential commodities and the truck used for

transportation of the said essential commodities, said order cannot

be taken advantage of in seeking discharge of the Petitioner in the

criminal case initiated by the Police.

6. This Court is in the seisin of the revision filed by the

Petitioner in questioning the sustainability of an order passed by

the Trial Court, refusing thereby to discharge the Petitioner in

putting an end to the criminal trial in so far as he is concerned. At

this juncture, before proceeding to dwell upon the contention in the

foregoing paragraphs, it would be apt to take note of the settled

principles of law in the matter of consideration of the application

filed by the accused seeking discharge in the criminal case.

The principles of law are too well settled that while

answering the question of framing the charges, a duty is cast upon

the Court to consider the record of the case and documents

submitted therein. In that exercise, if the decision is to discharge

CRLREV No.204 of 2023 {{ 4 }}

the accused under section 227 of the Code of Criminal Procedure

(in short, 'the Code'), the Court is called upon to give a definite

opinion for said discharge. Meaning thereby, that if the Court

considers that there is no sufficient ground for proceeding against

the accused, it shall discharge the accused after recording the

reasons for doing so. The language of section 227 of the Code

makes it clear that the Court cannot proceed merely on

presumption and therefore, the word 'considers' finds place

therein.

The next parameter is that if after considering the record of

the case and the documents submitted there with and hearing in

that behalf, the Court exercises the power to frame charges against

the accused under section 228 of the Code, said view is tentative.

Meaning thereby, that if the Court is of the opinion that there is

ground for even presuming that the accused has committed an

offence, he shall frame the charge in writing.

7. It has been held in case of State of Bihar V.Ramesh Singh; AIR

1977 SC 2018 that at this initial stage, truth, veracity and effect of

the evidence which the prosecutor proposes to adduce are not to be

meticulously judged upon their critical analysis. It is not obligatory

at the stage to consider in any detail and weigh in a sensitive

balance whether the facts if proved would be incompatible with the

innocence of the accused or not.

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8. In case of Amit Kapoor V. Ramesh Chander; (2012) 53 OCR

(SC) 74: (2012) 9 SCC 460, it has been held that at the stage of

framing the charges, the Court is not concerned with the proof,

when upon careful perusal of the materials placed, there arises

strong suspicion in the mind of the Court that the accused has

committed the offence, which if put to trial could prove him guilty,

the Court would be justified in proceeding with the trial by framing

the charge. Here however the rile of caution comes into play that

mere suspicion is not enough and the suspicion founded upon the

materials on record must be of strength persuading the Court to

form a prima facie opinion justifying the trial as those when proved

may lead to a result in favour of the prosecution.

9. The crystallized judicial view is that at the stage of framing

charge, the Court has to prima facie consider whether there is

sufficient ground for proceeding against the accused and the Court

for the purpose is not required to appreciate the evidence to

conclude whether the materials produced are sufficient or not for

convicting the accused. Ref:-State of M.P. v. Mohanlal Soni; (2000) 6

SCC 338.

10. In the recent case in M.E.Shivalinga Murthy V. Central

Bureau of Investigation, Bengaluru; (2020) 77 OCR (SC) 935: (2020)

2 SCC 768, the Hon'ble Apex Court referring the earlier decisions

including the one in case of P.Vijayan V. State of Kerala and

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Another; (2010) 45 OCR (SC) 646: (2012) 2 SCC 398 have discerned

the following principles.

"i. if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial judge would be empowered to discharge the accused;

ii. the Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution;

iii. the judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court;

iv. if the evidence, which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence, then, there will be no sufficient ground for proceeding with the trial;

v. it is open to the accused to explain away the materials giving rise to the grave suspicion;

vi. the Court has to consider the board probabilities, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, would not entitle the Court to make a roving inquiry into the pros and cons;

vii. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true; and

CRLREV No.204 of 2023 {{ 7 }}

viii. there must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused."

The defence version not based upon the deriving no support

from the materials or documents placed by the prosecution is not to

be looked into at the stage when the accused seeks discharge. The

'record of the case' used in section 227 of the Code is to be

understood as the documents and articles, if any produced by the

prosecution.

11. In the backdrop of the above, it becomes necessary to address

the rival contentions with reference to the documents placed on

record being gone through. Indisputably, learned Collector in

session of the proceeding under section 6-A of the E.C. Act for

confiscation of the truck, rice and green gram seized in connection

with the case has passed the final order on 24.07.2014.

12. Relevant facts giving rise to the case is that on 13.07.2013 on

the allegation that rice was being transported in the truck bearing

Registration No.OR-14L-1549; the said truck with rice and green

gram were seized. Then it came into light that the rice bags having

been loaded from the godown of one Sundarlal Agrawal of

Kantabanjhi, were carried to Jharsuguda. The bill produced by the

driver in support of purchase of 200 bags of rice was seized and as

263 bags of rice were loaded in the truck, in the absence of

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satisfactory explanation as to rest 63 bags of rice and green gram ,

the I.O suspected illegal transportation of rice, green gram in the

said truck and thus for contravention of the provisions containing

in OPDS (Control) Order, 2008 leading to commission of offence

under section 7 of the E.C. Act, the truck and the transported

commodities were seized. Simultaneously, there was initiation of

the proceeding for confiscation of the seized truck as well as the

commodities (rice and green gram) recovered therefrom.

In that proceeding, there was interim release of the truck on

deposit of cash security and other securities and the essential

commodities being subject to speedy and natural decay had been

sold and the sale proceeds was kept in deposit pending disposal of

the proceeding. Notice was issued to the purchaser of the said

commodities, the owner of the truck and this Petitioner, the

vendor. The learned Collector, after hearing in that statutory

proceeding, has finally passed the following order.

"xxxx xxxx xxx xxxx "In the premises as aforesaid, I am led to the conclusion that the prosecution has failed to prove that the O.Ps have violated condition of the OPDS (Control) Order, 2008 entailing confiscation of the seized rice along with truck. In the result, the seized 263 bags of rice is not liable for confiscation to the State for violation of control order and should be released to O.P No.2. The sale proceeds of seized rice and green gram be refunded to the O.P.N.2 on proper acknowledgement. Consequently, the seized truck bearing regd. No.OR-14-AL-1546 is also not liable for confiscation and is discharged of criminal

CRLREV No.204 of 2023 {{ 9 }}

liability. The cash security of Rs.75,000/- be refunded ti O.P.No.4 on proper acknowledgment. Copy of the order be communicated to the C.S.O, Balangir to ensure compliance after the appeal period is over."

13. Provision of section 6(A) says that the Collector if satisfied

that there has been a contravention of the order made under

section 3 of the E.C. Act, may order for confiscation of the essential

commodities so seized and the vehicle used in carrying such

essential commodities. Section 6(B) of the Act provides for

issuance of show cause notice to the owner of the essential

commodities and vehicle informing the grounds on which it is

proposed to confiscate the essential commodity and vehicle and

then giving opportunity of making representation and reasonable

opportunity of hearing in the matter of the confiscation.

The provision contained in sub section 3 of section 6 of the

Act says that where the essential commodity being subject to

speedy and natural decay or it is felt otherwise expedient in the

public interest, those may be sold and the sale proceeds thereof

after deduction of the expenses of any such sale, where no order of

confiscation is passed by the Collector or where an order passed

on appeal under sub section 6(C) so requires, or where in a

prosecution instituted for the contravention of the order in respect

of which an order of confiscation has been made under the section,

the person concerned is acquitted, be paid to the owner threreof or

the person from whom seized.

CRLREV No.204 of 2023 {{ 10 }}

Thus the provisions as above are clear that even where the

Collector passes the order of confiscation of the essential

commodities and vehicle used for transportation of said essential

commodities for the person concerned is acquitted in the criminal

case, instituted simultaneously, the order of confiscation would

remain the subject and surrender to the said order of acquittal.

However, in the case at hand the learned Collector has

refused to confiscate the essential commodities and the vehicle

used for transportation of said commodities in holding that there

is no contravention of any order and thus no commission of the

offence under section 7 of the EC Act. The sale proceeds of the

essential commodities have been paid to the owner and the vehicle

has also been released without keeping any change.

14. In a number of judgments, the Hon'ble Apex Court have held

that the standard of proof in a departmental proceeding, being

based on preponderance of probability is somewhat lower than the

standard of proof in a criminal proceeding which require proof of

the case beyond reasonable doubt.

15. In P.S. Rajya V. State of Bihar; (1996) 9 SCC1, the Petitioner

therein had contended that the issue in the criminal proceeding is

identical to the departmental proceeding and when the very issue

could not be established in the departmental proceeding, the

department is not permitted to pursue the same charge in the

CRLREV No.204 of 2023 {{ 11 }}

criminal proceeding. The question posed before the Hon'ble Apex

Court was:

"Whether the respondent is justified in pursuing the prosecution against the appellant under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission."

Going to answer the above question, the Hon'ble Apex Court

observed:-

"At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it.

In the background, the Hon'ble Court held that:-

"Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We

CRLREV No.204 of 2023 {{ 12 }}

have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27.3.1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs."

16. In case of G.L.Didwania v.ITO; 1995 Supp.(2) SCC 724; the

appellant therein was an assessee and had shown his business

income from firms in Delhi and Bombay. There was another firm,

M/s.Young India and Transport Company wherein the minor

children of the appellant and two of his employees were partners.

The firm was said to be not a genuine one and the instrument of

partnership was attacked therein as invalid and inoperative. The

appellant thus faced proceeding under section 147 and 148 of the

Income tax Ac and his assessment was reopened and finally with

his income, the income of M/s. Young India and Transport

Company was added. The statement made by the appellant,

prosecution was launched and the complaint by the authorized

authority was filed. Meanwhile, in the appeal before the Income

Tax Appellate Tribunal, the order of the Assessing Officer was set

aside holding that the premises upon which the assessing

authority has concluded that the business run in the name of

M/s.Young India and Transport Company belonged to the assessee

i.e.G.L.Didwania are erroneous and not acceptable. This when

CRLREV No.204 of 2023 {{ 13 }}

attained finality, the appellant moved for dropping the

prosecution. The learned Magistrate rejected the prayer saying that

the prosecution has got a right to lead evidence in support of the

complaint and the Court can come to the conclusion whether or not

criminal offence is made out. It was further observed that the order

of the Tribunal can be taken only as evidence. The High Court

having also dismissed the application in limine, there was a move

before the Hon'ble Apex Court. The Hon'ble Apex Court then went

to answer whether the prosecution can be sustained in view of the

order passed by the Tribunal. It was held that:-

"As noted above, the assessing authority held that the appellant assessee made a false statement in respect of income of M/s.Young India and Transport Company and that finding has been set aside by the Income Tax Appellate Tribunal. If that is the position then we are unable to see as to how the criminal proceedings can be sustained."

17. Factual settings of the case of Radheshyam Kejriwal V. State

of West Bengal and Another 2011 3 SCC 581 cited by the learned

counsel for the petitioners at this juncture need little elaboration.

The Officers of the Enforcement Directorate in exercise of the

power under section 35 of the Foreign Exchange Regulation Act,

1973 (for short 'the FERA') searched various premises in

occupation of the appellant besides other persons. The appellant

was arrested and then released on bail. On being asked to appear,

he gave his statements.

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Based on the materials collected during search and from the

statement of the appellant, he was found to have contravened the

provisions of section 9(1)(f)(i) of the FERA as also liable to pay

penalty under section 50 of the FERA. The Enforcement Directorate

was of the further opinion that by abetting as to contravention of

the provisions of section 9(1)(f)(i) and section 8(2) read with section

64(2) of the FERA, the appellant has rendered himself liable for

penalty under section 50 of the FERA. Accordingly, show-cause

notice being issued, adjudication proceeding under section 51 of

the FERA was initiated. The adjudication officer came to conclude

that the charges against the appellant were not sustainable.

Accordingly, the adjudication officer dropped the adjudicatory

proceeding. This order was not further challenged by the

Enforcement Directorate. However, on the same allegation which

was the subject matter of adjudication proceeding the Directorate

filed a complaint against the appellant for prosecution under

section 56 of the FERA in the Court of law.

In the above state of affair, the appellant filed an application

for dropping the criminal proceeding inter alia contending that on

the same allegation. The adjudication proceedings having been

dropped and he has been exonerated therefrom, his continued

prosecution is an abuse of process. The Trial Court repelled the

contention and rejected the petition filed in that behalf. The High

CRLREV No.204 of 2023 {{ 15 }}

Court being approached also did not countenance with the

contention. It then observed as under:-

"Therefore, the contention of Mr. Ghosh is unacceptable that in the adjudication proceedings being held by the department concerned the allegations against the petitioner having not been found established the prosecution against him before a Court of law cannot have any legs to stand upon, since the same departmental authority which held the enquiry against him and found no materials for establishing his guilt cannot be expected to lodge the prosecution on the self- same allegations against that person before a Court and cannot be expected to take a different stand on the self- same materials as available against him on the record."

The Hon;ble Apex Court having discussed the relevant

statutory provisions contained in FERA and upon perusal of

plethora of decisions of the Court held as follows:-

"We may observe that standard of proof in a criminal case is much higher than that of the adjudication proceeding. The Enforcement Directorate has not been able to prove its case in the adjudication proceeding and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceeding cannot be said to be irrelevant in the criminal case. In the case of B.N. Kashyap [AIR 1945 Lah 23] the full Bench had not considered as to the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage from the said judgment :

"I must, however, say that in answering the question, I have only referred to civil cases where the

CRLREV No.204 of 2023 {{ 16 }}

actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41, Evidence Act, will have to be carefully examined."

xxx xxx xxx"

We do not have the slightest hesitation in accepting the broad submission of Mr. Malhotra that finding in adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceeding can not necessarily be held guilty in criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case entire burden to prove beyond all reasonable doubt lies on the prosecution.

xxxxxx xxxxxxx xxxxxxxx"

It is trite that standard of proof required in criminal

proceedings is higher than that required before adjudicating

authority and in case accused is exonerated before the adjudicating

authority whether his prosecution on same set of facts can be

allowed or not is the precise question which falls for determination

in this case.

18. Then referring to various judgments cited therein and the

factual settings under which those have been rendered, the Hon'ble

Apex Court have culled out the ratio of those decisions in

paragraph 38 which are reproduced herein below:-

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The ratio which can be culled out from these decisions can

broadly be stated as follows :-

"(i) Adjudication proceeding and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution;

(iii) Adjudication proceeding and criminal proceeding are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases."

Then the final conclusion was:-

"In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication

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proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned shall be an abuse of the process of the Court."

19. Keeping in view the aforesaid principles and discussions

already made above in detail, let us advert the case on hand as to

its broad features. Here the confiscation proceeding has been

dropped on the ground that there has been no violation of any of

the provisions contained in OPDS (Control) Order, 2008. Learned

Collector, after conducting full-fledged enquiry, as envisaged in the

E.C. Act and upon hearing the parties has arrived at a conclusion in

that regard. Fact remains that pursuant to the order passed by the

learned Collector, the seized the truck has finally been released in

favour of its owner and the sale proceeds of the rice and green

grams which had been deposited with the state exchequer have

accordingly been refunded. The order passed by the learned

Collector in holding that the seized truck rice and green gram are

not liable to be confiscated to the State is with the finding that there

was no violation of the provision of OPDS (Control) Order, 2008

necessiating the seizure and consequentially, the contravention of

the provision of E.C. Act has not been found out. The prosecution is

based on same set of facts which formed the foundation of the

confiscation proceeding and in fact both had arisen from that very

seizure on the allegation of contravention of OPDS (Control) Order,

2008 leading to commission of offence under section 7 of the E.C.

Act.

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20. Upon careful reading of the order of the learned Collector

and the Final Form submitted in the Criminal Case, it would thus

not be permissible to say that the present case is not the one where

it could be said that the order of the Confiscating Authority

(Collector), in refusing to confiscate the essential commodities and

the truck used for transportation of the said commodities on the

same set of facts, which form the foundations of this criminal case

is based on technical grounds or by giving the benefit of doubt

wherein the merits have not been touched upon and examined and

that only on the above stated grounds, the Confiscating Authority

(Collector) has refused to confiscate the essential commodities and

the truck used for transportation of the same.

Given case is founded upon the allegation that the essential

commodities which were transported in the truck in question

belonged to the State, which has not been found by the learned

Collector. Fact also stands that none else has come forward to claim

the ownership of the same in making any allegation that those had

been removed from their possession/custody without their

knowledge and consent causing wrongful loss to them. It is also

not stated that the Petitioner intending to take those essential

commodities dishonestly out of the possession of any persons

without any person's consent moved said essential commodities in

order to such taking.

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In the wake of all the aforesaid, this Court is of the

considered view that the order dated 17th February, 2023 passed by

the learned J.M.F.C., Balangir, which has been impugned in this

Revision cannot be sustained.

21. Accordingly, the order dated 17th February, 2023 passed by

the learned J.M.F.C., Balangir is hereby set aside and it is directed

that the Petitioner be discharged from the said case.

22. The Revision is disposed of accordingly.

(D. Dash), Judge.

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 17-Aug-2023 17:42:46

CRLREV No.204 of 2023