Orissa High Court
Kamala Kanta Jena vs State Of Odisha And Another on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.973 of 2021
Kamala Kanta Jena .... Petitioner
Mr. Himanshu Sekhar Mishra, Advocate
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. S.S. Mohapatra, ASC
Mr. Santanu Kumar Sarangi, Senior Advocate for O.P. No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:24.07.2023
1.
Instant petition under Section 482 Cr.P.C. is at the behest of the
petitioner assailing the impugned action pursuant to Annexure-2
and Annexures-2-A and order under Annexure-3, whereby, the
learned 1st Additional Sessions Judge,, Rourkela, Sundergarh
confirmed the framing of charge by the J.M.F.C., Rourkela against
him for the offences punishable under Sections 408, 420, 468 and
471 IPC while disposing of Criminal Revision No.11 of 2021 by an
order dated 22nd April, 2021 with a consequential direction to
redraw it in accordance with law.
2. The facts of the case are that a written report dated 5th April,
2013 was lodged at the Plantsite PS, Rourkela alleging therein that
the petitioner while was working as Branch Manager-cum-
Accountant was entrusted with the official work such as
withdrawal of cash from bank, delivery of consignment etc. and
in such capacity cheated the Economic Transport Organization
Limited, Rourkela Branch and in such capacity committed breach
of trust and also collected payments without intimating the
organization and having not deposited the same with their
Kamala Kanta Jena Vrs. State of Odisha and Another
bankers nor accounted for it and as a result, swindled away the
entire amount, inasmuch as, the money so misappropriated stood
at Rs.57,15, 474/- which was revealed after an audit report. As
against the FIR, on completion of investigation, the chargesheet
was submitted against the petitioner under the alleged offences,
whereupon, the court 1st instance proceeded to frame charge and
accordingly, it did so by order dated 27th January, 2021
(Annexure-2-A) which was challenged by him in Criminal Revision
No.11 of 2021 but the same was dismissed but with a direction to
redraw of charge. The framing of charge under Annexure-2-A and
its confirmation vide Annexure-3 is under challenge by the
petitioner on various grounds which are to be discussed
hereinafter.
3. Heard Mr. Mishra, learned counsel for the petitioner, Mr.
Mohapatra, learned ASC for the State and Mr. Sarangi, learned
Senior Advocate for the informant opposite party No.2.
4. Mr. Mishra, learned counsel for the petitioner assailed the
correctness of the impugned charge framed under Annexure-2-A
and its confirmation vide Annexure-3 essentially on the ground
that the same is a product of non-application of judicial mind by
the learned courts below. While advancing the argument in
support of the petitioner, Mr. Mishra referred to and relied upon
the following decisions, such as, Hemanta Kumar Patra Vrs. State
of Odisha 2012 (II) OLR 253; Union of India Vrs. Prafulla Kumar
Samal AIR 1979 SC 366; State of Haryana & Others Vrs. Ch.
Bhajan Lal & Others AIR 1992 SC 604; Madhu Limaye Vrs. State
of Maharashtra 1977 (4) SCC 551; Okila Luha Vrs. State of Odisha
1984 (I) OLR 585; Sibaram Sahoo Vrs. State of Odisha (Vig.)
2022(88) OLR 65; Prakash Mishra Vrs. State of Odisha and
Others 2015(61) OCR 830; Sanjaya Kumar Rai Vrs. State of U.P. &
Others 2021 OCR (83) SC 127; State of Karnataka Vrs. L.
Kamala Kanta Jena Vrs. State of Odisha and Another
Muniswamy & Others AIR 1977 SC 1489; Niranjan Singh Karam
Singh Panjabi and others Vrs. Jitendra Bhimaraj Bijje & Others AIR
1990 SC 1962 and Yogesh @ Sachin Jagdish Joshi Vrs. State of
Maharashtra decided in Appeal (Crl.) 744 of 2008 and disposed
of on 28th April, 2008. It is contended by Mr. Mishra that the
entire allegation of FIR when based on an audit report, no
conviction can lie as it cannot be considered to be a conclusive
proof of the allegations made and hence, the framing of charge
and confirmation thereof under Annexure-3 is not tenable in law
and continuation of the criminal proceeding against the petitioner
as such would amount to abuse of process of law and while
claiming so, he cited the decision of this Court in Hemanta Kumar
Patra (supra). With respect to framing of charge, Mr. Mishra refers
to Prafulla Kumar Samal (supra) highlighting upon the duty of a
court with the observation that it cannot merely a mouth piece of
the prosecution but has to consider the broad probabilities of the
case, the total effect of the evidence produced before it with any
basic infirmities appearing therein and so on reiterated in State
Bihar Vrs. Ramesh Singh reported in AIR 1977 SC 2018. That apart
the decision in Ch. Bhajan Lal (supra) is also cited by Mr. Mishra
while contending that inherent jurisdiction under Section 482
Cr.P.C. should be exercised, moreover when, the learned
J.M.F.C., Rourkela in a most mechanical manner without proper
judicial application of mind and following the principles which
are to be observed framed the charge under Annexure-2-A
without recording the satisfaction reached at as to the commission
of alleged offences by the petitioner.
5. On the contrary, Mr. Mohapatra, learned ASC for the State
would submit that after the FIR was lodged, investigation was
held and finally, the chargesheet was filed considering which the
learned J.M.F.C., Rourkela having arrived at a subjective
Kamala Kanta Jena Vrs. State of Odisha and Another
satisfaction with the material evidence on record rightly
proceeded to frame the charge. In other words, it is submitted
that after having gone through the chargesheet and all such
evidence referred to therein, the court was of the opinion that
there are grounds for resuming the petitioner to have committed
the alleged offences and hence, no illegality was committed with
the decision to frame charge confirmed in Criminal Revision No.11
of 2021, wherein, a detailed discussion was held with reference to
the ingredients of the offences and hence its calls for no
interference. Mr. Sarangi, learned Senior Advocate for opposite
party No.2 submits that after an elaborate investigation since the
chargesheet was furnished and it prima facie revealed the
involvement of the petitioner with the opinion expressed, the
learned J.M.F.C., Rourkela rightly decided to frame the charge
and accordingly, it was accomplished by order under Annexure-2-
A which was upheld by the Revisional court. It is contended by
Mr. Sarangi that a detailed enquiry is not required to be held at
the time of framing of charge and what is sufficient is making out
a prima facie case for enquiry and trial as the law is well settled
that truth of the allegations, veracity and effect of the evidence
proposed to be led by the prosecution during trial are not to be
scrutinized at such stage. It is, thus, contended by Mr. Sarangi that
since a prima facie case is apparently made out and in the
considered view of the learned J.M.F.C., Rourkela that the
allegations are required to be examined with reference to the
chargesheet and connected materials, no ground, therefore, exists
for any kind of interference in exercise of the Courts' inherent
jurisdiction.
6. In so far as the FIR is concerned, as it is made to understand,
the primary allegation against the petitioner is with regard to
misappropriation of fund of Rs.57,15474/- and it was ascertained
Kamala Kanta Jena Vrs. State of Odisha and Another
during an internal audit. The details of the facts and circumstances
leading to the lodging of the FIR have been described. It has been
alleged that the petitioner fabricated and forged challans and
collected the payments of the organization which were not
deposited subsequently with its bankers nor accounted for. With
all such mischief being alleged against the petitioner, who by then
was working as Branch Manager-cum-Accountant, the report was
lodged which thereafter led to submission of the chargesheet, as
earlier mentioned. The challenge is with regard to the framing of
charge against the petitioner which has been directed by the
Revisional court while disposing of Criminal Revision No.11 of
2021. In fact, it is made to reveal that the petitioner had
challenged the framing of charge by the court of 1st instance by
filing CRLREV No.82 of 2021 which was, however, disposed of
on 16th March, 2021 with the liberty allowed in his favour to
approach the Sessions court and exhaust the remedy and
accordingly, it was availed of and thereafter, it resulted in passing
of the impugned judgment dated 22nd April, 2021. So far as the
contention of Mr. Mishra, learned counsel for the petitioner is
concerned, it has been submitted that the learned J.M.F.C.,
Rourkela as well as the Revisional court fell into serious error and
committed material irregularity and without proper application of
the judicial mind and being oblivious of the principles decided by
the Apex Court in the decisions (supra) held and confirmed the
framing of charge followed by a direction for redrawal of charge
in accordance with law. It is contended that the essential
ingredients of the alleged offences have not been kept in mind at
the time of framing of charge without specifying the details,
inasmuch as, the charge was rather framed mechanically. It is
contended that the offences of cheating, criminal breach of trust
and forgery should have been specifically mentioned at the time
of framing of charge. It is claimed by Mr. Mishra, learned counsel
Kamala Kanta Jena Vrs. State of Odisha and Another
for the petitioner that since no such exercise was undertaken by
the court of learned J.M.F.C., Rourkela and Revisional court also
committed the wrong rather directed redrawal of the charge
head, the impugned orders under Annexure-2-A and 3 and
therefore, to be set aside in the interest of justice. It is rather
contended that the offences are not made out against the
petitioner and considering the FIR and other materials, the
charge was framed in a perfunctory manner and even though the
Sessions court found it so instead of setting it aside simply directed
redrawal charge that too while dismissing the revision. It is the
further contention that the material on record along with the
chargesheet should have been evaluated by the learned court
below to ascertain whether the ingredients of the alleged offences
are found to exist in order to frame charge against the petitioner.
That apart, according to Mr. Mishra, the allegations and filing of
chargesheet with the evidence against the petitioner cannot be
accepted as a gospel truth which is also the settled position of law
and where the role of a court is onerous since it deals with
framing of charge.
7. Though the Revisional court did not consider it to be a case
not to frame charge against the petitioner and therefore,
dismissed his challenge but directed the learned J.M.F.C.,
Rourkela to redraw the head of the charge to supplement the
necessary facts and figure and to rectify the error committed as a
result. Whether on the basis of an internal audit report, a
prosecution shall lie or otherwise would depend on the facts and
circumstances of a case. Of course merely by relying upon an
audit report, a conviction may not be sustained and in one of
such cases, this Court in Hemanta Kumar Patra (supra) held so
and quashed the order of cognizance in connection with a case of
misappropriation. In the said case, the account holder at whose
Kamala Kanta Jena Vrs. State of Odisha and Another
instance misappropriation against the accused was alleged later
stated on oath of having no grievance against the latter and that
he never misappropriated any such amount from his account,
considering which, in the peculiar facts and circumstances, the
order of cognizance was set aside by this Court. Referring to the
aforesaid judgment, in so far as the present case is concerned, a
similar conclusion cannot be drawn as there was prima facie
evidence found against the petitioner. Furthermore, the charge is
not to be held as groundless specially when the FIR and all the
materials submitted along with chargesheet alleged his
involvement in the misappropriation, truthfulness or otherwise of
the allegation would be a subject of trial. In Ch. Bhajan Lal
(supra), the Apex Court held and observed that in certain
circumstances only, inherent jurisdiction under Section 482
Cr.P.C. may be exercised and not always. The categories of cases
where extra-ordinary jurisdiction is exercisable have been detailed
by the Supreme Court in Ch. Bhajan Lal case. In the case at hand
in so far as the allegation against the petitioner is concerned, as
per the FIR and chargesheet, he was an employee of the
organization at the relevant point of time and was alleged of
misappropriation. It is not that the FIR does not reveal any
cognizable offences not to have been committed. Rather, the
allegations in the FIR have been found proved or prima facie
substantiated with the submission of the chargesheet. In fact, none
of the grounds as enumerated in Ch. Bhajan Lal (supra) has been
shown to exist while seeking quashment of the charge framed
against the petitioner. Mr. Sarangi, learned Senior Advocate for
opposite party No.2 raised an objection as to the exercise of
inherent jurisdiction under Section 482 Cr.P.C. as against the
order of the Sessions court since no second revision lies on the
premise that order of framing of charge can only be interfered
with if there is any glaring wrong or error apparent on the face of
Kamala Kanta Jena Vrs. State of Odisha and Another
the record. As to the principles to be followed while framing of
charge, the law is well settled and same has been reiterated by the
Apex Court time and again. This Court in Sibaram Sahoo (supra)
held that charge can be framed even on very strong suspicion
founded on the basis of material before the Magistrate. In the said
case, apart from the audit report, statements of the witnesses and
documentary evidence suggested that the accused therein was
entrusted with the collection and hence, a strong suspicion existed
against him for having committed the offences and by concluding
so upheld the decision of the High Court and declined to
discharge him. In State of Delhi Vrs. Gyan Devi (2008) SCC 239,
the Apex Court held that at the stage of framing of charge, the
trial court is not to examine details of the materials placed on
record by the prosecution nor is it for the court to consider
sufficiency of the materials to establish an offence alleged against
the accused. It is further held therein that at such stage, the court
is to examine the materials only with a view to be satisfied that a
prima facie case for commission of the offence alleged has been
made out. It is also well settled that when an accused invokes
inherent jurisdiction Section 482 Cr.P.C. seeking the charge to be
quashed, the Court should not interfere with the order unless
there are very strong reasons to reach at a different conclusion.
The Supreme Court very often observed that such an order can be
passed only in exceptional cases and on rare occasions. Similarly,
in Amit Kapoor Vrs. Ramesh Chandra and Another (2012) 9 SCC
460, the Apex Court held that while exercising power under
Section 397 Cr.P.C. as the object of the provisions is to set right
the patent defect or error of jurisdiction or law, it may not be
appropriate for a court to scrutiny the orders which upon the face
of it based on a token of careful consideration and appear to be
in accordance with law. In so far as the Revisional court is
concerned, in the instant case, the materials on record have been
Kamala Kanta Jena Vrs. State of Odisha and Another
duly taken cognizance of while reaching at a conclusion that a
charge is required to be framed against the petitioner, however,
in order to fill the lapses in the charge head, directed the learned
J.M,F.C., Rourkela the redraw the same. So therefore, in the
considered view of the Court, the jurisdiction has been rightly
exercised and in absence of any serious error having been
committed, no ground exists to interfere with the same. In so far
as the alleged offences are concerned, as the details were not
placed on record and confronted to the petitioner as it also
involved criminal breach of trust, hence, the Revisional court
directed redrawal of the charge. So to say, the concern of the
petitioner was attended and addressed by the Revisional court
but the contention that there is no case made out against him did
not find favour with which according to the Court may not be
unreasonable if the entire evidence is gone through. On a bare
look without being indulged in material scrutiny, it would suggest
that the petitioner was in-charge of accounts at the relevant point
of time and was alleged of misappropriation when he had
received the collections of the organization but did not account it
for.
8. Mr. Sarangi, learned Senior Advocate for the opposite party
No.2 submitted that if two views are possible and one of them
gives rise to suspicion only as distinguished from grave suspicion,
it would be a case for discharge that being the settled legal
position. It is also submitted that a trial court is not a mute
spectator and that apart, he has to shift and weigh the evidence in
order to find out whether or not there is sufficient ground to
proceed against the accused and if evidence proposed by the
prosecution even if fully accepted before being challenged or
rebutted by defence evidence cannot show that the accused
committed the offence, under such circumstances, the proceeding
Kamala Kanta Jena Vrs. State of Odisha and Another
may have to be quashed with a discharge and while considering
all such aspects, the court is to take judicial notice of the broad
probabilities, however, it not entitled to make a roving inquiry
pros and cons and while contending so, he cited a decision of the
Supreme Court in the case of P. Vijayan Vrs.State of Kerala &
Another (2010) 2 SCC 3981 besides another authority in M.E.
Shivalingamurthy Vrs. Central Bureau of Investigation (2020) 2
SCC 786. In fact, the line of argument of Mr. Sarangi, learned
Senior Advocate is primarily based on the principles enunciated
by the Apex Court in the above decisions referred to. One more
decision in case of Main Pal Vrs. State of Haryana AIR 2010 SC
3292 is placed reliance on by Mr. Sarangi which is with regard to
the framing of charge vis-à-vis the duty and responsibility of a
court. In the said decision, it has been held that the object of
framing of a charge is to enable an accused to have a clear idea of
what he is being tried for and of the essential facts that he has to
meet and the charge must also contain the particulars of date,
time and place and person against whom the offence was
committed as are reasonably sufficient to give him notice of the
matter with he is charged since law enjoins that the charge must
reflect certainty and accuracy. There is no quarrel over the legal
position that at the time of framing of charge, a roving enquiry or
meticulous scrutiny of the material on record is to be undertaken
but only a satisfaction to be reached at that the offences are prima
facie established against the accused. The aforesaid principles of
law has been reiterated by the Apex Court in one of its earlier
judgment reported in the case of State of Bihar Vrs. Ramesh Singh
AIR 1977 SC 2018, wherein, it has been held that on a combined
reading of Sections 227 and 228 Cr.P.C.in juxtaposition to each
other, it is crystal clear that at the beginning stage, truth and
veracity of evidence which the prosecution is supposed to adduce
not to be meticulously thrashed out; so also no weight can be
Kamala Kanta Jena Vrs. State of Odisha and Another
attached to the probable defence of the accused and furthermore,
it is not obligated for the court to consider in detail and weigh the
evidence and to reach at a conclusion whether the facts on record
do prove innocence of the accused or not. On the anvil of the
above settled position of law in so far as the case of the petitioner
concerned and since the allegations are primarily documentary
based and at the end of investigation, it resulted in submission of
chargesheet, where there appeared no glaring or patent error
noticed, rightly the learned J.M.F.C., Rourkela proceeded to
frame the charge but having failed in its duty for not placing all
the facts and details in relation to the mischief committed, it was
duly rectified by the Revisional court. In other words, the learned
court below did not commit any serious wrong or illegality by
reaching at a conclusion that the case for framing of charge is
made out but charge head is required to be redrawn and hence,
therefore, no compelling reasons do exist to interfere with the
impugned judgment under Annexure-3.
9. Accordingly, it is ordered.
10. In the result, the CRLMC stands dismissed.
(R.K. Pattanaik)
Judge
TUDU
Signature Not Verified
Digitally Signed
Signed by: THAKURDAS TUDU
Reason: Authentication
Location: OHC,CTC
Date: 25-Jul-2023 18:01:55
