Orissa High Court
Hari Krushna Mohanty vs State Of Odisha .... Opp. Party on 19 November, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3929 of 2024
Hari Krushna Mohanty .... Petitioner
Mr.Dharanidhar
Nayak, Senior
Advocate
-versus-
State of Odisha .... Opp. Party
Ms. Sarita
Moharana, ASC
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 19.11.2024
02.
1.
In the present petition, the petitioner is aggrieved
by the order dated 05.09.2024 passed by the learned
C.J.M.-cum-Assistant Sessions Judge, Nabarangpur
in G.R. Case No.929 of 2019, whereby his application
under Section 91 of the Cr. P.C. has been rejected.
2. This Court, on 04.11.2024, had passed the order,
relevant portion of which is reproduced below:
"2. Mr. Nayak, learned Senior Counsel for the petitioner submits
that his client has moved an application under Section 91 of
Cr.P.C. for production of certain documents which were seized
during investigation and supposed to be form part of the
chargesheet. However, the said documents were not filed or
supplied to him.
3. Mr. Nayak, learned Senior Counsel has taken me to the
description of the properties/documents seized during
investigation, which indicates that on 29.11.2019 at 1.10 P.M., the
S.I., D.D. Mallick seized one register of Maa Bhandarghariani
Educational and Charitable Trust containing 90 pages. Out of
which, 19 pages were used and the said documents though seized
was not form part of the charge-sheet. Therefore, he moved an
application under Section 91 of Cr.P.C. before the Court below,
which has been rejected by the impugned order dated 05.09.2024."
3. Mr. Nayak, learned Senior Advocate has relied
upon the judgment of the Hon'ble Supreme Court in
the case of Nitya Dharmananda @ K. Lenin &
another vs. Sri Gopal Sheelum Reddy also known
as Nithya Bhaktananda and another reported in
2018 (2) SCC 93. Relying upon paragraph-9 of the
said judgment, Mr. Nayak, learned Senior Advocate
submits that the document, which is obviously a part
of the charge sheet as reflecting on the seizure list of
the charge sheet is a sterling document to
substantiate his case for discharge. Therefore, his
application under Section 227 of the Cr. P.C. seeking
discharge, which is pending, cannot be heard without
supplying the document, which is material for the
defence. Paragraph-9 of the said judgment is
reproduced under:
"9. Thus, it is clear that while ordinarily the Court has
to proceed on the basis of material produced with the
charge sheet for dealing with the issue of charge but
if the Court is satisfied that there is material of
sterling quality which has been withheld by the
investigator/prosecutor, the Court is not debarred
from summoning or relying upon the same even if
such document is not a part of the charge sheet. It
does not mean that the defence has a right to invoke
Section 91 Cr. P.C. de hors the satisfaction of the
Court, at the stage of charge."
4. Ms. Sarita Moharana, learned Additional
Standing Counsel appearing for the State fairly
submits that the document sought to be supplied to
the accused-petitioner has indeed been seized by the
police as reflecting from the charge sheet. If it forms
part of the charge sheet then under Section 207 of the
Cr. P.C., the petitioner, being an accused, is entitled
for the entire copy of the charge sheet along with the
documents. Having said that, she has relied upon the
judgment of the Hon'ble Supreme Court in the case of
State of Orissa vs. Debendra Nath Padhi reported
in 2005 (1) SCC 568. She has relied upon the
following paragraph of the said judgment which reads
as under:
"As opposed to the aforesaid legal position, the
learned counsel appearing for the accused contended
that the procedure which deprives the accused to
seek discharge at the initial stage by filing
unimpeachable and unassailable material of sterling
quality would be illegal and violative of Article 21 of
the Constitution since that would result in the
accused having to face the trial for long number of
years despite the fact that he is liable to be
discharged if granted an opportunity to produce the
material and on perusal thereof by the Court. The
contention is that such an interpretation of Sections
227 and 239 of the Code would run the risk of those
provisions being declared ultra vires of Articles 14
and 21 of the Constitution and to save the said
provisions from being declared ultra vires, the
reasonable interpretation to be placed thereupon is
the one which gives a right, howsoever, limited that
right may be, to the accused to produce
unimpeachable and unassailable material to show
his innocence at the stage of framing charge."
5. I have perused the judgments cited by Ms.
Maharana, learned State Counsel. I do not agree with
the contentions raised by Ms. Maharana because in
that case, the accused sought to be relied upon the
document, which was not part of the charge sheet.
But in the present case admittedly, the document
sought to be supplied by the prosecution under
Section 91 of the Cr. P.C. forms part of the charge
sheet.
6. Therefore, the learned trial Court has committed
procedural error by rejecting the application of the
petitioner under Section 91 of the Cr. P.C. particularly
because of the reasons that the application of the
petitioner under Section 227 of the Cr. P.C. seeking
discharge is pending.
7. In that view of the matter, the impugned order
dated 05.09.2024 passed by the learned C.J.M.-cum-
Assistant Sessions Judge, Nabarangpur in G.R. Case
No.929 of 2019 is quashed and the prosecution is
directed to supply one Register of Maa
Bhandarghariani Educational and Charitable Trust
containing 90 pages (which is appropriately described
in the property description in the charge sheet dated
26.11.2020).
8. The CRLMC is accordingly allowed and disposed
of.
(S.S. Mishra)
Judge
Subhasis
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack.
Date: 21-Nov-2024 10:12:20
