Orissa High Court
Gatanatha Mallick @ Mallik vs State Of Orissa .... Opposite Party (S) on 11 April, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 22-Apr-2025 18:25:26
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.740 of 2024
(From the order dated 12.11.2024 passed by the learned Additional
Sessions Judge-Cum- Special Court under OPID Act, Cuttack in S.T.
Case No.231 of 2024)
Gatanatha Mallick @ Mallik .... Petitioner (s)
& Anr.
-versus-
State of Orissa .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Shibani Shankar Pradhan, Adv.
For Opposite Party (s) : Miss Gayatri Patra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-20.02.2025
DATE OF JUDGMENT: -11.04.2025
Dr. S.K. Panigrahi, J.
1. This CRLREV is directed against the order dated 12.11.2024 passed by
the learned Additional Sessions Judge-Cum- Special Court under OPID
Act, Cuttack in S.T. Case No.231 of 2024 rejecting the application of the
Petitioners to discharge them of the charge framed for commission of
offences under Sections 147/ 148/ 302/ 435/ 120(B) of the I.P.C.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts necessary for disposal of this CRLREV are as follows:-
Location: ORISSA HIGH COURT, CUTTACK
(i) On 13.02.2017 at about 9 PM when the father of the informant was
returning to his residential house, the co-accused Rabindra Kumar
Mallick and two others stopped his motorcycle and abused the father of
the informant in filthy languages. Thereafter, the accused Rabindra
Kumar Mallick placed one revolver on the head of the father of the
informant, whereas, other two co-accused placed one pharsa on his
neck, where after, they assaulted him on his head by means of 'Thenga'.
At that time other co-accused persons present there also started
assaulting him as a result of which he sustained severe bleeding
injuries. During course of treatment in a private hospital, the father of
the informant succumbed to the injuries.
(ii) During course of investigation, number of witnesses were examined
including some eye witnesses. On the basis of statement of witnesses
recorded under Section 161 Cr.P.C. as well as other materials, the I.O.
filed preliminary Charge-sheet against 6 accused persons vide FF No. 86
dated 16.06.2017 for commission offences under Sections
147/148/302/435/120-B/149 of the I.P.C. keeping the investigation open
under Section 173(8) of the Cr.P.C. Thereafter, again the I.O. submitted
Supplementary Charge-sheet against 11 accused persons vide FF
No.189 dated 01.07.2021 for commission of offences under Sections
147/148/302/435/120-B/149 of the I.P.C. keeping the further investigation
open under Section 173(8) of the Cr.P.C.
(iii) It is stated that the Petitioner No.1 is a retired teacher having high
regards in the locality. Similarly, the Petitioner No.2 is also serving as a
teacher in Maa Basulei Bidyapitha, Nuagarh School. Since none of the
Location: ORISSA HIGH COURT, CUTTACK
witnesses examined by the prosecution agency made any assertion
regarding the involvement of the present Petitioners more particularly
the Petitioner No.1 in the alleged crime, the I.O. neither apprehended
the Petitioners nor did file charge sheet though they were very much
available in the locality. However, since the names of the Petitioners
find place in the F.I.R., the investigating agency mechanically filed
charge sheet against the Petitioners vide FF No.453 dated 31.12.2022 for
commission of offences under Sections 147/148/302/435/120-B/149 of the
I.P.C. including 44 other accused persons.
(iv) After supply of police papers, the Petitioners filed an application for
discharge under Section 250 of BNSS, 2023 ( Section 227 of the Cr.P.C.)
on 04.11.2024 before the learned Additional Sessions Judge-cum-Special
Court under OPID Act, Cuttack. In the said application the Petitioners
made specific averments with regard to exoneration of the Petitioner
No.1 by all the witnesses examined during course of investigation
including the informant.
(v) The learned trial court after hearing the parties disposed of the
discharge application filed by the Petitioners vide order dated
12.11.2024 rejecting the same on the ground that sufficient incriminating
materials were established against the Petitioners for which charge
sheet was submitted against them. Hence, the Petitioners are
constrained to approach this Court by way of this CRLREV.
Location: ORISSA HIGH COURT, CUTTACK
II. SUBMISSIONS ON BEHALF OF THE REVISIONISTS/
PETITIONERS:
3. Learned counsel for the Revisionist/Petitioner earnestly made the
following submissions in support of his contentions.
(i) The statements of all the witnesses examined during investigation show
that none of them stated during investigation that the present Petitioner
No.1 was either present at the crime scene or conspired with any
accused persons who were present there for commission of the alleged
offences. Further, it is also apparent therefrom that though the
Petitioner No.2 was present at the crime scene but there is no specific
overt act attributed against him in commission of the alleged offences.
(ii) The informant is a post occurrence witness. The contents of the FIR also
shows that the informant was not present at the crime scene when the
alleged incident occurred. The Informant being not an eye witness to
the occurrence, he named the Petitioners along with 42 others to be the
perpetrators of the crime. However, during course of investigation, the
informant completely negates the assertions as has been made against
the Petitioner No.1 and exonerated the Petitioner No.1 completely.
Similarly, all the eye witnesses as well as post occurrence witnesses and
chance witnesses examined by the I.O. also did not utter a single word
against the Petitioner No.1.
(iii) It is settled position of law that the trial Judge is not a mere post office
to frame the charge at the instance of the prosecution. He has merely to
sift the evidence in order to find out whether or not there is sufficient
ground for proceeding against the accused. Such evidence would
Location: ORISSA HIGH COURT, CUTTACK
consist of the statements recorded by the police or the documents
produced before the Court. If the evidence, which the Prosecutor
proposes to adduce proves the guilt of the accused, even if fully
accepted before it is challenged in cross-examination or rebutted by the
defence evidence, if any, "cannot show that the accused committed the
offence, then, there will be no sufficient ground for proceeding with the trial".
In the instant case, even if the statements recorded by the police or the
documents produced before the Court is accepted in its entirety to be
true, no case is made out against the Petitioners, more particularly
Petitioner No.1.
(iv) Learned counsel for the Petitioners placing reliance on the judgment of
the Supreme Court in Ram Prakash Chadha Vrs. State of Uttar
Pradesh1 submitted that while considering the discharge application, 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. In the instant case on
consideration of all the material produced by the prosecution, so far as
the Petitioner No.2 is concerned, two views are possible and one of
them gives rise to suspicion only as some of the eye witnesses stated
regarding mere presence of the Petitioner No.2 at the spot. However,
they are completely silent with regard to any overt act committed by the
Petitioner No.2. Similarly some witnesses also did not name the
Petitioner No.2 at all to be the perpetrator of crime.
(2024) 10 SCC 651
Location: ORISSA HIGH COURT, CUTTACK
(v) He also placed reliance on the judgment of the Apex Court in Yogesh
Alias Sachin Jagdish Joshi Vrs. State of Maharashtra2 and submitted
that the principle of jurisdiction under Section 227 of the Cr.P.C.
established is to take the materials produced by the prosecution, both in
the form of oral statements and also documentary material, and act
upon it without it been subjected to questioning through cross-
examination and everything assumed in favour of the prosecution, if a
scenario emerges where no offence, as alleged, is made out against the
accused, it, undoubtedly, would enure to the benefit of the accused
warranting the trial court to discharge the accused. In the present case
on conspectus analysis of the material produced by the prosecution,
though no case is made out against the petitioners, the learned trial
Court completely failed to exercise the jurisdiction under Section 227 of
the Cr.P.C, warranting interference of this Court.
(vi) In such view of the above circumstances, learned counsel for the
Petitioners submitted that this CRLREV may be allowed setting aside
the order dated 12.11.2024 passed by the learned Additional Sessions
Judge-Cum- Special Court under OPID Act, Cuttack in S.T. Case No.231
of 2024 and the Petitioners may be discharged of the alleged offences.
III. SUBMISSION OF THE OPPOSITE PARTY:
4. On the other hand, learned counsel for the Opposite Party supporting
the impugned judgment passed by the trial court submitted that the
(2008) 10 SCC 394
Location: ORISSA HIGH COURT, CUTTACK
trial court has passed the impugned order taking into account all the
aspects relevant for the purpose of the trial. Therefore, he prayed for
dismissal of this Criminal Revision.
IV. COURT'S REASONING AND ANALYSIS:
5. I have heard learned counsel for the parties and perused the evidence
on record.
6. The core dispute in this Criminal Revision centers around the
Petitioners' inclusion in a charge sheet for a 2017 murder case, despite
the absence of any direct evidence or witness statements implicating
them, especially Petitioner No.1. While the trial court rejected their
discharge plea, the Petitioners argue that no prima facie case exists
against them based on witness testimonies and documentary evidence.
They seek to set aside the trial court's order and be discharged from the
alleged offences.
7. It is a well-established principle of law that while considering an
application for discharge, the court must proceed on the presumption
that the material presented by the prosecution is true. At this stage, the
court's duty is not to conduct a meticulous examination of the evidence
as it would during trial but rather to assess whether, on the face of the
material available, the essential ingredients of the alleged offense are
prima facie established. The inquiry must be confined to determining
whether the facts, as they stand, disclose the commission of the offense
in question, warranting the continuation of proceedings.
8. The essential principles of Section 227 of the CrPC were duly
summarized by the Supreme Court in the case of Union of India v.
Location: ORISSA HIGH COURT, CUTTACK
Prafulla Kumar Samal and Anr.3 The relevant excerpt is produced
below:
"(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out:
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be, fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however
if two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused,
he will be fully within his right to discharge the accused."
9. For the purpose of discharging an accused, the Judge is required to
assess whether there exist sufficient grounds to proceed with the trial,
not to determine the guilt or innocence of the accused at that stage. The
court must evaluate whether the prosecution's case, even if taken at face
value and unrebutted, discloses any triable offence justifying the
continuation of proceedings. This principle was reaffirmed by the
Supreme Court in Stree Atyachar Virodhi Parishad.Vs. Dilip Nathumal
Chordia & anr.4 , where it was held as follows:
"Sec. 227 itself contains enough guidelines as to the scope of
enquiry for the purpose of discharging an accused. It
provides that "the Judge shall discharge when he considers
1979 AIR 366.
1989 SCC (1) 715.
Location: ORISSA HIGH COURT, CUTTACK
that there is no sufficient ground for proceeding against the
accused". The 'ground' in the context is not a ground for
conviction, but a ground for putting the accused on trial. It
is in the trial, the guilt or the innocence of the accused will
be determined and not at the time of framing of charge. The
Court, therefore, need not undertake an elaborate enquiry in
sifting and weighing the material. Nor it is necessary to
delve deep into various aspects. All that the Court has to
consider is whether the evidenciary material on record if
generally accepted, would reasonably connect the accused
with the crime. No more need be enquired into."
10. Substantiating further on this point, the Supreme Court further held the
following:
"We wish to add a word regarding interference by the High
court against a charge framed by the Sessions Court.
Section 227 which confers power to discharge an accused
was designed to prevent harassment to an innocent person
by the arduous trial or the ordeal of prosecution. How that
intention is to be achieved is reasonably clear in the section
itself. The power has been entrusted to the Sessions Judge
who brings to bear his knowledge and experience in criminal
trials. Be- sides, he has the assistance of counsel for the
accused and Public Prosecutor. He is required to hear both
sides before framing any charge against the accused or for
discharging him. If the Sessions Judge after hearing the
parties frames a charge and also makes an order in support
thereof, the law must be allowed to take its own course. Self
restraint on the part of the High Court should be the rule
unless there is a glaring injustice stares the Court in the
face. The opinion on any matter may differ depending upon
the person who views it. There may be as many opinions on
a particular matter as there are courts but it is no ground
for the High Court to interdict the trial. It would be better
for the High Court to allow the trial to proceed."
Location: ORISSA HIGH COURT, CUTTACK
11. Applying the abovementioned precedents to the case in hand, this
Court finds that the continued prosecution of the present Petitioners,
particularly Petitioner No.1, would amount to subjecting them to the
rigours of trial without the foundational necessity of a prima facie case
being met. A comprehensive examination of the case diary materials,
including statements recorded under Section 161 Cr.P.C., reveals a clear
absence of any direct or even inferential evidence against Petitioner
No.1. Neither the informant, who is admittedly a post-occurrence
witness, nor any of the eyewitnesses have alleged any role, overt or
otherwise, against him. His implication appears to stem solely from
being named in the FIR, which, without corroborative material, cannot
justify the framing of charges. The mere naming of an individual in the
FIR, especially where large numbers of persons are named, is not
conclusive unless supported by material particulars linking the
individual to the incident.
12. It is also not insignificant that the Petitioners were not apprehended
during the initial stages of investigation, despite being available in the
locality and having no prior criminal record. This omission by the
investigating agency reinforces the Petitioners' claim that no
incriminating material was found against them during the core phase of
the inquiry. The eventual filing of charge sheet against them,
particularly in the absence of any fresh evidence, appears mechanical
and unsubstantiated.
13. Even leaving the legal principles aside for a moment, the broader
context cannot be ignored. Petitioner No.1 is a retired school teacher,
Location: ORISSA HIGH COURT, CUTTACK
aged and respected in his community. His unblemished record and
societal standing add moral weight to the submissions made in his
favor. Subjecting an elderly man, against whom no specific role or
criminal intent is even remotely suggested, to the psychological and
physical strain of a prolonged criminal trial would be both inequitable
and contrary to the principles of natural justice.
14. In view of the foregoing analysis, the order dated 12.11.2024 passed by
the learned Additional Sessions Judge-cum-Special Court, Cuttack in
S.T. Case No. 231 of 2024 is hereby set aside. The Petitioners, namely
Petitioner No.1 and Petitioner No.2, are discharged from the offences
alleged against them.
15. Consequently, the Criminal Revision Petition stands allowed.
16. Interim order, if any, passed earlier stands vacated.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 11th April, 2025/
