Orissa High Court

R. Venkat Ramanan @ R vs State Of Odisha .... Opposite Party on 30 April, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   CRLREV No.642 of 2024

  (An application U/S. 401/397 of CrPC, corresponding to
  Section 438/442 of BNSS, 2023).

   R. Venkat Ramanan @ R.      ....                    Petitioner
   Vanket Ramanan
                      -versus-
   State of Odisha             ....              Opposite Party


   For Petitioner           :      Mr. Ramani. K., Advocate

   For Opposite Party       :      Mr. R.B. Mishra, Addl.PP

       CORAM:
                   JUSTICE G. SATAPATHY

                   DATE OF HEARING : 15.04.2025
                   DATE OF JUDGMENT: 30.04.2025

G. Satapathy, J.

1. This criminal revision is directed against

the impugned order dated 29.08.2024 passed by the

learned Chief Judicial Magistrate, Ganjam at

Berhampur in G.R. Case No. 367 of 2011-(B) refusing

to discharge the petitioner from the criminal case for

commission of offences punishable U/S.120(B)/420/

468/471/34 of IPC r/w. Sections 4/5/6 of Prize Chits

& Money Circulation Scheme (Banning) Act, 1978 (in

short, "the Act").

2. Briefly stated, the allegations against the

petitioner are that the petitioner and others by

entering into conspiracy allured the informant to

deposit/invest money in Right Max Techno Trade

Company on the assurance of giving high returns.

The said company was manned by the petitioner and

others and believing the statement of one

V.Lachmeya Reddy of such company to get triple

return on investment in just 33 months, the

informant deposited Rs.60,000/- in the said company

on 31.02.2010/01.03.2010 and in the process, the

company also received investment/deposit from the

other villagers, who invested certain amounts in the

company, but when N.Dinabandhu Reddy, the

informant came to know about closure of the

company and did not get back any money, he lodged

an FIR against the employees of the company which

came to be registered in Chamakhandi P.S. case No.

93 of 2011 resulting in commencement of

investigation which ultimately ended in submission of

charge sheet against the petitioner and others for

commission of offence punishable U/S.

120(B)/420/468/471/34 of IPC r/w. Sections 4/5/6 of

the Act.

3. On the basis of materials collected in the

investigation, cognizance of offences was taken

resulting in trial in the original case, but some of the

accused persons facing the trial in original case

before the Court of Chief Judicial Magistrate, Ganjam

at Berhampur in G.R. Case No. 367 of 2011-(B) got

acquitted on conclusion of trial. Since the petitioner

and five others did not appear in the original case,

the case against them was separated and split up by

the learned trial Court in G.R. Case No. 367 of 2011-

(B), but subsequently the petitioner and four others

appeared in the split up case, however, only the

revision petitioner filed a discharge petition to

discharge him from this case for commission of

offences punishable U/Ss. 120(B)/420/468/471/34 of

IPC r/w. Sections 4/5/6 of the Act mainly on two

grounds that his name does not find place in the FIR

with no overt act being attributed to him and

acquittal of co-accused persons in the original trial.

The learned trial Court, however, by the impugned

order rejected such discharge petition of the revision

petitioner giving rise to the present revision.

4. In the course of hearing of the revision,

Mr. Ramani. K., learned counsel appearing for the

petitioner submits that co-accused standing on

similar footing has already been acquitted by the

learned trial Court in original case in G.R. Case No.

367 of 2011 and the name of the petitioner being

conspicuously absent in the FIR and no overt act

having been attributed against him, the petitioner

should have been discharged from the case, however,

the learned trial Court erroneously applied the law

and rejected the discharge petition of the petitioner

which can be rectified by allowing this revision.

Accordingly, Mr. Ramani. K., learned counsel for the

petitioner prays to allow the revision by setting aside

the impugned order and discharging the petitioner

from the criminal case.

4.1. On the other hand, Mr. R.B. Mishra,

learned Addl. Public Prosecutor, however, strongly

opposes such prayer of the petitioner by inter alia

contending that not only the learned trial Court has

passed the order rightly refusing to discharge the

petitioner, but also there is a prima facie case against

the petitioner for proceeding in this case and,

therefore, this revision petition by the petitioner

merits no consideration. Accordingly, Mr. Mishra

prays to dismiss this revision.

5. After having considered the rival

submissions upon perusal of record, since the

petitioner assails the impugned order refusing to

discharge him from the criminal case mainly on the

two grounds; such as absence of his name in the FIR

and acquittal of co-accused persons, this Court

considers it apposite to reiterate the provisions under

which an accused can be discharged in a case upon

Police report which has been apparently provided in

Section 239 of the CrPC/262(2) of the BNSS which

provides that if, upon considering the Police report

and the documents sent with it under Section 173 of

CrPC/193 of the BNSS and making such examination,

if any, of the accused as the Magistrate thinks

necessary and after giving the prosecution and the

accused an opportunity of being heard, the

Magistrate considers the charge against the accused

to be groundless, he shall discharge the accused, and

record his reasons for so doing. The aforesaid

provision, if read together with Sec. 240 of the

CrPC/263 of the BNSS makes it ample clear that

while dealing with a discharge petition and

considering charge, the Court has to consider the

Police report and the documents submitted therewith

U/S. 173 of the CrPC/193 of the BNSS and after

giving the parties an opportunity of being heard, the

Magistrate has to pass an order to say whether the

charge is groundless or there is/are ground(s) for

proceeding against the accused persons.

6. It is, however, claimed by the revision

petitioner that he had filed a discharge petition U/S.

227 of CrPC., but since the offence alleged is triable

by Magistrate 1st Class and the proceeding arising out

of in this case upon a police report involving trial of

warrant cases, the revision petitioner can only

maintain an application U/S. 239 of CrPC till

31.06.2024 or maintain a similar application U/S.

262(2) of the BNSS w.e.f. 01.07.2024 on which date

the BNSS came into force, but it is not clarified by the

revision petitioner as to when he filed the discharge

petition which is in fact very important because Sec.

262(1) of the BNSS prescribes that a discharge

petition U/S. 262(2) of the BNSS can be filed by the

accused within a period of sixty days from the date of

supply of copies of documents U/S. 230 of BNSS

which cannot be taken lightly since the statutes

provides a thing to be done in a particular way, the

same has to be done in that way or not at all. In this

case, the revision petitioner has not made it clear

when the copies of documents were supplied to him

and when he filed the discharge petition which

assumes significance in this case and thereby, the

challenge of the revision petitioner to the impugned

order refusing to discharge him shall fall on that

score.

7. Be that as it may, this Court also considers

it to remind that this Court in exercise of revisional

jurisdiction is not justified to re-appreciate the facts

and documents to substitute its own view, unless the

Court passing the order on discharge petition in fact

has not considered the Police report and the

documents annexed therewith in accordance with

provision governing discharge of the accused, or

improperly considered the same to an extent which is

unacceptable by the prescribed yardsticks of

considering the discharge petition of the accused.

Further, it is to be reminded, once charges are

framed, the revisional Court should go slow in

exercise of revisional jurisdiction to rely upon the

documents other than those referred to in Section

239 of the CrPC/262(2) of the BNSS to disturb the

order on discharge of the accused person. From a

studied scrutiny of provision of Section 239

CrPC/262(2) of the BNSS, it is apparently clear that

the Court shall not in a normal case consider beyond

the Police report and documents submitted therewith

U/S. 173 of CrPC/193 of the BNSS.

8. In this case, the petitioner harps on two

grounds, firstly absence of his name in the FIR and

secondly, acquittal of co-accused in original trial, but

fact remains that FIR is neither an encyclopedia of

facts nor is it a report within the meaning of Section

173 of CrPC/193 of the BNSS. On the other hand, the

acquittal of co-accused persons is on the basis of the

evidence led in the trial in the original case which is

not relevant in the split up cases like this because the

evidence has not been taken in the presence of the

accused-petitioner. It is, however, contended by the

learned counsel for the petitioner that no overt act

has been attributed against the petitioner, but neither

the Police report nor any documents submitted with

the Police report has been produced either by the

revision petitioner or the State to justify such plea or

contention. On the other hand, the case was

instituted around 14 years before and the present

petitioner having not appeared in the original case,

the case against him was split up. It is also equally

well settled that in considering the discharge petition,

the Court has definitely power to sift and weigh the

evidence for the limited purpose of finding out

whether a prima facie case is made out against the

accused persons or not. It is trite law that, if the

materials placed on record discloses grave or strong

suspicion as distinguished from mere suspicion

against the accused which has not been properly

explained, the Court would be fully justified to frame

charge and proceed against the accused in the trial.

The test to determine a prima facie case against the

accused would naturally depend upon the facts and

circumstance of each case and it is difficult to lay

down any universal rule of application.

9. This Court is, however, considered it

useful to refer to a recent judgment in State of

Gujurat vs. Dilipsinh Kishorsinh Rao;(2023) 17

SCC 688, wherein the Apex Court has held in

paragraph-7, 8, 9, 10, 11, 12 ,13 and 14 as under:-

7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.

8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.

9. If the accused is able to demonstrate from the charge- sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.

10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.

11. This Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether

or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

12. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give

any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.

13. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima- facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial."

10. The scope and ambit of the power of revision

has been succinctly explained by the Apex Court in

Dilipsinh Kishorsinh Rao (supra), wherein it has

been held as under:-

"14. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order

made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge."

11. On a careful scrutiny of the impugned

order on the backdrop of the principle narrated

above, it appears that the learned trial Court has

taken into consideration the materials available on

record by observing inter alia that the present

revision petitioner is one of the Director of the said

company and the informant had deposited money in

the said company, but did not get back the said

amount and the IO on due investigation has

submitted charge sheet against the present petitioner

and other accused persons. Thus, on a careful

conspectus of the impugned order in juxtaposition