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.643 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. 366 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 one K.Chakrapani Reddy of village

Chamakhandi lodged a FIR before IIC, Chamakhandi

stating therein that on 01.07.2010 the accused

V.Lachhmeya Reddy of M/s. Rightmax Technotrade

International Ltd. had given assurance to him and

other villagers to get triple benefit in 33 months of

deposit of any amount. The said company was

managed by the petitioner and others and believing

the words of V.Lachhmeya Reddy, the informant had

deposited Rs.9,00,000/- on 01.07.2010 in the said

company and received bond of Rs.14,000/-,

Rs.10,000/- and Rs.10,000/- on 10.07.2010,

16.10.2010 and 01.07.2010. Despite deposit of the

money, the informant did not receive any bond as

regards to his total deposit. It is also stated by him in

the FIR that other villagers had deposited money, but

when he and other villagers did not get refund of

their deposit, he lodged the FIR which came to be

registered as Chamakhandi P.S. Case No. 92 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 offence was taken and

some of the accused persons faced trial before the

Court of Chief Judicial Magistrate, Ganjam at

Berhampur in G.R. Case No. 366 of 2011, however,

the said accused persons numbering 04 facing the

trial got acquitted in the original case on conclusion of

trial. Since the petitioner and five other accused

persons did not appear in the original case, the case

against them was separated and split up by the

learned trial Court vide G.R. Case No. 366 of 2011-

(B), but subsequently the petitioner and four others

appeared in the split up case, however, only the

petitioner filed a discharge petition to discharge him

from this case for commission of offence 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

is absent in the FIR with no overt act being attributed

to him and the acquittal of co-accused person in the

original trial. The learned trial Court, however, by the

impugned order rejected such discharge petition of

the 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 G.R. Case No. 366 of 2011 and

the name of the petitioner being conspicuously

absent in the FIR and no overt act having been

attributed against the petitioner, 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

reads 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 further against the accused person.

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 upon a police report involving trial of warrant

cases, the revision petitioner can 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 the

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 petition of the accused. 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 any new

document/material beyond the Police report and

documents submitted therewith U/S. 173 of CrPC/193

of the BNSS.

8. In this case, the petitioner in order to

secure his discharge from the criminal case 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 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 this 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 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. By a cursory glance of the

materials on record, if two views are equally possible

and the Court is of the considered opinion that the

evidence produced before him gives rise to strong or

grave suspicion against the accused, it would be

perfectly within the domain of the Court to frame

charge against the accused.

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