Duryodhan Samal vs State Of Odisha (Vig.) .... Opposite ... on 10 December, 2025

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

AFR
              IN THE HIGH COURT OF ORISSA AT CUTTACK
                              CRLREV No. 280 of 2025

        Duryodhan Samal                ....                      Petitioner

                                               Mr. P.R. Chhatoi,
                                                        Chhatoi Advocate

                                    -versus-

        State of Odisha (Vig.)         ....                 Opposite Party
                                                  Mr. Sangram Das, S.C.
                                                                    S.C
                                                For Vigilance Department


                             CORAM:
            THE HON'BLE
                    BLE MR. JUSTICE CHITTARANJAN DASH
                        Date of Judgment: 10.12.2025

      Chittaranjan Dash, J.

1. By means of this application, the Petitioner seeks seek to challenge the order dated 23.05.2025 passed by the learned Special Judge, Vigilance, Cuttack in T.R. Case No.77 of 2009, wherein the learned court decline to allow the prayer of the Petitioner discharging him from the offences alleged.

2. The background facts of the case, in brief, are that on 07.12.2006, one M. Sethi, Inspector of Vigilance, C.D., Cuttack lodged a written report before the S.P., Vigilance, Cuttack Division alleging misappropriation of Government funds by officials of Aul Block lock in the execution of three road works, whereupon a vigilance enquiry was initiated. During enquiry, it was revealed that an estimate for improvement of Manapur-Nadikula Manapur Nadikula village road was prepared by the Junior Engineer, Sri Pitabas Mishra of Aul Block

for or an amount of Rs.5,00,000/-, Rs.5,00,000/ , which was technically sanctioned by the Assistant Engineer, Aul Block, namely Sri Santosh Kumar Balabantaray on 14.09.2004 and administratively approved by the Collector, Kendrapara on 11.11.2004 from MPLAD funds. The work order der for the said work was issued by the B.D.O. in favour of the present Petitioner on 14.11.2004, and the Petitioner executed the work between December 2004 and January 2005. It is further alleged that another estimate amounting to Rs.2.40 lakhs was prepared ed for the same road, though under a changed name, by the same Junior Engineer on 07.12.2005, and the work was executed by one Jayant Kumar Jena. Similarly, for construction of the C.C. road from the irrigation embankment to Aayatpur village, an estimate of o Rs.2 lakhs was prepared by the same Junior Engineer, and the work order dated 22.09.2005 was issued in favour of one Biswanath Mallik. On the basis of the F.I.R., investigation was undertaken, and the technical wing of the Vigilance found that the Government Govern had suffered a total loss of Rs.3,56,603/-

Rs.3,56,603/ due to inflated measurements recorded by the concerned Assistant Engineer and Junior Engineer, who had allegedly entered into a criminal conspiracy with the contractors and thereby shown undue official favour.

favour The learned trial court, upon receipt of the Charge-Sheet, Charge Sheet, took cognizance of the offences and issued summons to the Petitioner. The Petitioner appeared pursuant thereto and moved an application under Section 227 Cr.P.C. seeking discharge from the offences offences alleged, which was rejected, hence this revision.

3. Mr. Chhatoi, Chhatoi, learned counsel for the Petitioner, submitted during the course of hearing that the order of the learned court declining to discharge the Petitioner is illegal, erroneous, and

unsustainable in law. According to him, the learned court failed to appreciate that the Petitioner had executed the work between December 2004 and January 2005, and that the bill in his favour was passed only after due check measurement. It is his submission that if, at the same location, a subsequent work order was issued in favour of another contractor under a changed description, the same cannot be attributed to the present Petitioner, nor can any criminal liability be fastened on him in connection with such subsequent subsequen work. In the absence of any clear report indicating that the work executed by the Petitioner was either beyond the approved scope or deficient in quality, no offence is made out against him. Learned counsel further contended that the trial court failed to t take into account the technical inspection report dated 11.07.2006 submitted by one Mr. B.P. Das, J.E., Vigilance, wherein it was specifically observed, with regard to the subsequent work (Sl. No. II), that the pre-facing facing estimate had not been furnished, thereby casting doubt on the necessity of repeated execution in the same area. On these premises, it was argued that the Petitioner had no role whatsoever in the work subsequently awarded for the selfsame location to another contractor, and that his implication implication in the case is unfounded and unsupported by the record.

4. Mr. Sangram Das, learned counsel for the State (Vigilance), on the other hand, submitted that the grounds urged by the Petitioner are essentially matters of defence, which can appropriately be examined during the course of trial and not at the stage of discharge. He, however, fairly submitted that there is no report indicating that the work executed by the Petitioner was of non-standard standard quality.

5. The Hon'ble Supreme Court in State of Gujarat vs. v h Kishorsinh Rao, reported in 2023 SCC OnLine SC Dilipsinh 1294, has held as follows:-

follows

"11. 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 to the material produced by the investigating agency.

12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie prima facie case, and at this stage, the probative value of materials on record need not be gone into. This CourtCourt 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 charge is to test the existence of prima-

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.

13. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power pow 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 jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded well founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

m

13. Another well-accepted well accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order.

order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced much advanced stage in the proceedings under the CrPC."

14. This Court in in the aforesaid judgement has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr.P.C. is sought for as under:

"27. Having discussed discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482

of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered sidered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code shouldd be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

in 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9. Another very significant significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily primarily with the allegations taken as a

whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is i even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents documents or records but is an opinion formed prima facie."

15. 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 Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge."

6. In view of the submissions made by the respective parties, the case record, and in light of the principles enunciated by the Hon'ble Supreme Court in the aforesaid decision of Dilipsinh Kishorsinh Rao (Supra),, it appears that the Petitioner was duly awarded the work, executed it in accordance with the sanctioned estimate, and, following check measurement, was released with the corresponding bill. The subsequent act of the officials in awarding another contract for the same work cannot, in the absence of any material indicating that the Petitioner conspired with the subsequent contractors or officials, be attributed to him. There is no material on recordd to suggest that the subsequent work was executed in collusion with the Petitioner or that the earlier work carried out by him was of sub-standard sub standard quality resulting in any loss to the Government exchequer. Admittedly, the trial court did not consider this aspect while adjudicating the application under Section 227 Cr.P.C.

7. Having regard to the above and applying the test of existence of a prima facie case, this Court finds no material on record that would necessitate continuation of the trial against the Petitioner titioner merely on the ground that subsequent work was awarded in the same location. In these circumstances, the prayer of the Petitioner is allowed, and the impugned order dated 23.05.2025 is quashed.

8. Accordingly, the CRLREV CRLR stands disposed of.

(Chittaranjan Dash) Judge

Bijay

Location: HIGH COURT OF ORISSA