Orissa High Court
(An Application Under Provisions 442 & ... vs State Of Odisha on 14 July, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 129 of 2025
(An application under provisions 442 & 438 of the Bharatiya Nagarik
Suraksha Sanhita 2023 against the order dated 18.01.2025 passed by
the learned Special Judge, Vigilance, Cuttack in T.R. Case No.21 of
2023).
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Rabindra Kumar Senapati .... Petitioner
- versus -
State of Odisha,
Department of Home (Vigilance) .... Opp. Party
For Petitioner : - Mr. G.K. Rath, Advocate
For Opp. Party: - Mr. Sangram Das,
Standing Counsel (Vigilance)
CORAM:
HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Hearing & Judgment: 14.07.2025
1. The legality, propriety and correctness of the order dated 18.01.2025
passed by the learned Special Judge, Vigilance, Cuttack in T.R. Case
No.21 of 2023 has been called in question in this Revision.
2. The background facts of the case are that, the Petitioner while was
engaged as the Secretary at Deymal Service Cooperative Society, at
Deymal, Kendrapara, allegedly to have misappropriated funds of the
said Cooperative Society by not accounting for the amounts collected
from different loanees and further by not reflecting the said amounts in
the Office Register of the Society. Accordingly, F.I.R. was lodged by
the Inspector of Vigilance against the Petitioner for commission of the
offences under Sections 13(2) & 13(1)(c)(d) of the Prevention of
Corruption Act and Section 409 of the Indian Penal Code. The case
having been registered, investigation was undertaken and the Vigilance
Wing submitted charge-sheet against the Petitioner.
3. Being aggrieved by the allegations appearing against the Petitioner
and in absence of any material to proceed with the criminal charge, the
Petitioner moved the learned Special Judge, Vigilance, Cuttack praying
for his discharge from the offences alleged. Learned Special Judge,
Vigilance having heard the parties, dismissed the prayer of the
Petitioner, which has been impugned herein.
4. Mr. Rath, learned counsel for the Petitioner assailing the impugned
order, submitted that the allegation against the Petitioner with regard to
the misappropriation of fund has been dealt with in the Audit Report for
the year 2002-2003. According to Mr. Rath, while the said report
clearly disclosed the names of other persons, who are responsible for
the irregularities, the name of the present Petitioner has been added to
the charge sheet despite of the fact that the audit report has never
recommended the name of the Petitioner to be responsible for such
misappropriation. He further submitted that the Petitioner while was
working as Junior Supervisor, was terminated from service, on the
ground of misappropriation of fund as referred to in the charge sheet
but accepting that in the audit report for the period from 01.04.2002 to
29.06.2002, the Petitioner found not responsible for the same, on the
office order of the authority deposited a sum of Rs.3,00,000/- (Three
Lakhs) against the security and got him reinstated in service. The
Petitioner having deposited the said amount, continued in his job. Mr.
Rath, learned counsel for the Petitioner also drew attention of this Court
to Letter No.1442/Estt. Sec./2019-20 dated 28.08.2019, wherein a De-
novo Enquiry was conducted against the Enquiry Proceeding No.5593
dated 16.08.2004 initiated against the Petitioner, and vide Report dated
17.04.2020 the Petitioner was not found guilty of the charges leveled
against him. Accordingly, the Enquiry Officer submitted his findings by
holding that the fund was not misappropriated but the figure found
mismatched due to imbalance in the Cooperative Society.
5. Mr. Rath, referring to the aforesaid findings in the enquiry,
submitted that the further proceeding against the Petitioner pursuant to
the charge-sheet submitted against him in T.R. Case No.21 of 2023
would be abuse of the process of law and the learned Trial Court having
not applied its judicial mind, arrived at an erroneous conclusion with
regard to its finding that there are materials on record to strongly
presume that the Petitioner has committed the offence under Section
13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act
and Section 409 of the IPC. He made it clear that initiation of the
proceeding against the Petitioner in connection with T.R. Case No.46 of
2013 for the alleged misappropriation of an amount of Rs.1,94,597/-
against the cost of fertilizers of the Cooperative Society have no nexus
whatsoever with the present proceeding initiated in T.R. Case No.21 of
2023. He, therefore, submits to set aside the impugned order.
6. Mr. Sangram Das, learned Standing Counsel (Vigilance) on the
contrary vehemently opposed the contentions raised by the learned
counsel for the Petitioner. He submitted that the records and documents
are apparently clear to hold the present Petitioner to be responsible for
misappropriation of the fund of the Society to the tune of Rs.68,832/-
(Sixty-eight thousand eight hundred thirty-two). He further submitted
that the findings arrived in the departmental enquiry is completely
different than the adjudicatory process as pending before the court for
trial. He also submitted that the audit report, wherein the name of the
Petitioner is found to be not responsible for the misappropriation, could
be one of the grounds for the Petitioner to support his case, but
apparently it does not take away the misconduct and/or the offence of
misappropriation of fund in as much as the authority being aware of the
said fact sanctioned for prosecution. He further submitted that the fact
with respect to the misappropriation to the tune of Rs.68,832/- has
clearly been made out, as the Petitioner being responsible for the
maintenance of the Records and Registers, deliberately omitted to make
the relevant entries with regard to collection of funds from the loanees
and took it to himself, may it be temporarily, but it amounts
misappropriation and as such the impugned order passed by the learned
Court deserves no interference.
7. Having regard to the submissions made by the learned counsels for
the respective parties and on perusal of the documents, more
particularly the F.I.R. and the charge-sheet submitted in connection
with the case, prima facie reveals that the Petitioner who was working
in the cadre of Secretary in Deymal Service Cooperative Society during
the relevant period, did not hand over the charge of the Society as well
as stock of different fertilizers. In course of verification of the stock,
the Petitioner was found to have collected loan amount along with
interest from eight numbers of loanees to the tune of Rs.68,832/-, but
did not deposit the said collected amount in the account of the Bank and
thereby amenable to misconduct of misappropriation.
8. The grounds advanced by the learned counsel for the Petitioner to
the effect that the audit report of the respective periods did not point out
the responsibility of the Petitioner for the misappropriation is a ground
of defence of the Petitioner which can only be thrashed in course of the
trial. Discharge of the Petitioner from the offences alleged could only
be granted in an eventuality when no material brought in the case
against the Petitioner would directly, indirectly and/or by presumption,
makes out a case against him.
9. This Court feels it appropriate to refer to the decision in the matter
of State of Gujarat vs. Dilipsinh Kishorsinh Rao, reported in 2023
SCC OnLine SC 1294, wherein the Hon'ble Supreme Court has held
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 chargesheet
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. 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."
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 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 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.
13. 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. 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
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a 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 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 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.
13. Another 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. 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 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 stage
in the proceedings under the CrPC."
14. This Court 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 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 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 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 should 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 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.
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 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 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 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 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 ought to be cognizant of the fact that trial court
was dealing with an application for discharge.
10. In view of the principles laid in the above referred cases, vis-à-vis
the facts emerging in the case in hand, there are materials to presume
the Petitioner to be responsible for the misappropriation of public fund
and, therefore, continuation of the proceeding against the Petitioner
cannot be thwarted merely for the reason that an audit report basing on
which the enquiry was undertaken, held him primarily not responsible
and exonerated from the Departmental Proceeding. The Departmental
Proceeding is absolutely different than the process of adjudication. The
findings of the Departmental Enquiry might weigh to the Court to read
in his favour, but the substantial evidence that would be adduced during
the trial will have primacy over the findings recorded in the enquiry.
The impugned order rejecting the prayer of the Petitioner for discharge,
therefore, is found to be no way illegal, and the same being in
accordance with law, deserves no interference.
11. In the result, the CRLREV stands dismissed.
(Chittaranjan Dash)
Judge
High Court of Orissa, Cuttack.
The 14th day of July, 2025
S.K. Parida, ADR-cum-APS
Designation: ADR-cum-Addl. Principal Secretary
Location: ORISSA HIGH COURT, CUTTACK
Date: 17-Jul-2025 16:02:56
