Orissa High Court
Bibhuti Bhusan Mishra vs State (Vigilance) ..... Opp. Party on 4 March, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMP No. 1245 of 2024
1. Bibhuti Bhusan Mishra
2. Soudamini Mishra
..... Petitioners
Mr. Asok Mohanty, Senior Advocate
-versus-
State (Vigilance) ..... Opp. Party
Mr. Sangram Das, Standing Counsel
(for Vigilance)
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MISS JUSTICE SAVITRI RATHO
ORDER
04.03.2025
Order No.
This matter is taken up through Hybrid arrangement
07.
(video conferencing/physical mode).
Heard Mr. Asok Mohanty, learned Senior Advocate for
the petitioners and Mr. Sangram Das, learned Standing Counsel for
the Vigilance Department.
The petitioners Bibhuti Bhusan Mishra and Soudamini
Mishra, who are the husband and wife have filed this petition
challenging the order dated 27.01.2024 passed by the learned
Special Judge, Special Court, Bhubaneswar in T.R. No. 8/45 of
2015/2013 in rejecting the petition filed by the petitioners under
section 239 of Cr.P.C. for discharge.
As per the charge sheet dated 19.08.2013, the petitioners
were charge sheeted under section 13(2) read with section 13(1)(e)
of the Prevention of Corruption Act, 1988 (hereafter '1988 Act')
read with section 109 of the Indian Penal Code on the accusation
that the petitioner no.1 who was the then Additional Secy. to Govt.,
Water Resources Department, being a public servant had acquired
assests both movable and immovable to the tune of Rs.30,30,683.84
or say Rs.30,30,684.00, both in his name and in the name of his
family members during the check period from June 78 to
30.06.2008. During the said check period, he had incurred
expenditure of Rs.27,50,730.45 or say Rs.27,50,730.00. Thus, on
both counts, it comes to Rs.57,81,414.00. Against this, he had
earned income of Rs.26,12,730.31 or say Rs.26,12,730.00 from all
his known and lawful sources. Thus, he had acquired assets to the
tune of Rs.31,68,684.00 as disproportionate to his known and lawful
sources of income of Rs.26,12,730.00 during the check period.
Mr. Asok Mohanty, learned Senior Advocate appearing
for the petitioners argued that the assests and expenditure as
reflected in the charge sheet are highly inflated. Some salary
received by the petitioner no.1 during the check period when he was
the Financial Advisor -cum- Additional Secretary to Government,
Water Resources Department, Bhubaneswar has not been taken into
account. He further argued that the petitioners have got two sons and
they have contributed a substantial amount for the construction of
the house out of their income during the check period, but the same
has not been taken into account. Several known sources of income of
the petitioner No.1 as well as his family have been ignored in a
malafide manner, even the D.A. amount has not been considered
properly while submitting charge sheet. He further argued that the
learned Court below has rejected the petition filed by the petitioner
under section 239 of Cr.P.C. in a mechanical manner and therefore,
the impugned order is liable to be set aside.
Mr. Sangram Das, learned Standing Counsel for the
Vigilance Department on the other hand supported the impugned
order and contended that in view of the limited scope on the part of
the learned trial Court at the stage of consideration of discharge
petition, it cannot be said that any illegality has been committed
while passing the impugned order. He argued that the contentions
raised that some amounts have been made highly inflated against the
assets and expenditure headings and there is deliberate omission of
some salary income, are required to be adjudicated at the time of
trial on the basis of evidence and not at this stage. So far as the non-
taking of some other income of the petitioners and their family is
concerned, it is required to be proved by oral as well as documentary
evidence. He argued that what was the income of the two sons of the
petitioners, how much amount they had contributed for the
construction of the house during the check period, are all the matters
of evidence, which if adduced during trial from the side of the
petitioners, will be adjudicated by the learned trial Court in
accordance with law and therefore, the impugned order should not
be interfered with.
In view of sub-section (1) of section 5 of 1988 Act, a
Special Judge in trying the accused persons, shall follow the
procedure prescribed by the Cr.P.C., for the trial of warrant cases by
the Magistrates. Chapter XIX of Cr.P.C. deals with the trial of
warrant cases by the Magistrates. Section 239 of Cr.P.C. which
appears in the said chapter enumerates as to when the accused shall
be discharged. In view of such provision, when the Magistrate
considers the charge against the accused to be groundless which
means without any basis or foundation, the accused can be
discharged. For arriving at such a conclusion, the Court has to
consider the police report and the documents sent with it under
section 173 of Cr.P.C. The Court can also make examination of the
accused, if it is necessary. Opportunity of hearing has to be provided
to both the prosecution and the accused at that stage. The truth,
veracity and effect of the materials proposed to be adduced by the
prosecution during trial are not to be meticulously adjudged. The
likelihood of the accused in succeeding to establish his probable
defence cannot be a ground for his discharge. The object of
discharge under section 239 of Cr.P.C. is to save the accused from
unnecessary and prolonged harassment. When the allegations are
baseless or without foundation and no prima facie case are made out,
it would be just and proper to discharge the accused to prevent abuse
of process of the Court. If there is no ground for presuming that
accused has committed an offence, the charges must be considered
to be groundless. The ground may be any valid ground including the
insufficiency of evidence to prove the charge. When the materials at
the time of consideration for framing the charge are of such a nature
that if unrebutted, it would make out no case whatsoever, the
accused should be discharged.
In case of Amit Kapoor -Vrs.- Ramesh Chander and
another reported in (2012) 9 Supreme Court Cases 460, it is held
as follows:-
"17. Framing of a charge is an exercise of
jurisdiction by the trial Court in terms of Section
228 of the Code, unless the accused is discharged
under Section 227 of the Code. Under both these
provisions, the Court is required to consider the
'record of the case' and documents submitted
therewith and, after hearing the parties, may either
discharge the accused or where it appears to the
Court and in its opinion there is ground for
presuming that the accused has committed an
offence, it shall frame the charge. Once the facts
and ingredients of the Section exists, then the Court
would be right in presuming that there is ground to
proceed against the accused and frame the charge
accordingly. This presumption is not a presumption
of law as such. The satisfaction of the Court in
relation to the existence of constituents of an
offence and the facts leading to that offence is a sine
qua non for exercise of such jurisdiction. It may
even be weaker than a prima facie case. There is a
fine distinction between the language of Sections
227 and 228 of the Code. Section 227 is expression
of a definite opinion and judgment of the Court
while Section 228 is tentative. Thus, to say that at
the stage of framing of charge, the Court should
form an opinion that the accused is certainly guilty
of committing an offence, is an approach which is
impermissible in terms of Section 228 of the Code.
xxx xxx xxx xxx
19. At the initial stage of framing of a charge, the
Court is concerned not with proof but with a strong
suspicion that the accused has committed an
offence, which, if put to trial, could prove him
guilty. All that the Court has to see is that the
material on record and the facts would be
compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at that
stage.
xxx xxx xxx xxx
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.
27.4. Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice and for
correcting some grave error that might be committed by
the subordinate courts, even in such cases, the High
Court should be loath to interfere, at the threshold, to
throttle the prosecution in exercise of its inherent
powers.
xxx xxx xxx xxx
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 the 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.
In case of State of Madhya Pradesh -Vrs.- Mohanlal
Soni reported in A.I.R. 2000 S.C. 2583, it is held that at the stage
of framing charge, the Court has to prima facie consider whether
there is sufficient ground for proceeding against the accused. The
Court is not required to appreciate the evidence to conclude whether
the materials produced are sufficient or not for convicting the
accused. If the evidence which the prosecution proposes to produce
to prove the guilt of the accused, even if fully accepted before it is
challenged by the cross-examination or rebutted by the defence
evidence, if any, cannot show that accused committed the particular
offence then the charge can be quashed.
In case of State of M.P. -Vrs.- Awadh Kishore Gupta
reported in (2004) 1 Supreme Court Cases 691, it is held that
when charge is framed, at that stage, the Court has to only prima
facie be satisfied about existence of sufficient ground for proceeding
against the accused. For that limited purpose, the Court can evaluate
materials and documents on records but it cannot appreciate
evidence.
In case of A.R. Saravanan -Vrs.- State reported in
2003 Criminal Law Journal 1140, it is held as follows:-
"7. Under section 239 of Cr.P.C., it is the duty of
the trial Court to look into whether there is ground
for presuming commission of offence or whether
the charge is groundless. The trial court is required
to see whether a prima facie case pertaining to the
commission of offence is made out or not. At the
stage of 239 of Cr.P.C., the trial court has to
examine the evidence only to satisfy that prima
facie case is made out or not. The Magistrate has to
consider the report of the prosecution, documents of
both sides, hear the arguments of the accused and
prosecution and arrive at a conclusion that the
materials placed, on their face value would furnish a
reasonable basis or foundation for accusation.
8. The words "groundless" employed in Section 239
means there is no ground for presuming that the
accused is guilty. When there is no ground for
presuming that the accused has committed an
offence, the charge must be considered as
groundless."
At the stage of framing of charge, in rare and exceptional
cases, if the accused produces materials before the High Court which
is based on sound, reasonable and indubitable facts and cannot be
justifiably refuted by the prosecution and which are of sterling and
impeccable quality or on the basis of admitted documents which
would rule out and displace the assertions contained in the charges
levelled against him, in order to prevent abuse of process of the
Court and to secure the ends of justice, the High Court even at the
stage of section 239 of Cr.P.C. can take into account such materials.
However, the High Court at that stage should not enter into
appreciation of evidence to verify if the defence plea can be
established by the accused or not.
In case of State of Orissa -Vrs.- Debendra Nath Padhi
reported in (2005) 30 Orissa Criminal Reports (SC) 177, it is held
as follows:-
"7. Similarly, in respect of warrant cases triable by
Magistrates, instituted on a police report, Sections
239 and 240 of the Code are the relevant statutory
provisions. Section 239 requires the Magistrate, to
consider 'the police report and the documents sent
with it under Section 173 and, if necessary, examine
the accused and after giving accused an opportunity
of being heard, if the Magistrate considers the
charge against the accused to be groundless, the
accused is liable to be discharged by recording
reasons thereof.
8. What is to the meaning of the expression 'the
record of the case' as used in Section 227 of the
Code. Though the word 'case' is not defined in the
Code but Section 209 throws light on the
interpretation to be placed on the said word. Section
209 which deals with the commitment of case to
Court of Session when offence is triable exclusively
by it, inter alia, provides that when it appears to the
Magistrate that the offence is triable exclusively by
the Court of Session, he shall commit 'the case' to
the Court of Session and send to that Court 'the
record of the case' and the document and articles, if
any, which are to be produced in evidence and
notify the Public Prosecutor of the commitment of
the case to the Court of Session. It is evident that the
record of the case and documents submitted
therewith as postulated in Section 227 relate to the
case and the documents referred in Section 209.
That is the plain meaning of Section 227 read with
Section 209 of the Code. No provision in the Code
grants to the accused any right to file any material
or document at the stage of framing of charge. That
right is granted only at the stage of the trial.
xxx xxx xxx xxx
16. All the decisions, when they hold that there can
only be limited evaluation of materials and
documents on record and sifting of evidence to
prima facie find out whether sufficient ground exists
or not for the purpose of proceeding further with the
trial, have so held with reference to materials and
documents produced by the prosecution and not the
accused. The decisions proceed on the basis of
settled legal position that the material as produced
by the prosecution alone is to be considered and not
the one produced by the accused. The latter aspect
relating to the accused though has not been
specifically stated, yet it is implicit in the decisions.
It seems to have not been specifically so stated as it
was taken to be well settled proposition. This
aspect, however, has been adverted to in State Anti-
Corruption Bureau, Hyderabad and Anr. Vs. P.
Suryaprakasam : 1999 SCC (Crl.) 373 where
considering the scope of Sections 239 and 240 of
the Code, it was held that at the time of framing of
charge, what the trial Court is required to, and can
consider are only the police report referred to under
Section 173 of the Code and the documents sent
with it. The only right the accused has at that stage
is of being heard and nothing beyond that (emphasis
supplied). The judgment of the High Court quashing
the proceedings by looking into the documents filed
by the accused in support of his claim that no case
was made out against him even before the trial had
commenced was reversed by this Court. It may be
noticed here that learned counsel for the parties
addressed the arguments on the basis that the
principles applicable would be same - whether the
case be under Sections 227 and 228 or under
Sections 239 and 240 of the Code.
xxx xxx xxx xxx
18.......The scheme of the Code and object with
which Section 227 was incorporated and Sections
207 and 207(A) omitted have already been noticed.
Further, at the stage of framing of charge, roving
and fishing inquiry is impermissible. If the
contention of the accused is accepted, there would
be a mini trial at the stage of framing of charge.
That would defeat the object of the Code. It is well-
settled that at the stage of framing of charge the
defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel
for the accused would mean permitting the accused
to adduce his defence at the stage of framing of
charge and for examination thereof at that stage
which is against the criminal jurisprudence. By way
of illustration, it may be noted that the plea of alibi
taken by the accused may have to be examined at
the stage of framing of charge if the contention of
the accused is accepted despite the well settled
proposition that it is for the accused to lead
evidence at the trial to sustain such a plea. The
accused would be entitled to produce materials and
documents in proof of such a plea at the stage of
framing of the charge, in case we accept the
contention put forth on behalf of the accused. That
has never been the intention of the law well settled
for over one hundred years now. It is in this light
that the provision about hearing the submissions of
the accused as postulated by section 227 is to be
understood. It only means hearing the submissions
of the accused on the record of the case as filed by
the prosecution and documents submitted therewith
and nothing more. The expression 'hearing the
submissions of the accused' cannot mean
opportunity to file material to be granted to the
accused and thereby changing the settled law. At the
state of framing of charge hearing the submissions
of the accused has to be confined to the material
produced by the police.
xxx xxx xxx xxx
23. As a result of aforesaid discussion, in our view,
clearly the law is that at the time of framing charge
or taking cognizance the accused has no right to
produce any material. Satish Mehra's case holding
that the Trial Court has powers to consider even
materials which accused may produce at the stage of
section 227 of the Code has not been correctly
decided."
In the case of Hem Chand -Vrs.- State of Jharkhand
reported in (2008) 40 Orissa Criminal Reports (SC) 272, it is held
as follows:-
"8. It is beyond any doubt or dispute that at the
stage of framing of charge, the Court will not weigh
the evidence. The stage for appreciating the
evidence for the purpose of arriving at a conclusion
as to whether the prosecution was able to bring
home the charge against the accused or not would
arise only after all the evidences are brought on
records at the trial.
9. It is one thing to say that on the basis of the
admitted documents, the appellant was in a position
to show that the charges could not have been framed
against him, but it is another thing to say that for the
said purpose, he could rely upon some documents
whereupon the prosecution would not rely upon.
xxx xxx xxx xxx
12. The learned counsel for the CBI is, thus correct
in his submission that what has been refused to be
looked into by the learned Special Judge related to
the documents filed by the appellant along with his
application for discharge.
The Court at the stage of framing charge
exercises a limited jurisdiction. It would only have
to see as to whether a prima facie case has been
made out. Whether a case of probable conviction
for commission of an offence has been made out on
the basis of the materials found during investigation
should be the concern of the Court. It, at that stage,
would not delve deep into the matter for the purpose
of appreciation of evidence. It would ordinarily not
consider as to whether the accused would be able to
establish his defence, if any."
In the case of Rukmini Narvekar -Vrs.- Vijaya
Satarkekar and others reported in (2008) 41 Orissa Criminal
Reports (SC) 853, it is held as follows:-
"9. In my view, therefore, there is no scope for the
accused to produce any evidence in support of the
submissions made on his behalf at the stage of
framing of charge and only such materials as are
indicated in Section 227 Cr.P.C. can be taken into
consideration by the learned Magistrate at that
stage. However, in a proceeding taken therefrom
under Section 482 Cr.P.C., the Court is free to
consider material that may be produced on behalf of
the accused to arrive at a decision whether the
charge as framed could be maintained. This, in my
view, appears to be the intention of the legislature in
wording Sections 227 and 228 the way in which
they have been worded and as explained in
Debendra Nath Padhi case by the larger Bench
therein to which the very same question had been
referred.
xxx xxx xxx xxx
28(17)...Thus in our opinion, while it is true that
ordinarily defence material cannot be looked into by
the Court while framing of the charge in view of
D.N. Padhi's case, there may be some very rare and
exceptional cases where some defence material
when shown to the trial Court would convincingly
demonstrate that the prosecution version is totally
absurd or preposterous, and in such very rare cases,
the defence material can be looked into by the Court
at the time of framing of the charges or taking
cognizance.
xxx xxx xxx xxx
29(18). In our opinion, therefore, it cannot be said
as an absolute proposition that under no
circumstances can the Court look into the material
produced by the defence at the time of framing of
the charges, though this should be done in very rare
cases i.e. where the defence produces some material
which convincingly demonstrates that the whole
prosecution case is totally absurd or totally
concocted. We agree with Sri Lalit that in some
very rare cases the Court is justified in looking into
the material produced by the defence at the time of
framing of the charges, if such material
convincingly establishes that the whole prosecution
version is totally absurd, preposterous and
concocted."
After hearing the learned counsel for both the sides, we
are of the view that the learned trial Court has examined the
materials on record carefully and since it was satisfied that prima
facie case is made out and it cannot be said that the charge against
the two petitioners would be groundless, it has rightly rejected the
petition filed by the petitioners under section 239 of Cr.P.C.
Learned counsel for the petitioners has annexed the
income tax returns of petitioner no.2 from 1984-85 till 2006-07, the
income tax returns of first son of the petitioners namely Chinmaya
who is stated to a Computer Engineer from the year 2002 till the
assessment year 2006-07, the income statement of second son of the
petitioners namely Tanmay who is stated to have been served in
UNITEL and BAJAJ ALLIANZ. Whether the petitioner no.2 had
the income from known and lawful sources for which she was filing
income tax returns, how much contribution the two sons of the
petitioners had made from their salaries for the construction of the
house as contended by the learned counsel for the petitioners are
required to be proved by the petitioners during trial in accordance
with law for the appreciation of the trial Court. Similarly if some
other income from the known and lawful sources of the petitioners
have been left out, the same are to be brought on record by the
petitioners during trial so that the learned trial Court can consider the
same. At this stage, we cannot consider those documents which are
not admitted by the prosecution.
In view of the foregoing discussions, we find sufficient
grounds exists for the purpose of proceeding further with the trial
against the petitioners and we do not find that any ground to
interfere with the impugned order.
Accordingly, the CRLMP being devoid of merits, stands
dismissed.
Interim order passed on 21.10.2024 stands vacated.
Learned trial Court shall do well to expedite the framing
of the charge and proceed with the trial.
It is made clear that we have not expressed any opinion
on the merits of the case and while adjudicating the guilt or
otherwise of the petitioners, the learned trial Court shall strictly take
into the evidence adduced by both the sides during trial.
A copy of this order be sent to the learned trial Court
forthwith.
(S.K. Sahoo)
Judge
(Savitri Ratho)
Judge
Sukanta/Puspa
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 06-Mar-2025 14:48:16
