Orissa High Court
Upendra Sethi & Others vs State Of Odisha .... Opposite Party on 18 November, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLREV No.611 of 2024
Upendra Sethi & others .... Petitioners
Mr. S.K. Mishra, Senior Advocate
Mr. J. Pradhan, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. P.K. Sahoo, ASC
AND
CRLREV No.620 of 2024
Manas Ranjan Sahu & others .... Petitioners
Mr. S.K. Mishra, Senior Advocate
Mr. J. Pradhan, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. P.K. Sahoo, ASC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 14.08.2025
DATE OF JUDGMENT: 18.11.2025
1.
The revisions have been clubbed together as both relate to
a common incident.
2. Instant revision petitions have been filed by the
petitioners assailing the impugned orders dated 22nd May,
2024 passed in connection with G.R. Case No.1258 and
1257 of 2001 (corresponding to Puri Town PS Case Nos.
223 and 222 dated 16th October, 2001 respectively) by the
learned S.D.J.M., Puri, whereby, the applications moved by
them demanding their discharge in terms of Section 239
Cr.P.C. were rejected on the grounds stated.
3. The petitioners are facing prosecution for the offences
under Sections 147, 148, 341, 323,294, 448, 426, 427 and
Section 149 I.P.C combinedly before the learned court
below after the F.I.Rs. were lodged with regard to an
incident dated 16th October, 2001 alleging therein by the
informants that in the afternoon at around 2-3 P.M., some
members of the reserve police arrived in plain clothes,
entered inside the Lawyers and Clerks Association Hall and
committed the overt acts described therein including
damaging furnitures etc. and took away cash with them.
4. The copies of the F.I.Rs. are at Annexure-1 (in both the
cases). After closure of investigation, the local police
submitted separate chargesheets as per Annexure-2 against
the petitioners. At the time of framing of charge, the
petitioners claimed discharge under Section 239 Cr.P.C. for
want of sanction, they being the Government Servants and
also on such other grounds but the said request as per
Annexure-3 were declined leading to the passing of the
impugned orders i.e. Annexure-4.
5. According to the petitioners, the decision of the learned
Court below is erroneous and hence, liable to be set aside,
more so when, there is no admissible evidence on record to
so as to prove their involvement, inasmuch as, no T.I.
Parade was conducted to identify the persons responsible for
the alleged mischief. It is pleaded that the prior sanction was
necessary to prosecute the petitioners but the same was
obtained, as the learned court below did not consider the
said aspect while taking cognizance of the offences and
finally rejected the applications filed under Section 239
Cr.P.C., hence, the impugned orders as at Annexure-4
deserve to be interfered with and set aside followed by their
discharge forthwith.
6. Heard Mr. Mishra, learned Senior Advocate for the
petitioners and Mr. Sahoo, learned ASC for the State.
7. Mr. Mishra, learned Senior Advocate for the
petitioners submits that the learned Court below ought to
have considered sanction necessary under Section 197
Cr.P.C., the petitioners being members of the APR Force
and the alleged mischief purportedly to have been
committed, while discharging their official duties but it has
been lost sight of by the learned Court below and that apart,
no T.I. Parade was conducted to identify the men
responsible for the mischief, as no one has been named in
the F.I.Rs. It is further submitted that in absence of any such
materials to connect the petitioners' demand for discharge
was ignored on the premise that the cognizance of the
offences has already been taken in the year, 2001. The
contention is that all such plea was allowed to be raised at
the appropriate stage obviously at the time of framing of
charge in view of the Court's orders dated 24th March, 2023
in CRLMC Nos.2064 and 2065 of 2010, hence, the learned
Court below should have considered discharge of the
petitioners in absence of proper identification with
admissible evidence and prior sanction.
8. Mr. Sahoo, learned ASC for the State, on the other
hand, submits that the impugned orders at Annexure-4 are
perfectly justified since the alleged mischief was committed
by the petitioners and others identified during investigation.
9. The learned Court below while dealing with the
applications under Section 239 Cr.P.C concluded that the
order of cognizance dated 6th November, 2001 was followed
by issuance of process to the petitioners and since, the same
has remained undisturbed, the plea of sanction cannot be
considered as any such exercise of jurisdiction at the stage
of framing of charge would amount to review of its own
decision on cognizance with an opinion expressed that lack
of sanction from the competent Authority should not be a
ground for discharge.
10. The chargesheets have been filed for alleged offences
excluding Sections 323,506 and 380 I.P.C as it could not be
established against the petitioners. It is not revealed from
the chargesheets at Annexure-4 as to whether the petitioners
were on duty at the relevant point of time and did the
mischief, The chargesheet does not clearly reveal so either.
11. If no T.I. parade was held soon after the alleged
incident, identification of the miscreants would depend upon
other evidence collected during investigation to arrive at a
conclusion as to whether the mischief committed by the
petitioners. Furthermore, requirement of sanction was also a
matter that needed attention but it has been avoided by the
learned Court below merely for the reason that there is an
order of cognizance of the offences against the petitioners
and it lacks jurisdiction to reconsider the plea of their
discharge. According to the Court, any such decision on
sanction, if not agitated before but pleaded at a later stage,
even with an order of cognizance, at the time of framing of
charge against the accused, a Court has the jurisdiction to
consider it. As such a question and requirement of sanction
or prosecution is related to the jurisdiction of the Court.
12. Turning to the facts of the case, the alleged occurrence
is of the year 2001 and it had taken place inside the Bar
Association Hall at Puri, during and in course of which, it
has been alleged that a group of APR Force barged inside in
plain dress and assaulted the members of the Bar
indiscriminately and injured some of them and damaged
articles lying around worth of Rs.50,000/- and in course of
the events, removed cash from the cash box of the Bar
Association and also from one of the members of the
Moharir Association, who were also abused by them in
filthy language. Upon the F.I.Rs. lodged, investigation was
taken up and finally on completion of investigation, the
chargesheets were submitted in the year 2001 itself. In the
meanwhile, the CRLMCs were filed as made to reveal from
the record, pursuant to which, before commencement of the
trial, at the time of framing of charge, the applications under
Section 239 Cr.P.C seeking discharge of the petitioners
were filed with the claim that there is no material on record
admissible under law to prove their involvement in the
alleged incident and also due to want of sanction, since, all
are Government servants. However, the said applications
were disposed of and discharge of the petitioners was
declined by the impugned orders dated 22nd May, 2024.
13. Perused the LCRs received by the Court.
14. On a reading of the LCRs, it is made to understand that
almost all the witnesses failed to disclose the names of the
miscreants as they were unknown to them. In fact, one or
two names were disclosed by couple of witnesses during
investigation. Almost all witnesses examined under Section
161 Cr.P.C. though described the alleged incident and the
manner in which the mischief was committed by the group
of men but failed to disclose their names for having no prior
acquaintance. During the incident, because of the overt acts
by the miscreants, admittedly, some lawyers of the Bar
Association received injuries, whose names have been
disclosed in one of the F.I.Rs. Mr. Mishra, learned Senior
Advocate for the petitioners would submit that there is no
such admissible evidence to implicate the petitioners and
that too when T.I. parade was not held after the alleged
incident as such an exercise could have revealed the identity
of the miscreants. The contention is that none present at the
spot could reveal identity of the miscreants. Since the
miscreants were unknown almost all witnesses claimed that
they can identify them, if confronted. It is claimed that no
T.I. parade was held, still the petitioners were
chargesheeted. On what basis, the petitioners have been
roped in, according to Mr. Mishra, learned Senior Advocate,
is not revealed from the record and under such
circumstances, the learned Court below ought to have
discharged them exercising powers under Section 239
Cr.P.C.
15. The learned Court below denied discharge of the
petitioners on the premise that there is already an order of
cognizance, hence, it has no jurisdiction to review the
decisions. According to the Court, such conclusion is clearly
erroneous. In fact, upon receiving a chargesheet, a Court
considers taking cognizance of the offences, which is quite
distinct from exercising jurisdiction under Section 239
Cr.P.C. It is not that a Court is simply to refrain itself from
denying discharge merely on the ground of having taken
cognizance of the offences earlier. For any such order of
cognizance followed by a decision on discharge of the
accused is permissible and to be independently examined
and it does not amount to review and therefore, the learned
Court below was grossly at error to reach at such a
conclusion.
16. As regards, sanction under Section 197 Cr.P.C., as it is
well understood, the same is necessary as against a public
servant, who commits any excess while discharging official
duty. Law is settled that whether any offence has been
committed, while on duty, it has to be determined from the
materials on record. If a public servant while acting or
purporting to act in the discharge of his official duty and
committed the excess, which is an offence punishable under
law, under such circumstances alone sanction under Section
197 Cr.P.C. is required. In P.K. Pradhan Vrs. State of
Sikkim (2001) 6 SCC 704, it has been held and concluded
that the test to determine the need of sanction is to confirm
that the act complained of is an offence and it must have
been done in discharge of official duty. Such act of a public
servant alleged to be excess, must have a reasonable nexus
with the official duty. In the said decision, it has been held
further that it does not matter, whether the act exceeds what
is strictly necessary for the discharge of the official duty as
such a question would arise only at a later stage when the
trial proceeds. But no sanction is required, as it has been the
settled law, where, there is no any connection between the
act alleged and the official duty. In the above decision, it has
also been held that the claim of the accused that the act
alleged was done reasonably and not in pretended course of
the official duty can be examined during trial by providing
an opportunity to defend and prove the same and in such
cases, the question of sanction should be left open to be
considered towards the end at the time of delivery of
judgment. It depends on, whether, it is possible for the
Court to ascertain from the record, whether the act
complained of was committed in discharge of official duty.
But in case, where there is a difficulty to arrive at any such
conclusion, considering the plea of an accused, question of
requirement of sanction under Section 197 Cr.P.C. may
have to be examined at the time of conclusion of trial. In D.
Devaraja Vrs. Owais Sabeer Hussain (2020) 7 SCC 695,
the Apex Court reiterated the law relating to the requirement
of sanction, in a case where a police officer allegedly
committed an offence and concluded therein that every
offence committed does not attract Section 197 Cr.P.C. and
such protection and immunity against prosecution as it has
limitations, which is available only when the alleged act is
done by a public servant reasonably connected with the
discharge of his official duty and such official responsibility
is not merely a cloak for the objectionable act. It is also held
therein that an offence committed entirely outside the scope
of the duty of a public servant would certainly not require
sanction. The Court is not to burden the judgment with other
citations except referring to one of the earliest case laws of
the Apex Court in Matajog Dobey Vrs. H.C. Bhari (1955)
2 SCC 388, wherein, it has been held that the test to
determine whether the sanction is necessary is that there
must be a reasonable connection between the alleged act and
discharge of the official duty by a public servant and such
act must bear relation to the official duty that the accused
could lay a reasonable but not a pretended or fanciful claim
that he did it in course of performance of official duty and
therein, it was as against a background, where, lawful search
of premises conducted by the Income Tax officials pursuant
to warrants issued and use of force by the said officials to
remove obstructions resulting in injuries to some and in that
context, it was held that sanction under Section 197 Cr.P.C.
is necessary as the accused officials during discharge of
their duty had a right to remove or cause to be removed the
obstructions or resistance by employing reasonable force.
The issue, whether, the alleged act involved use of force in
excess of the reasonable force was held to be considered
during trial, however, sanction under Section 197 Cr.P.C
was necessary before prosecuting the said officials.
17. In the case at hand, State has not denied about the
claim of having no T.I. parade held. The contention of Mr.
Mishra, learned Senior Advocate that there is no admissible
evidence to prosecute the petitioners or to make them face
the trial. Upon a reading of the statements of the witnesses,
as discussed before, it is understood that a group of men
belonging to the APR Force committed the mischief. The
names of one or two could be revealed found present
leaving the premises. The question is, whether, for having
no T.I. parade held and absence of any direct evidence is a
ground to discharge the petitioners? As concluded before
the order of cognizance is not a stumbling block for a Court
to consider discharge of an accused. Irrespective of any such
order of cognizance, when an accused pleads for discharge
referring to the chargesheet and connected materials filed
therewith, an exercise, which does not arise before for
consideration, it shall be the bounden duty of the Court to
examine the same and to take a decision, whether, to go for
framing of charge against him.
18. According to the Court, framing of the charge is
permissible even if a T.I. parade was not conducted. Such a
parade and the evidence by identification is only a method
adopted during investigation. The validity of framing of
charge, rather, depends on whether the Court finds sufficient
evidence to proceed and prosecute the case based on the
materials filed along with the chargesheet. That apart, T.I.
parade is not the only means to identify an accused. It is, in
fact, primarily an investigative tool, not a substantive piece
of evidence and the purpose is to test the memory and the
trustworthiness of witnesses, who did not know him before.
A T.I. parade serves to corroborate or confirm the in-court
identification of the accused. The substantive evidence of
the identification by a witness is in Court and not the T.I.
parade itself. The law does not mandate the T.I. parade in
every case nor does an accused have a right to demand one.
A T.I. parade may not be necessary in situations like where
the accused were already known to the witness or he was
caught red-handed at the crime spot or where he refuses to
participate in the parade. At the stage of framing of charge,
the Court's task is to assess, whether, there is a prima facie
case based on the chargesheet and the documents filed
therewith. In the considered view of the Court, valid charge
may be framed even without a T.I. parade conducted in the
circumstances, where, the chargesheet contains enough
evidence, such as, motive, recovery of incriminating articles
or other materials linking the accused to the crime etc. It is
to reiterate that a T.I. parade is only one form of
corroboration and if other evidence supports the conclusion
at the end of investigation with regard to the identity of the
accused, lack of a T.I. parade is not fatal to the framing of
charge. But, it has to be kept in mind that there is a
consequence as to absence of a T.I. parade held. While not
mandatory for framing of charge, lack of T.I. parade can
affect the prosecution case later on. If the victims do not
know the accused beforehand, the identification made for
the first time in Court may be considered weak evidence as
conviction cannot be based solely on such identification and
may require corroboration. If the T.I. parade was flawed or
not conducted at all and the witnesses did not previously
know the accused, it creates a serious doubt about the
liability of the in-court identification and in such cases, a
Court must have to be extremely cautious before basing a
conviction on such identification. So, the conclusion of the
Court is that lack of T.I. parade though not mandatory at the
time of framing of charge but it can weaken the prosecution
case during trial and could result in acquittal.
19. In the case of the petitioners, as it appears, there was an
incident few hours before on the same day and as per the
investigation, it is revealed that during that time, there was a
hitch between the lawyers of the Puri Bar Association and
escort party Constable, namely, B.S. Mallick, as a result of
which, the latter was manhandled and though the matter was
subsided due to intervention of the judicial staff and others
but on the same day, in the afternoon, some members of the
APR Force retaliated. For the first incident, Town P.S. Case
No.221 dated 16th October, 2001 was registered and
according to the investigation, it was in retaliation to the
same that the mischief was committed inside the Bar Hall
and some members of the Force entered inside in plain
clothes armed with wooden planks and assaulted
indiscriminately, as a result of which, some of the
Advocates sustained injuries. The injuries found on the
person of the victim lawyers were found to be simple in
nature but the alleged incident proved the involvement of
some members of the APR Force, which led to the filing of
the chargesheets. Even though, there has been no T.I. parade
held or any of the witnesses to the incident could reveal the
names or identification of the miscreants but the chargesheet
claimed the mischief to have committed by a group of men
belong to the APR Force. The investigation identified the
persons responsible for the alleged mischief with the filling
of the chargesheet. As to the source of the information
revealing the involvement of the petitioners with
incriminating materials is not reveal from the record. The
chargesheet is filed against the petitioners for having
participated in the alleged incident. The very filing of the
chargesheet could be said to be sufficient to make the
petitioners face the trial. A prima facie case was found
against the petitioners, hence, the chargesheets have been
filed against them for the alleged incident. But, under such
circumstances, it has to be concluded that the Court is to
examine the incriminating materials which exist against the
petitioners to support the prosecution case in absence of T.I.
parade. An identification may take place during trial but it
could be of no help since, such identification would take
place almost after 24-25 years. The record does not reveal
the details of the source of information or any such
materials or evidence to link the petitioners with the alleged
incident.
20. The learned court below does not appear to have applied
its judicial mind to the materials on record as it has to reflect
upon all such incriminating material to reach at a conclusion
before denying discharge of the petitioners, an exercise,
which has not been undertaken. Rather, the order of
cognizance has influenced the learned Court below not to
consider the plea of discharge of the petitioners on a wrong
premise that the same would amount to review of such an
order. A Court is required to highlight upon the materials on
record filed along with the chargesheet though it is not to
assign reasons or discuss evidence in detail at the time of
framing of charge. But, it should reveal from the order that
all such materials have been taken judicial notice of, which
suggested the involvement of the accused persons, hence,
the need for framing of charge. But in the instant case, there
has been no any revelation made as to what persuaded the
learned Court below in dismissing the plea of discharge as
advanced by the petitioners. It is well settled law that a
detailed discussion is not to be adverted to while
considering framing of charge and mere suspicion is
sufficient but a conclusion shall have to be based on
incriminating materials in somewhere connecting the dots,
in absence of direct evidence, linking the accused persons
chargesheeted with the alleged incident. If the incident in
the manner described in the chargesheet is accepted at its
face value, it would not be incorrect to hold that no sanction
under Section 197 Cr. P.C. is necessary as it was no part of
any member of a disciplined force to commit any excess
while not on duty or to be involved in any kind of
vandalism. In fact, the mischief of such nature cannot be
said to have ever been committed by a public servant while
acting and purporting to act in the discharge of official duty,
rather, it would be a criminal act simpliciter, for which, one
cannot demand protection or any kind of immunity.
21 Having said that, the Court is of the view that the learned
Court below is required to take into account all the above
aspects discussed and highlighted upon at the time of
considering the plea of discharge of the petitioners. Even
though, considerable time has elapsed and such an exercise
could be said to be unusual but it shall have to be resorted
to. On any such ground of the alleged incident having taken
place long before, the petitioners cannot claim discharge.
The framing of charge or otherwise is rather dependent on
existence of incriminating materials, hence, therefore,
discharge cannot be claimed on any such ground as has been
advanced. The Court is, therefore, of the final view that the
impugned orders dated 22nd May, 2024 calls for interference
with a direction for the learned Court below to cross verify
the source of information with any other incriminating
materials collected against the petitioners for a fresh
decision on their applications filed under Section 239
Cr.P.C. keeping in view the discussions held herein above
since framing of charge is not an empty formality, rather, an
onerous responsibility and it shall have to be based on
materials of incriminating nature available on record.
22. Accordingly, it is ordered.
23. In the result, the revision petitions stand allowed. As a
necessary corollary, the impugned orders dated 22nd May,
2024 in G.R. Case Nos. 1258 and 1257 of 2001 are hereby
set aside with a direction to the learned S.D.M., Puri to
freshly consider the plea vis-à-vis discharge of the
petitioners with the restoration of the applications filed after
inviting the prosecution to identify the incriminating
materials on record reasonably sufficient to frame charge
against them and thereafter, to pass a reasoned order as per
and in accordance with law at the earliest preferably within
a period of four weeks from the date of receipt of a copy of
this judgment.
(R.K. Pattanaik)
Judge
Balaram
Designation: Personal Assistant
