Lingaraj Behera vs State Of Odisha .... Opposite Party
2025 Latest Caselaw 7982 Ori

Orissa High Court

Lingaraj Behera vs State Of Odisha .... Opposite Party on 9 September, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

       IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                 CRLREV No.666 of 2024
       Lingaraj Behera                     ....         Petitioner
                                  Mr.Tirth Kumar Sahu, Advocate


                                  -Versus-

       State of Odisha                       ....       Opposite party
                                                  Mr. P.K. Ray, AGA

                CORAM:
                JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT: 09. 09.2025


      1.

Instant revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.') is filed by the petitioner assailing the impugned order dated 2nd September, 2024 passed in connection with Criminal Appeal No. 06 of 2024 as at Annexure-5 by learned Additional Sessions Judge, Titilagarh arising out of S.T. Case No.28/1 of 2023-24, whereby, an application seeking suspension of sentence under Section 389 Cr.P.C. moved by him demanding his release from judicial custody has been disallowed.

2. The facts pleaded on record reveal that the petitioner faced trial in S.T. Case No. 28/1 of 2023-24 and was ultimately convicted under Sections 489-B and 489-C IPC and directed him to undergo R.I. for seven years as the

maximum sentence awarded along with fine of Rs. 5,000/-. Against the order of conviction and sentence, the petitioner preferred Criminal Appeal No. 06 of 2024 and therein, the application under Section 389(1) Cr.P.C. was pressed into service seeking his release on bail with the suspension of sentence but it has not been found favour with and was rejected by the learned Additional Sessions Judge, Titilagarh as per Annexure-5 and the same is under challenge.

3. On a written complaint, CID, CB, STF P.S. Case No. 4 dated 2nd February, 2023 was registered under Sections 420,468,471,489-A,489-B.489-C,489-D and 120-B of IPC and later on, a preliminary chargesheet was filed on 3rd April, 2023, a copy of which is at Annexure-2 series and subsequent thereto, the learned Trial Court framed charge against the petitioner and proceeded with the trial, during which, nine chargesheeted witnesses were examined from the side of the prosecution and at last, the petitioner was convicted only for the offences under Sections 489-B & 489-C IPC. The petitioner, thereafter, filed the appeal before the learned court below challenging the order of conviction and therein, moved the application under Section 389(1) Cr.P.C. to suspend the sentence and to release him on bail pending its disposal, however, it stood disallowed vide Annexure-5.

4. A copy of the judgment of the learned Assistant Sessions Judge, Titilagarh in S.T. Case No. 28/1 of 2023-24 is at Annexure-4 and the same is perused.

5. Heard Mr. Sahu, learned counsel for the petitioner and Mr. Ray, learned AGA for the State.

6. The grounds upon which the impugned order at Annexure-5 is questioned are as follows:(i) that, the learned court below failed to consider the procedural lapses and lack of corroborative evidence to prove the case against the petitioner, rather, heavily relied upon uncorroborated and inconsistent evidence of the official witnesses ignoring the fact that the independent corroboration in support of search and seizure is essential and necessary not to have been held in accordance with Section 100 Cr.P.C. and hence, failure to comply the statutory safeguards leads to substantial doubt about the reliability and fairness of the evidence collected;

(ii) that, there has been lapses in the documentation of the seized counterfeit currency notes and that affects credibility of the evidence produced against the petitioner, inasmuch as, due to such lapse or procedural oversight, it has led to a compromise in the accuracy of the evidence since the seizure does not reveal a detailed itemized denominations, which is a standard requirement in documenting critical evidence concerning economic offences; (iii) that, by keeping the investigation open in terms of Section 173(8) Cr.P.C. and filing a preliminary chargesheet, such a course of action, raises a serious concern about the impartiality and integrity of the investigation, all the more when, there is absence of mens rea on the part of the petitioner as he consistently maintained ignorance regarding the counterfeit currency notes found in his possession for having no knowledge about

its source and absence of evidence in that regard has greatly undermined the prosecution case; (iv) that, the evidence of the non-official witnesses, namely, P.Ws. 1, 2 & 3 does not prove the case with regard to the seizure and there has been absence of independent corroboration, hence, when the evidence is not clear, consistent and beyond reasonable doubt and the learned court below has overlooked the same and preferred the evidence of the prosecution instead; (v) that, the petitioner has been in custody since 3rd April, 2023 and such prolonged detention without adequate evidence on record violates his right to personal liberty guaranteed under Article 21 of the Constitution of India and hence, it hugely impacts the right to appeal as acknowledged by the Apex Court in Hussainara Khatoon and others Vrs. Home Secretary, State of Bihar (1980) 1 SCC 81emphasizing the importance of fair trial avoiding long detentions; (vi) that, the offences under Sections 489-B and 489-C IPC are not prima facie established since the petitioner was unaware of the nature of the currency notes that negates the element of mens rea; (vii) that, finally, the petitioner having a fair chance of success in the appeal in view of the procedural lapses and the fact that the seized currency notes with the exhibits sent for forensic examination returned with an endorsement for having not matched with the description detailed in the forwarding report and that the expert, who conducted the test was not examined from the side of the prosecution.

7. Mr. Sahu, learned counsel for the petitioner submits that due to the inconsistent evidence and lack of

corroboration to support the charge, the petitioner ought to have been allowed to go on bail with suspension of sentence under Section 389(1) Cr.P.C. and to advance such an argument, he relies on a decision of the Apex Court in Omprakash Sahni Vrs. Jai Shankar Chaudhary & another (2023) 91 OCR (SC) 84. It is contended that in absence of clear and concrete evidence to substantiate the charge and particularly when, there has been discrepancy noticed by the laboratory upon receiving the exhibits which apparently mismatched the details of the forwarding report, the lapses being conspicuously revealed from record, the petitioner, who has been in custody ever since arrested could have been considered for release suspending sentence under Section 389 (1) Cr.P.C. Since, the forensic examiner has not been a witness of the prosecution during trial, Mr. Sahu, learned counsel cites a decision of the Apex Court in State of Himachal Pradesh Vrs. Jai Lal & others (1999) Supp. 2 SCR 318 to contend that the evidence of such a witness is material so as to prove the charge in respect of the fake currency notes against the petitioner. With the above pleading and submission and reiterating the lapses on record, Mr. Sahu, learned counsel submits that it is a fit case where the petitioner, since having a fair chance to succeed in the appeal, should have been allowed to go on bail with suitable conditions imposed upon suspension of sentence under Section 389(1) Cr.P.C. but as all such aspects having been lost sight of by the learned court below, the impugned order as at Annexure-5 suffers from legal infirmity.

8. On the contrary, Mr. Ray, learned AGA for the State justifies the impugned decision of the learned Additional Sessions Judge, Titilagarh, while dealing with the appeal and submits that huge numbers of fake currency notes of Rs.31,27,500/- have been recovered from the petitioner and in presence of the witnesses, seizure of the same was carried out and such recovery and seizure is established by evidence before the learned Trial Court. It is further submitted that the evidence of the official witnesses including informant received corroboration independently and hence, to claim that, there is no corroboration at all, is totally incorrect. The contention is that the fake currency notes of different denominations were recovered from the exclusive possession of the petitioner, who failed to offer any plausible explanation and in view of such recovery followed by seizure from him, the learned Trial Court rightly found the charges proved and passed the order of conviction and against the aforesaid background, the learned court below could not have suspended the sentence under Section 389(1) Cr.P.C. even though the judicial custody is ever since the date of arrest i.e. 2nd February, 2023. It is further submitted that a preliminary chargesheet has been filed on 3rd Aril, 2023, whereafter, the petitioner was put to trial, whereas, another accused, whose name was disclosed or revealed during investigation could not be apprehended and therefore, the investigation was kept open in terms of Section 173(8) Cr.P.C. and under such circumstances and in view of the recovery and seizure of the currency notes found and proved to have been fake after forensic examination report, the learned court below rightly

declined release of the petitioner pending disposal of the appeal.

9. Section 389 Cr.P.C. deals with suspension of sentence pending disposal of appeal and release of the convict on bail and it stipulates that the Appellate Court may after considering objection of the prosecution for reasons to be recorded direct that the execution of sentence or order appealed against be suspended and if he is in confinement, him to be released on bail.

10. In B.R. Kapur Vrs. State of T.N. & another (2001) 7 SCC 231, it has been held that the Appellate Court cannot suspend the sentence, while exercising the power under Section 389 Cr.P.C. but to defer the execution thereof. Essentially, the jurisdiction under Section 389(1) Cr.P.C. lies with the Court in appeal to consider release of the convict deferring the execution of sentence but it shall have to be by assigning reasons therefor.

11. The Apex Court in Kishori Lal Vrs. Rupa & others (2004) 7 SCC 638 outlined the factors that require to be taken judicial notice of while dealing with Section 389 Cr.P.C. in cases involving serious offences like murder etc. and therein, it has been held and observed that the Appellate Court is duty bound to objectively assess and record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail to the convict. It is also held therein that the mere fact that during the trial, the convicts were granted bail and there was no allegation of

misuse of liberty by them is really not of much significance, since the effect of bail granted during trial becomes irrelevant on its completion and after the accused persons are found guilty, hence, such a plea does not per se warrant suspension of execution of sentence and what really matters is, whether, reasons do really exist to suspend its execution.

12. Similarly, in Sidhartha Vashisht @ Manu Sharma Vrs. State (NCT of Delhi) (2008) 5 SCC 230 infamously known as Jessica Lal murder case, the Apex Court had the occasion to consider and discuss earlier judicial pronouncements and held that observations on merit one way or the other are likely to prejudice the parties in appeal, hence, not to consider the correctness or otherwise of the evidence on record but at the same time, it cannot be overlooked that the accused having been found guilty and convicted by a competent criminal court, initial presumption of innocence in his favour is no more available.

13. In Bhagwan Rama Shinde Gosai & others Vrs. State of Gujarat ( 1999) 4 SCC 421, it is held by the Apex Court that suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances but if for any reason, the sentence of a limited duration cannot be suspended, every endeavour should be made to dispose of the appeal on merit, otherwise, the valuable right of appeal would be an exercise in futility by efflux of time and when the Appellate Court finds that due to practical reasons, the appeal cannot be disposed of expeditiously, it must bestow special concern in the matter of

suspending sentence so as to make such right of appeal meaningful and effective.

14. It is concluded in Ash Mohammad Vrs. Shiv Raj Singh @ Lalla Babu & another (2012) 9 SCC 446 that a question should be posed, whether, the accused deserves to be enlarged on bail or not and only thereafter, issue of imposing conditions would arise and the period of custody is a relevant factor, while considering the same but simultaneously, the totality of circumstances and the criminal antecedent are also to be weighed in the scale of collective cry and desire.

15. In Omprakash Sahni (supra), the Apex Court while considering the suspension of execution of sentence under Section 389 Cr.P.C., as it was allowed by the Patna High Court, concluded that the endeavour on the part of the Court should be to ensure as to whether the case presented by the prosecution and accepted by the Trial Court can be said to a case in which ultimately the convict stands for fair chance of acquittal and while undertaking the exercise to ascertain the same, what is to be looked into is something palpable and very apparent on the face of the record, on the basis of which, it can arrive at a prima facie satisfaction that the conviction may not be legally sustainable but with a word of caution that the Appellate Court should not re-appreciate the evidence at that stage and try to pick up few lacunas or loopholes randomly from the case of the prosecution as it is not a correct approach and ultimately held that the execution of sentence suspended was not justified.

16. Many other citations have been referred to at the Bar but the Court is not inclined to unnecessarily add them up and burden the judgment. Applying the standard set forth and discussed herein before, the Court has to examine the plea of the petitioner, whether, he is eligible and entitled to go on bail with the execution of the sentence being temporarily suspended. Turning to the facts of the case, it is made to reveal from the record that the prosecution examined the witnesses on recovery and seizure and the Trial Court proceeded to consider the evidence in its entirety including the one received from the official witnesses and referring to the forensic examination report marked as Ext.21reached at a definite conclusion that a case is made out against the petitioner for offences punishable under Sections 389-B and 389-C IPC. The scientific report i.e. Ext.21reveals that the suspected currency notes are either of low quality counterfeit or invalid and such report fit to be admitted as evidence under Section 292 Cr.P.C. Referring to the evidence of the prosecution and involvement of the petitioner as he was found at the spot intercepted along with a bag containing fake currency notes and such evidence of the I.O. with reference to the exhibits and material objects the learned Trial Court arrived at a decision that the charges are proved. The challenge to the impugned order i.e. Annexure-5 is based on the grounds pleaded and primarily on account of the procedural lapses and lack of independent corroboration. On a reading of the materials on record received as evidence during trial, it may not be correct to allege that there has been no corroboration. The nature of evidence is always

independently examined and combinedly assessed by a Court to reach at a certain conclusion. The evidence of the I.O. and informant besides others excluding the witnesses turned hostile has been referred by the learned Trial Court to reach at such a conclusion. The recovery and seizure of the fake currency notes is revealed by the IO, who proved the forensic examination report as Ext.21. The sufficiency or otherwise of the evidence produced before the learned Trial Court leading to the order of conviction is a matter to be examined by the learned court below while dealing with the appeal. In fact, lack of evidence independent of the official witnesses is to be duly examined in appeal but it is not that, the entire evidence on record regarding recovery and seizure of fake currency notes and a report as per Ext.21could have been entirely discarded. However, at this juncture, the Court is equally of the view that any observations or comment on the merits of the evidence received during trial must be avoided as it is certainly to prejudice either of the parties in appeal.

17. Mr. Sahu, learned counsel for the petitioner laid much emphasis on the endorsement of the laboratory after receiving the exhibits and dispatching it back on 23rd February, 2023 for the reason that the details of the notes mentioned in the exhibits were not matching on physical checking and hence, requested for its correction and to resend the same for examination. It is contended that there is no evidence on record regarding the resealing of the exhibits after it were received by the laboratory and thereafter, the manner in which, the compliance was made by the IO. It is

claimed that there is no evidence on record even to remotely suggest that the exhibits with proper sealing have been dispatched once again for forensic examination, as in that connection, it was for the IO to lead evidence in order to obviate any procedural lapses affecting the sanctity of the collection of the exhibits before resending the same.

18. On a cursory glance of the evidence of the IO examined as P.W.9, it is revealed that on 24th February, 2023, the exhibits have been received back with such a remark of the laboratory duly sealed and packed and on 2nd March, 2023, he placed the requisition before the learned SDJM, Titilagarh for resending the exhibits and it was after verification that all such exhibits were sealed and sent to the laboratory through a special messenger by a forwarding letter marked as an exhibit. On the request of the laboratory, necessary correction was carried out and as it appears, the exhibits were sealed and resent for forensic examination with the orders of the learned SDJM, Titilagarh and by a forwarding letter dated 2nd March, 2023. If it is claimed that in what manner, the exhibits were preserved before being sent to the laboratory and whether, it was duly sealed according to the procedure to prevent any such tampering, considering the evidence of P.W.9, the Court finds that it was not confronted to him. Rather, it is suggested that P.W. 9 resent the exhibits for forensic examination and admittedly, such an exercise was carried out in view of the request of the laboratory. Had any such lapses been brought to the notice of P.W.9, while under

examination with any such evidence retrieved or elicited from him, it would have been better appreciated.

19. The Court does not propose too much of discussion and elaboration on the point agitated since it would ultimately to prejudice the petitioner. The discussions herein above should not be treated as something to do with the merits of the case. The plea of procedural lapses, if any, with regard to resending of the exhibits with or without confrontation to the prosecution and its legal effect should be left open to be examined threadbare by the Court in appeal. Any such detailed examination of evidence at present is alien to the Court's jurisdiction, while considering the plea of suspension of sentence pending appeal, as that kind of an exercise would be like touching upon the merits of the case, when the appeal is awaiting disposal and it could well-nigh to influence the leaned court below considerably. In view of the above discussion, the Court finds that the argument of Mr. Sahu, learned counsel for the petitioner on procedural lapse in sealing the exhibits at any time during or after dispatch to the laboratory is a matter that lies within the realm of appeal Court's jurisdiction and concerning the merits of the case. In the humble view of the Court, it cannot usurp the jurisdiction of the Appellate Court discussing evidence dealing with all such aspects since such a course of action is forbidden as the exercise is to be confined to an overview examination of the materials primarily to disinter anything glaringly visible and apparent on the face of record making out an exception demanding suspension of sentence carrying an impression of

the convict having a very good chance of success in the appeal. Furthermore, any such exercise with a detailed analysis would lead to encroaching upon the territory of the Court in appeal.

20. Regarding the plea of the forensic examiner having not been cited as a witness to prove the report i.e. Ext.21, it is again a matter to be examined by the learned court below keeping in view the Section 291 Cr.P.C. But, by claiming that the forensic examiner is not examined though the report is marked as an exhibit from the side of the prosecution and hence, the charge is entirely misplaced is an argument not acceptable, while dealing with an application under Section 389(1) Cr.P.C. as the evidence in its entirety is to be thrashed out and not in isolation and the consequence and effect of such non-examination with reference to Section 291 Cr.P.C. All such procedural lapses alleged by Mr. Sahu, learned counsel should find a basis from the record. In absence of a case showing a fundamental flaw in the investigation and for having not received defence request for the report to be examined through the forensic examiner, it could still be claimed by the prosecution that the same would be admissible as evidence in terms of Section 291 Cr.P.C. apart from the responsibility of the Trial Court to summon him for clarification, if ever needed. The Court is of the further view that it cannot be a ground demanding release of the petitioner on bail pending decision in the appeal suspending sentence under Section 389 Cr.P.C.

21. Admittedly, a large number of fake currency notes found from the exclusive and conscious possession of the petitioner prima facie proved by the seizure carried out with no any explanation received back from him as revealed from his statement recorded under Section 313 Cr.P.C except a reply that a false case has been foisted and with such evidence on record and forensic report i.e. Ext.21, it may not be proper to allege that the order of conviction is indefensible and hence, in view of the above discussion, the irresistible conclusion of the Court is that the learned court below did not err in denying suspension of execution of sentence under Section 389(1) Cr.P.C. disallowing the petitioner to go on bail by the impugned order i.e. Annexure-5 despite his custody ever since 2023 especially when the conditions of release suspending sentence post-conviction are distinctly different with the plea of presumption of innocence is not available to a convict anymore.

22. At last, before winding up, it is made clear that the Court has not discussed the evidence on merit, rather, made an endeavour to assess the materials on record objectively to examine whether a case is made out for suspension of sentence and hence, the learned court below shall have to consider disposal of appeal on merit and according to law without being influenced by any of its observations made and discussed herein above but within a stipulated period since in the words of the Apex Court in Bhagwan Rama Shinde Gosai (supra), the invaluable right of appeal becomes a futile exercise by passage of time.

23. Hence, it is ordered.

24. In the result, the revision petition stands dismissed. As a necessary corollary, the impugned order dated 2nd September, 2024 in Criminal Appeal No. 06 of 2024 as at Annexure-5 is hereby affirmed followed by a direction to the learned Additional Sessions Judge, Titilagarh to ensure disposal of the appeal at the earliest preferably within a month from the date of receipt of a copy of this judgment after providing reasonable opportunity of hearing to the parties involved.

25. Intimation to the Court concerned forthwith.

(R.K. Pattanaik) Judge kabita