[Cites 9, Cited by 0]
Orissa High Court
Susanta Kumar Patra & vs State Of Odisha& Others ..... Opposite ... on 6 April, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.433 of 2026
Susanta Kumar Patra & ..... Petitioners
another
Represented by Adv. - Mr.
Milan Kanungo, Senior
Advocate along with Mr.
Ananta Narayan Pattanayak
-versus-
State of Odisha& others ..... Opposite Parties
Represented by Adv. - Ms.
Sasmita Nayak, ASC
M/s Sri Bishnu Prasad
Pradhan, Advocate for O.P.
No.3
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
06.04.2026
Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Sri Milan Kanungo, learned Senior counsel along with
Mr. A. N. Pattanayak, learned counsel for the Petitioners and Mr.
B. P. Pradhan, learned counsel for the Opposite Party No.3 and
learned counsel for the State. Peruse the CMP application as well
as the prayer made therein.
3. The Petitioners, who happen to be the Defendant No.1 and 2
in C.S. No.482 of 2024 now pending before the learned 2nd
Additional, Civil Judge (Senior Division), Bhubaneswar, have
approached this Court by invoking the jurisdiction of this Court
under Article 227 of the Constitution of India and challenging the
order dated 28.02.2026 passed by the learned trial court in the
above noted suit.
4. Mr. Kanungo, learned Senior counsel appearing for the
Petitioner at the outset contended that the Opposite Party No.3 as
plaintiff filed a suit for declaration and confirmation of their
possession and permanent injunction. During the pendency of the
suit a criminal case was also registered, wherein the investigation
is being carried out by the Investigating Officer of the Special
Crime Unit in P.S. Case No.11 of 2024 dated 10.09.2024. An
application was moved before the learned trial court with a prayer
to release certain original documents, indicated in the application,
since such documents are relevant for the purpose of investigation
in P.S. Case No. 11 of 2024. It is not disputed that such original
documents were filed by the Defendant along with the written
statement in C.S. Case No.482 of 2024 and now such original
documents are in the custody of the learned 2nd Additional Civil
Judge (Senior Division), Bhubaneswar.
5. The learned trial court after considering the application filed
by the Investigating Officer of the Special Crime Unit, vide order
dated 28.02.2026, permitted the investigating agency to take
possession of the original documents filed along by the defendant
along with the written statement of the suit subject to certain terms
and conditions mentioned in the impugned order. Being aggrieved
by such order of the learned trial court dated 28.02.2026, the
petitioner has approach this Court by filing the present CMP
application.
6. Mr. Kanungo, learned Senior Counsel appearing for the
Defendant-Petitioners at the outset contended that they are
concerned about the safety and security of the original documents.
He further contended that the entire claim of the Defendant is
based on those original documents which are vital and relevant for
the Defendants to establish their case and to counter the allegations
made by the Plaintiff in his plaint. He further contended that once
such documents are handed over to the Investigating Agency there
is every likelihood of such documents being tampered or destroyed
by the agency. He further submitted that since the Investigating
Officers are changed from time to time depending on their posting
at a particular place, there is every likelihood that the documents
might be lost or displaced in the process. In such view of the
matter, learned Senior counsel for the Defendant-Petitioners
contended that order dated 28.02.2026 permitting the Investigating
Agency to take away the original documents is unsustainable in
law.
7. Learned counsel for the State on the other hand contended
that the allegations made by the Defendants-Petitioners are
absolutely baseless and vague. He further contended that an
Additional Commissioner of Police is carrying out the
investigation in the present case. Therefore, there is no chance of
document being misused, tampered, destroyed or misplaced in any
manner. He further, submitted that the original documents are
required to be sent to the handwriting expert for verification of the
signature therein since such verification by the expert is an
essential requirement in the investigation of the criminal case
which has been initiated on the self-same documents. Further,
referring to the impugned order, learned counsel for the State
contended that the learned trial court, while permitting the
Investigating Agency to take away the document, has imposed
certain reasonable conditions to ensure the safety and security of
the documents. On such grounds learned counsel for the State
contended that the apprehension of the Defendant-Petitioners is
absolutely baseless and, accordingly, it was prayed that the present
CMP application, being devoid of merit, is liable to be dismissed.
8. Mr. Pradhan, learned counsel appearing for the Plaintiffs-
Opposite Party Nos.1 and 2 on the other hand contended that the
Defendants are trying to avoid the criminal investigations. Further,
it was submitted that the learned trial court has not committed any
illegality by permitting the Investigating Agency to take away the
original documents for the purpose of investigation and verification
by the experts. He further submitted that the application filed
before the learned trial court is in essence an application under
Section 151 of the CPC. He also contended that mere non-
mentioning of the section in the application does not take away the
power of the learned trial court to exercise of its inherent powers as
saved under Section 151 of CPC.
9. While supporting the impugned order dated 28.02.2026 at
Annexure-7 to the CMP application learned counsel for the
Plaintiff-Opposite Party contended that the investigating agency in
the criminal case be given a free hand to investigate the case in a
free and fair manner. He also contended that by filing the present
CMP application the Defendant-Petitioners are trying to stall the
investigation which is carried out by the Additional Commissioner
of Police. In such view of the matter the learned counsel for the
Plaintiff-Opposite Party contended before this Court that the
present CMP application is absolutely misconceived, devoid of
merit and has been made as an attempt to stall the investigation. As
such, the same should be dismissed at the threshold.
10. Having regard to the submissions made by the learned
counsel appearing for the respective parties, on a careful
examination of the background facts, further, on a scrutiny of the
impugned order dated 28.02.2026 at Annexure-7 to the CMP
application, this Court observes that the Investigation Officer (ACP
crime) moved an application before the learned trial court with a
prayer for release of certain original documents which are required
for the investigation in the criminal case. The legal position on the
issue as to whether a document filed in a civil court and in the
custody of the court can be handed over to the investigating agency
for the purpose investigation is no longer res integra. Law is fairly
well settled that in a criminal case the investigating agency is to be
given a free hand to carry out a free and fair investigation without
any hindrance. Also, It is also the settled possession of law that the
Court will not interfere with the affairs of the Investigating Agency
while investigating into the Criminal case.
11. The aforesaid position of law has been consistently affirmed
by several High Courts of this country. The Rajasthan High Court
in Bhagwan Sahai and Another v. Manoj Kumar and Others,
reported in 2016 CLJ 4714, the Gujarat High Court in Sama
Piyushbhai Shah v. Madanlal Hastimal Rathi, reported in 2019
SCC OnLine Guj 5842 (confirmed by the Supreme Court by
dismissal of SLP (Civil) Diary No. 7495/2020 on 04.05.2020), and
the Delhi High Court in Pradeep Gupta v. The State and Others,
bearing TEST.CAS. 59/2025, decided on 10.02.2026, have all
consistently held that when a document alleged to be forged and
fabricated has been filed before a civil or criminal court and is in
the custody of such court, the IO in exercise of the wide powers of
investigation under Chapter XII of the Code of Criminal
Procedure, can request the court to hand over the said document for
the purpose of its examination.
12. It has been consistently held that the process of criminal law
cannot be scuttled, that a person under investigation cannot be
permitted to obstruct or dictate the course of investigation. The
Hon'ble Supreme Court in Narender G. Goyal v. State of
Maharashtra and Another, reported in (2009) 6 SCC 65, wherein,
specifically paragraphs 11, 12 and 13 thereof, it was held that the
accused has no right to be heard at the stage of investigation; the
prosecution has to prove its case at trial when the accused will have
a full opportunity to rebut or question the validity and authenticity
of the prosecution case. The accused can certainly avail of an
opportunity to cross-examine and/or controvert the authenticity,
admissibility or legal significance of material evidence gathered in
the course of investigation, but cannot plead or direct the manner in
which the investigation would be carried out.
13. Likewise in Syed Askari Hadi Ali Augustine Imam and
Another v. State (Delhi Administration) and Another, reported in
(2009) 5 SCC 528, the Supreme Court reiterated in paragraphs 22
and 24 that it is well settled that ordinarily a criminal proceeding
will have primacy over the civil proceeding and that if primacy is
to be given to a criminal proceeding, the civil suit must be
determined on its own merits, keeping in view the evidence
brought before it and not in terms of the evidence brought in the
criminal proceeding. This principle was echoed in Lakshmi and
Another v. Chinnamal alias Rayyammal and Others, reported in
(2009) 13 SCC 25, where the Supreme Court observed that the
court shall not bring about a situation whereby a criminal
proceeding would remain stayed, as it is a well-settled principle of
law that where a civil proceeding and a criminal proceeding are
both pending, the latter shall get primacy. Furthermore, recently in
C.S. Prasad v. C. Satyakumar and Others, reported in 2026 SCC
OnLine SC 50, the Supreme Court has affirmed that adjudication
in civil matters and criminal prosecution proceed on different
principles; that civil adjudication cannot always be treated as
determinative of criminal culpability and that criminal liability
must be examined independently (see paragraphs 27 and 28). The
Court further observed that to permit quashing on the sole ground
of a civil suit would encourage unscrupulous litigants to defeat
criminal prosecution by instituting civil proceedings.
14. Furthermore, although, it appears that the application which
was filed before the learned trial court has not been nomenclatured
as an application under Section 151 of the CPC, however, the
learned trial court is not devoid of power to exercise of its inherent
powers under Section 151 of the CPC. On a careful scrutiny of the
order dated 28.02.2026, this Court is of the view that the learned
trial court in the larger interest of justice has exercised of its
inherent powers on an application filed by the Investigating Officer
and accordingly, he has granted permission to take away the
relevant original documents subject to certain conditions
mentioned in the concluding paragraphs of the order. On a careful
analysis of the impugned order this court finds no illegality in the
order passed by the learned trial court.
15. However, taking into consideration the apprehension of the
learned senior counsel appearing for the petitioner, this Court
would like to impose an additional condition. Accordingly, the
present CMP application is disposed of by upholding the order
dated 28.02.2026 with an additional condition that the
Investigating Officer (ACP, SCU P.S., BBSR-CTC) shall furnish
an affidavit before the learned trial court with regard to the safety
and security of the documents, mention therein that he shall take all
the reasonable precautions for the safety and security of the
documents, which have been taken for the purpose of investigation
in the criminal case.
16. Further, a specific undertaking shall be given to the learned
trial court in the shape of an affidavit by the concerned IO (ACP,
SCU P.S., BBSR-CTC) to the effect that the original documents,
which are to be released in favour of the investigating Officer, shall
be kept in the safe custody of the Investigating Officer and that the
same shall be returned to the learned trial court after conclusion of
the investigation or within a period of two months from the date of
release all such documents. Original relevant documents which are
absolutely necessary for the purpose of investigation shall be
released in favour of the Investigating Officer. Liberty is granted to
the Petitioner to move this Court in the event any of the parties
deviate from the aforesaid direction.
17. With the aforesaid observation and direction the CMP
application stands disposed of.
( A.K. Mohapatra)
Judge
Suchitra
Digitally Signed Page 9 of 9.
Location: HIGH COURT OF ORISSA
Date: 09-Apr-2026 15:15:19
