Hig High Court
Case Details
IN THE HIG HIGH COURT OF ORISSA AT CUTTA UTTACK CRLREV No. 546 of 2024 D. Rajesh Kuma Rajesh Kumar. umar @ Darapu …. Petitioner Mr. P.V. Balakrishna rishna, Advocate -versus- State of Odisha (V ha (Vig) …. Oppo Opposite Party Mr. San Standing Counsel for angram Das, sel for Vigilance CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN D JAN DASH Date of Judgment: 09.07.2025 Chittaranjan Dash, ash, J. 1. 2. Heard learn rd learned counsel for the Parties. The legali legality, propriety and correctness of the o f the order dated 06.07.2024 passe passed by the learned Special Judge, udge, Vigilance, Berhampur in G.R in G.R. Case No.9 of 2018 (v) has been s been called in question in this rev his revision. 3. The backg
Facts
background facts of the case are that the at the Petitioner, while serving as th g as the Sarpanch of K. Sitapur Grama Panch Panchayat under Kashinagar Block Block, District Gajapati, allegedly misa misappropriated government funds funds. It is alleged that he caused loss to oss to the public exchequer by wit y withdrawing money from the PDS Sav S Savings Bank CRLREV No. 546 of 202 f 2024 Page age 1 of 10 account maintaine ntained jointly with the Panchayat Executive ecutive Officer at Axis Bank, Kashin Kashinagar Branch. 4. It emerges merges that on 17.03.2018, the Inspector pector of Police, Vigilance, Parala Paralakhemundi Unit, submitted a writ written report addressing to the o the Superintendent of Police, Vigilance a ance alleging that the Petitioner alon r along with the P.E.O. of K. Sitapur Gram Gram Panchayat jointly withdrew a drew an amount of Rs. 1,50,000/- (Rupees upees One Lakh Fifty Thousand on and only) which was not entered in the ca cash register. Additionally, a sum , a sum of ₹2,53,397/- (Rupees Two Lakhs akhs Fifty-Three Thousand Three H hree Hundred Ninety-Seven only), though r ough recorded in the cash book, ook, was not found during physical v ical verification. Consequently, the ly, the Petitioner and the P.E.O. were prima prima facie held responsible for th for the misappropriation of the said fu aid funds. Upon completion of in of investigation, they were charge-shee sheeted under Sections 13(2) re (2) read with Sections 13(1)(c) and 13(1 13(1)(d) of the Prevention of Cor f Corruption Act, 1988, read with Sections ctions 409/120-B of the IPC. The Pe The Petitioner being aggrieved by the submis submission of the said charge-sheet sheet prayed the learned trial court to disc to discharge him from the aforesaid resaid charges proceeding under Section 239 on 239 of Cr.P.C. The learned Trial Trial Court, vide the impugned order, was as pleased to reject the prayer o ayer of the Petitioner for discharge, thereby ereby giving rise to the present Revi t Revision Petition. 5. The learne
Legal Reasoning
The nature of evaluation to be made by the co stage of framing of charge came up ideration of this Court in Onkar Nath Mishra v. State (NCT of Delhi) and another, (20 the court at e up for ishra and , (2008) 2 CRLREV No. 546 of 202 f 2024 Page age 5 of 10 SCC 561, the State of SCC 659, (2000) 6 S Court has existence o offence alle the probati relevant ob follows:- “11. It is tr court is req on record emerging th the existen alleged offe to go deep record. Wh a ground committed has been m founded on presumptiv ingredients justify the respect of t 56. Then ag a three- Ju three pairs resply in s Sections 23 warrant cas trial of sum framing of 671, para 3 “32...if o could co offence i of charg were to t the offe 561, and referring to its earlier decision te of Maharashtra v. Som Nath Thapa, (19 659, and the State of M.P. v. Mohanlal 0) 6 SCC 338, it was held that at that stage t has to form a presumptive opinion as to ence of the factual ingredients constituting ce alleged and it is not expected to go deep robative value of the materials on record. ant observations made in the judgment ar ecisions in , (1996) 4 lal Soni, t stage, the as to the tituting the o deep into ecord. The ent are as charge the documents f the facts e, disclosed tituting the ot expected material on ther there is has been the accused g suspicion t to form a the factual ged would accused in It is trite that at the stage of framing of charg is required to evaluate the material and docum ecord with a view to finding out if the ging therefrom, taken at their face value, disc existence of all the ingredients constituting ed offence. At that stage, the court is not exp deep into the probative value of the materi d. What needs to be considered is whether th ound for presuming that the offence has itted and not a ground for convicting the acc een made out. At that stage, even strong susp ded on material which leads the court to fo mptive opinion as to the existence of the fa dients constituting the offence alleged w y the framing of charge against the accuse ct of the commission of that offence.” hen again in the case of Som Nath Thapa (su Judge Bench of this Court, after noting pairs of Sections i.e. (i) Sections 227 and y in so far as the sessions trial is concerned ons 239 and 240 resply relatable to the tri ant cases; and (iii) Sections 245(1) and (2) qu of summons cases, which dealt with the questi ing of charge or discharge, stated thus: (SC para 32). 2...if on the basis of materials on record, a uld come to the conclusion that commission o fence is a probable consequence, a case for fra charge exists. To put it differently, if the re to think that the accused might have comm e offence it can frame the charge, though (supra), noting the 7 and 228 cerned; (ii) the trial of (2) qua the question of s: (SCC p. rd, a court ssion of the for framing if the court committed though for CRLREV No. 546 of 202 f 2024 Page age 6 of 10 be that the pparent that ive value of e into; the ution has to supra), this isions, held sed judicial e court has s sufficient The court is de whether r not for nviction the conclusion is required to be tha cused has committed the offence. It is apparen the stage of framing of a charge, probative val e materials on record cannot be gone into aterials brought on record by the prosecution h accepted as true at that stage.” n a later decision in Mohanlal Soni (supra) t, referring to several of its previous decisions, (SCC p. 342, para 7) “7. The crystallised jud is that at the stage of framing charge, the cour rima facie consider whether there is suffi nd for proceeding against the accused. The co equired to appreciate evidence to conclude wh materials produced are sufficient or not icting the accused.” Reiterating a similar view convictio accused at the sta the mate materials be accep 57. In a la Court, refer that: (SCC view is that to prima f ground for not required the materi convicting in Sheoraj S 58. Reiter at and others v. State of Uttar Pradesh Ahlawat a r, (2013) 11 SCC 476, it was observed by another, t that while framing charges the court is requir Court that w ate the materials and documents on recor evaluate th e whether the facts emerging therefrom tak decide whe face value would disclose existence of ingred their face v tituting the alleged offence. At this stage, the constituting t required to go deep into the probative value o is not requi rials on record. It needs to evaluate whether materials o ground for presuming that the accused is a groun itted the offence and it is not required to eva committed ciency of evidence to convict the accused. It sufficiency that the Court at this stage cannot speculate held that th truthfulness or falsity of the allegations the truthfu adictions & inconsistencies in the stateme contradictio witnesses sses cannot be looked into at the stag arge. discharge. Munna Devi v. State of Rajasthan & 75. In Mun (2001) 9 SC “3.....The Procedur manner. Court ha the mann required 1) 9 SCC 631, this Court held as under:- .....The revision power under the Code of Crim ocedure cannot be exercised in a routine and c anner. While exercising such powers the urt has no authority to appreciate the eviden e manner as the trial and the appellate court quired to do. Revisional powers could be exer aj Singh desh and ved by this required to record to m taken at ingredients e, the court value of the ether there cused had to evaluate sed. It was eculate into ations and atement of e stage of of Criminal and casual the High evidence in courts are e exercised & Anr., CRLREV No. 546 of 202 f 2024 Page age 7 of 10 bar against ings or the in the first n at the ety do not ed has been only whe ly when it is shown that there is a legal bar ag the cont e continuance of the criminal proceedings o framing ming of charge or the facts as stated in the informat formation report even if they are taken a face valu value and accepted in their entirety do nstitute the offence for which the accused has constitut arged.” charged. ercised in a Thus, the revisional power cannot be exercised 76. Thus, th e exercised l or mechanical manner. It can only be exer casual or m dure which rrect manifest error of law or procedure w to correct rected. The d occasion injustice, if it is not corrected. would occ h appellate ional power cannot be equated with app revisional meticulous r. A revisional court cannot undertake metic power. A r as is ination of the material on record as examinatio court. This rtaken by the trial court or the appellate court. undertaken legal bar to r can only be exercised if there is any legal b power can he facts as ontinuance of the proceedings or if the fac the continu ue on their d in the charge-sheet are taken to be true on stated in th ty do not value and accepted in their entirety do face value d has been titute the offence for which the accused has constitute t r of law or charged. It ed. It is conferred to check grave error of la dure. procedure. it 9. Having hea ing heard the learned counsel for the parties a arties and in view of the principle en iple enunciated by the Hon’ble Supreme Cou e Court as noted above, this Court Court is of the considered view that the fact he facts requiring adjudication cann cannot be conclusively determined at the at the threshold stage of the proce proceeding. An inference that the amount mount withdrawn under the joint s oint signatures of the Sarpanch and the d the Panchayat Executive Officer fficer (P.E.O.) is solely the responsibility of lity of the P.E.O., as its custodian, a ian, and that the Sarpanch has no axe to g e to grind in the money withdrawn drawn for the purpose of the expenses to b s to be borne by the Panchayat, can , cannot be drawn without proper trial. Th rial. The question as to whether the er the Sarpanch had any involvement in nt in the alleged misappropriation o ation of funds intended for Panchayat expen t expenditure is a CRLREV No. 546 of 202 f 2024 Page age 8 of 10 matter that must b must be resolved through due adjudication cation during the course of trial. 10. This Court ourt is well persuaded by the submission m on made by the learned counsel f nsel for the State (Vigilance) that the the amount of misappropriation a ation alleged, as reflected in the charge- -sheet, is not only the extent of ent of amount sought to have been withdraw hdrawn under the joint signature of re of the Petitioner and the P.E.O. amoun amounting to Rs. 1,50,000/- but al but also the balance amount required to red to be found physically as enter llied. s entered in the cash book found not tallied. 11. In any case y case, the submission made by the learned arned counsel for the Petitioner with er with regard to the report of the auditor e ditor exonerating the Sarapanch fro ch from his responsibility as to the custo e custody of the withdrawn amoun amount from the Bank is a matter of appr f appreciation of evidence. 12. Consequen sequently, the grounds propounded by the by the Petitioner could be one for h e for his defence, the benefit whereof can be be taken only upon a proper adj er adjudication after the matter being led i g led in evidence during trial but c but cannot ipso facto be inferred as as sufficient to exonerate the Petit e Petitioner from the charges in as much as ch as the offence allegedly charge a arge against the Petitioner need not be a ful e a full proof one at the stage of fra of framing of charge but a strong presump esumption of the allegations would ould be suffice to implicate him to proceed oceed in the trial. 13. Having reg ing regard to the principles enunciated as ab as above by the Hon’ble Supreme reme Court and the discussion as above, the ve, the Petitioner cannot be said to aid to have substantiated the ground whe d whereupon an CRLREV No. 546 of 202 f 2024 Page age 9 of 10 instant opinion ca ion can be formed as to his innocence to a e to absolve him from the charge at rge at the very threshold. 14. As a result result, this Court finds no merit in the prese e present revision and the same, bein sed. being devoid of merit, stands dismissed. (Chittaranjan Da n Dash) Judge Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Jul-2025 17:31:33 CRLREV No. 546 of 202 f 2024 Page age 10 of 10
Arguments
learned counsel for the Petitioner, during th ring the course of hearing in the pre he present revision, vehemently argued by r d by referring to the audit report s port submitted by the prosecution in suppo support of their allegations against gainst the Petitioner. It was pointed out that t that the District Audit Officer h cer had categorically stated that the amount of the a CRLREV No. 546 of 202 f 2024 Page age 2 of 10 ₹1,50,000/, withdr withdrawn under the joint signatures of the of the Petitioner and the P.E.O., w .O., was retained in the custody of the P the P.E.O. after encashment of the of the cheque, and that the Petitioner, in his in his capacity as Sarpanch, canno cannot be held responsible for an r any alleged misappropriation. ation. Attention of this Court was also also drawn to documents indicating indica that the said amount of of ₹1,50,000/-, withdrawn throug through self-Cheque No. 59464 from Sav m Savings Bank Account No. 9140 . 914010002713426, was misappropriated b iated by the then P.E.O. Furthermor ermore, it was also pointed out that an add n additional sum of ₹14,04,870/- had been misappropriated by the form e former P.E.O., who, being the the custodian of the withdrawn funds, funds, was held responsible for the for the same. 6. Das, Mr. Das, learned Standing Counsel for for the State (Vigilance), on the on the contrary, submitted that the grounds s propounded by the Petitioner er to exonerate him from the charges a arges at the very threshold cannot b nnot be allowed at this stage. The simple re ple reason being the documents b ents basing on which the Petitioner ner claims his exoneration are th are the audit reports concerning a part o part of the total amount allegedly gedly to have been misappropriated and th and this could be one of the ground rounds for defence which need to be proved proved before the trial court during a uring adjudication of the matter in dispute an pute and does not ipso facto absolve bsolve the Petitioner from the charges. M Mr. Das also relied upon the d the decision in the matter of State throu hrough Deputy Superintendent of nt of Police Vs. R.Soundirarasu Etc., whe wherein it was held that even a s en a strong suspicion, founded on material terial leading the court to form a p m a presumptive opinion as to the existe existence of the CRLREV No. 546 of 202 f 2024 Page age 3 of 10 factual ingredients edients constituting the offence alleged, wo ed, would justify the framing of cha of charge against the accused. 7. In the cont e context of the challenge to the framing of c ng of charge, it is useful to recall the all the settled legal position laid down by t n by the Hon’ble Supreme Court ourt in the matter of State of Rajasthan han Vs. Ashok Kumar Kashyap reported in AIROnline 2021 SC 210, , wherein it is reiterated – In the case of P.Vijayan (supra), this Court h sion to consider Section 227 of the Cr.P.C. W red to be considered at the time of framing o e and/or considering the discharge applicatio considered elaborately in the said decision. rved and held that at the stage of Section 227 e has merely to sift the evidence in order to whether or not there is sufficient ground eding against the accused. It is observed th words, the sufficiency of grounds would n its fold the nature of the evidence recorde olice or the documents produced before the h ex facie disclose that there are suspi mstances against the accused so as to fram e against him. It is further observed that i e comes to a conclusion that there is suffi nd to proceed, he will frame a charge under Se Cr.P.C., if not, he will discharge the accused. er observed that while exercising its judicial e facts of the case in order to determine whet for trial has been made out by the prosecution ecessary for the Court to enter into the pros of the matter or into a weighing and balanci nce and probabilities which is really the fun Court, after the trial starts. ourt had an .C. What is ming of the lication has cision. It is on 227, the rder to find ground for ved that in would take ecorded by e the Court suspicious to frame a that if the s sufficient der Section cused. It is dicial mind e whether a cution, it is e pros and alancing of he function “9.1 In the occasion to required to charge and/ been consi observed an Judge has out whethe proceeding other word within its f the police o which ex circumstanc charge aga Judge com ground to p 228 Cr.P.C further obs to the facts case for tria not neces cons of the evidence an of the Cour 9.2 In the M.R. Hire Chandrachu held in para n the recent decision of this Court in the ca Hiremath (supra), one of us (Justice drachud) speaking for the Bench has observed in paragraph 25 as under: the case of stice D.Y. served and CRLREV No. 546 of 202 f 2024 Page age 4 of 10 ognizant of . The High Court ought to have been cogniza 25. The ng with an e fact that the trial Court was dealing wit the fact ovisions of plication for discharge under the provision applicati govern the ction 239 CrPC. The parameters which gover Section 2 pression in ercise of this jurisdiction have found expressi exercise ed principle veral decisions of this Court. It is a settled prin several d application law that at the stage of considering an applic of law th ed on the r discharge the Court must proceed on for disc een brought sumption that the material which has been bro assumpti nd evaluate the record by the prosecution is true and eva on the re er the facts e material in order to determine whether the the mate face value, erging from the material, taken on its face v emerging ecessary to sclose the existence of the ingredients necessa disclose . N. Suresh nstitute the offence. In State of T.N. v. N. S constitut , (2014) 11 jan [State of T.N. v. N. Suresh Rajan, (2014 Rajan [S ions on the C 709, adverting to the earlier decisions o SCC 709 para 29) bject, this Court held: (SCC pp. 721-22, para 2 subject, t lue of the 29. ... At this stage, probative value of “29. ourt is not materi materials has to be gone into and the Court d hold that expec expected to go deep into the matter and hold nviction. In the materials would not warrant a convictio the m nsidered is our opinion, what needs to be considere our o ing that the wheth whether there is a ground for presuming tha whether a offence has been committed and not wheth offenc been made ground for convicting the accused has been groun thinks that out. T out. To put it differently, if the Court thinks offence on the ac the accused might have committed the offenc ts probative the basis of the materials on record on its prob the ba though for value, it can frame the charge; though value, to the to e to come convic the Court has conviction, mitted the conclusion that the accused has committed conclu ini trial at offenc offence. The law does not permit a mini tr this stage.” this st 8. It was furthe further held in State by Deputy Superin perintendent of Police Vs. R. s. R. Soundirarasu Etc. reported in (202 (2023) 6 SCC 768, as follow follows – “55. The na the stage consideratio others v. S