Biswajit Pattanaik v. State of Odisha & Anr.

Mr. S. Mohanty, Advocate for O.P. No.2 Mr. S.S. Mohapatra, ASC CORAM: MR. JUSTICE R.K. PATTANAIK ORDER

18.01.2023

Heard learned counsel for the petitioner, learned counsel for the State opposite party No.1 and learned counsel for opposite party No.2.

Instant petition under Section 482 Cr.P.C. is filed by the petitioner assailing the impugned order dated 21st November, 2022 passed in C.T. No.156 of 2019 corresponding to Khandagiri P.S. Case No.372 of 2018 (C.T. Case No.3812 of 2018) by the learned 4th Additional Sessions Judge, Bhubaneswar whereby an application to call for the CDS and other records beside PAN Card, documents in relation to the transaction between the parties was rejected.

It is informed to the Court that the investigation is over with a final chargesheet submitted in the meantime.

A copy of the FIR is at Annexure-1 which shows that Khandagiri P.S. Case No.372 of 2018 was registered under Sections 376 IPC and other allied offences. Mr. Rayaguru, learned counsel for the petitioner refers to Annexure-7 series and submits that applications dated 29th November, 2021 and 27th December, 2021 were filed before the learned court below for a direction to the IIC, Khandagiri to collect the CDR record and other items which was objected to by prosecution. It is further submitted that considering the nature of allegation leveled against the petitioner, the learned court below notwithstanding a supervision note to call for the CDR record during investigation ought not to have rejected the application as it would substantially prejudice the petitioner while facing trial. It is further submitted that even the application for discharge filed by the petitioner was rejected in the meantime. With the above submission, Mr. Rayaguru, learned counsel for the petitioner submits that the impugned order dated 21st November, 2022 passed by the learned court below is not tenable in law and hence, liable to be quashed in the interest of justice with a direction to the IIC of the concerned PS to collect the CDR and other records and place it at the disposal of the court before the trial is commenced.

Mr. Mohapatra, learned counsel for the State on the other hand justifies the impugned order dated 21st November, 2022 on the ground that there was no need for calling of the CDR and other records at the instance of the petitioner. Mr. Mohanty, learned counsel for opposite party No.2 supports the contention of the State and submits that the learned court below did not err or commit any wrong or illegality while passing the impugned order under Annexure-8.

The plea for discharge vis-à-vis the petitioner has been rejected as informed by Mr. Rayaguru, learned counsel appearing for him. The application so filed by the petitioner has been disposed of with the conclusion that the prayer for the records to be called for at that stage is premature. It is submitted by Mr. Rayaguru, learned counsel for the petitioner that during and in course of investigation, there was a direction and need felt through supervision note for collection of such records but without it, the chargesheet was filed and hence, considering the allegations against the petitioner, the learned court below was moved, however, it was declined vide Annexure-8. The Court is of the view that as the stage of framing of charge such collection of evidence is unnecessary. In the meantime, the discharge of the petitioner has been rejected but whatever evidence to be available on record, considering the same, the learned court below reached at a conclusion that no case is made out for discharge. This Court is in agreement with the learned court below that the stage is not ripe for consideration of such a prayer of the petitioner, nevertheless in course of investigation, it was considered necessary as pointed out by Mr. Rayaguru, learned counsel for the petitioner that it was on record through a supervision note. However, at present, since other materials have been taken cognizance by the learned court below and discharge has been rejected, the Court is of the humble opinion that the petitioner should be granted liberty to apply for such records at any time during trial. In other words, with such liberty granted to the petitioner, the Court is of the view that CRLMC should be disposed of and accordingly it is ordered.

In the result, CRLMC stands disposed of with liberty to the petitioner to apply for CDR records and other papers and to be called for as proposed during and in course of trial unless he is discharged in connection with C.T. Case No.3812 of 2018.

A certified copy of this order be granted as per rules. (R.K. Pattanaik) Judge Tudu