Shibaram Sahu vs State Of Odisha (Vigilance) Department

Sashikanta Mishra, J

The petitioner has approached this Court in the present Criminal Revision with the following prayer:

"The petitioner above named therefore prays that in the facts and circumstances of the case, this Hon'ble Court maybe pleased to admit the revision petition, call for the Lower Court Record and after hearing the parties the impugned order dated 16.07.2014, passed in C.T.R. No.3 of 2012 of the Court of Special Judge, Vigilance, Bolangir be set aside and the petitioner may be discharged from the offence in question; and any other order or direction considered fit and proper be passed in favour of the petitioner;

And for which act of kindness, the petitioner as in duty bound shall ever pray."

The brief facts of the case are that the petitioner is the accused in CTR No.3 of 2012 pending in the court of learned Special Judge, Vigilance, Bolangir for the alleged commission of offence under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 read with Section 409 of IPC.

2.1. The accused petitioner filed an application under Section 239 of Cr.P.C. in the court below with prayer to discharge him from the case. The application was heard and disposed of by learned court below vide order dated 26.02.2013, which is enclosed to the present revision petition.

2.2. After rejection of such petition, the accused- petitioner filed another petition on 14.08.2013 purportedly under Section 227 of Cr.P.C. with the self-same prayer. The said petition was heard and rejected by the learned Court below vide order dated 16.07.2014, which is impugned in the present revision.

Heard Mr. H.S. Mishra, learned counsel for the petitioner and Mr. S. Das, learned Addl. Standing Counsel for vigilance.

It is argued by Mr. Mishra that the learned court below committed an illegality in rejecting the petition for discharge without citing reasons. In this context, it is contended that the petitioner sought an order of discharge mainly on two grounds, namely, (i) there was absence of valid sanction to prosecute him, and (ii) the basic ingredients of the offence under Section 409 IPC, i.e., entrustment of the amount in question, is not prima facie made out from the materials put forth by the prosecution. It is further submitted that when the second petition was filed, learned court below held the same to be not maintainable and yet, went on to reject the same on merits.

Mr. Mishra has referred to several decisions in support of his contention and in particular has relied upon the decisions of the Apex Court in the case State of Karnataka vs. L. Muniswamy and others reported in AIR 1977 SC 1489 and Union of India vs. Prfaulla Kumar Samal reported in AIR 1979 SC 366. On such basis, it is submitted by Mr. Mishra that since learned court below has not yet framed charge, it was not proper on its part to reject the petition on the ground that sufficient grounds for framing of charge are made out.

Per contra, Mr. S. Das, learned Addl. Standing Counsel for Vigilance has contended that the second application filed for discharge after the order passed in the first application had attained finality, is not maintainable in law. Further, law is well settled that the court is not bound to record reasons if it decides to frame charge against the accused. Since the documents produced by the prosecution before the Court below, prima facie, disclose great suspicion regarding commission of the alleged offences by the accused petitioner, the trial court was justified in rejecting the petition for discharge.

In support of his contention Mr. Das has referred to the decisions of the Apex Court in the case of Kanti Bhadra Shah & another vs. State of West Bengal, reported in AIR 2002 SC 522; Bhawana Bai vs. Ghanshyam & others, reported in (2020) 2 SCC 217; and Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation, reported in (2018) 16 SCC 299.

From the rival contentions noted above, it is evident that this Court is required to determine the following two issues.

(i) Whether In The Facts And Circumstances Of The Case, The Second Application For Discharge After Rejection Of The First Application Is Maintainable.

(ii) Whether The Court Below Was Obliged To Record Specific Reasons For Rejecting The Petition For Discharge.

On the first issue, as has already been noted hereinbefore, the accused -petitioner having filed an application for discharge, the same was heard and rejected vide order dated 26.02.2013. There is no dispute that the said order was not challenged before the higher forum and must therefore, be held to have attained finality. However, the accused-petitioner filed another petition on 14.08.2013 and by order dated 16.07.2014, the same was rejected. While rejecting such petition, learned court below referred to its earlier order, i.e., order dated 26.02.2013 and held that the subsequent petition for the same relief is not maintainable. Surprisingly however, after having held so, learned court below went on to consider the petition on merits and rejected the same. Once a petition is held to be not maintainable in the eye of law, it must be rejected at the threshold without proceeding further. But learned court below, for reasons not known, decided to hear the petition again on merits. Such a course of action cannot be countenanced in law.

Be that as it may, the second petition having being rejected on merits as also by citing the earlier order dated 26.02.2013, this Court is of the considered view that the correctness of not only the order impugned but also the said order dated 26.02.2013 can be examined in the present revision. The submission made by learned counsel for the Vigilance is, therefore, not tenable. Hence, it is no longer necessary to decide whether the second petition for discharge was maintainable or not.

Coming to the next issue, it is urged that the petition for discharge was rejected on both occasions without citing sufficient reasons. In this regard, Mr. Mishra would argue that in the first order dated 26.02.2013, learned court below simply held that there are sufficient grounds against the accused for consideration for framing a charge and therefore, rejected the petition. On the second petition, learned court below took up only one of the two grounds raised by the petitioner in his petition dated 14.08.2013, i.e., regarding absence of valid sanction and having answered it against the petitioner, rejected the petition for discharge without stating anything with regard to the other ground urged by him.

Mr. S.K. Das has argued that the court is obliged to record reasons only if it decides to discharge the accused but not if he decides to frame charge against the accused. Since in the instant case, the court held that there are sufficient grounds for framing a charge, no further reasons were required to be stated by it.

Before adverting to the rival contentions it may be noted that some argument was made by Mr. Mishra with regard to the provision for discharge to the effect that the second petition was filed because the first petition had been filed citing the wrong provision of law, i.e., Section 239 instead of Section 227. However, this Court does not deem it proper to enter into such controversy because, firstly citing wrong nomenclature does not disentitle a party from relief if he is otherwise entitled to it in law and secondly, the proceeding before the Vigilance Court as per the Prevention of Corruption Act being in the nature of warrant procedure, Section 239 is applicable. In any case, Section 239 and Section 227 in effect, are akin to each other and there is no material difference between the two.

Coming to the other contentions, it would be proper at the outset to refer to the relevant provisions relating to discharge and framing of charge in the Cr.P.C..

Section 239 Cr.P.C. reads as under:

"239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing"

(Emphasis supplied)

From a bare reading of the provision, it is clear that while passing an order for discharge, the court must necessarily record its reasons. Section 240 of Cr.P.C. reads as follows:

"240. Framing of charge.

(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

Evidently, in contradistinction to the provision under Section 239 Cr.P.C., there is no mandate for the court to record reasons for framing a charge.

In the case of Kanti Bhadra Shah (supra), relied upon by Mr. Sangram Das, the question before the Court was, whether the court is required to record reasons for framing charge, which was answered in the negative. Similar is the case with Bhawana Bai (supra). It must be kept in mind that there is a subtle distinction between the ratio decided in the above referred cases and the facts of the present case. The challenge in the present case is the failure of the court to record reasons for rejecting the petition for discharge. It is not the same thing as framing of charge. In the scheme of Cr.P.C. beginning from Section

238 when the Magistrate ensures that the requirement of Section 207 has been complied with, the next stage is discharge. Only after the discharge application, if any, is dealt with can the court go on to next stage, i.e., framing of charge. It is also the settled position of law as affirmed by this court in the case of Pradip Kumar Pradhan vs. State of Odisha, reported in (2015) 53 OCR 581, where the following view was taken.

"6. On a reading of the aforesaid three provisions of the Code of Criminal Procedure together, it is abundantly clear therefrom that, the mandatory requirement of the court is to first consider compliance to the provisions of Section 238 Cr.P.C. & if the application for discharge is filed, the same has to be considered & only after such consideration & hearing of the petition, the Trial Court shall proceed to form an opinion whether or not there is sufficient ground for presuming that the accused has committed the offence."

(Emphasis supplied)

Thus, all the three stages, though closely related, are distinct and separate from each other. In the order dated 26.02.2013, after examining the decisions cited by the accused in some detail, learned court below simply rejected the petition by holding that:

"..........there are sufficient grounds against the accused for consideration for framing a charge and therefore, the petition filed by him stands rejected being devoid of any merit. However, it may be made clear here that the question of framing of charge shall be considered only after hearing of both the parties on the date fixed i.e., 4.03.2013...."

Evidently, while dealing with the petition for discharge, the court has jumped to the next stage, i.e., framing of charge and taking into account the considerations required for the latter stage, has rejected the petition for discharge. It is reiterated that when an application for discharge is filed, the same has to be disposed of by a reasoned order, which is clear from the use of the expression "and record his reasons for so doing" in Section 239 which obviously cannot refer only to a case where the application for discharge is allowed but not when the same is rejected. Obviously the statutory intent cannot be understood in a manner that the Court is to record its reasons only when allowing the petition but not when rejecting it. Such a proposition would be absurd. In the instant case, the petitioner had raised two grounds while seeking discharge, namely, absence of valid sanction and absence of necessary ingredients to constitute the offence of Section 409 IPC. It was therefore, incumbent upon the court below to specifically deal with the two grounds and to state as to why such grounds are acceptable or not acceptable. To amplify, the Court ought to have given its findings as regards the validity of sanction as also the existence or otherwise of the essential ingredients of the offence under Section 409 IPC.

In view of the statutory mandate discussed above, it will not do for the court to simply make a bald observation as quoted hereinabove while dealing with the application for discharge. What the Court cited as reason to reject the apprehension is actually supposed to be the reason for framing charge, the stage of which had not yet come.

In this regard, a reference can be made to the case of L. Muniswamy (supra)

"xxxxxxxxxx. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. (Emphasis supplied)

It is therefore, abundantly clear that it is incumbent upon the court to record its reasons for accepting or not accepting the specific grounds urged by the accused to discharge him from the case.

As has already stated hereinbefore, the order dated 26.02.2013 is cryptic and does not disclose as to for what reasons the grounds urged by the accused were found to be untenable or not acceptable. Similarly in the order dated 16.07.2014, the ground relating to validity of the sanction alone was considered while the other ground, i.e., relating to absence of basic ingredients of the offence under Section 409 Cr.P.C. was not considered. In the petition filed on 14.08.2013 by the accused for discharge, it was specifically mentioned as follows;

"3. That, the FIR and entire prosecution report shows that, the accused was never entrusted with any property or money to make-out a case against him U/s. 409 I.P.C. and once the accused is discharged from the offence U/s. 409 IPC, there cannot be any ground to frame charge under the P.C. Act."

This ground has not been answered at all by the learned Special Judge.

The contention advanced by learned counsel for the Vigilance is therefore, not tenable for the reasons indicated hereinbefore.

For the forgoing reasons therefore, this court is of the considered view that the learned court below committed manifest error in not dealing with the petition for discharge as per the statutory mandate for which, the impugned orders are rendered unsustainable in the eye of law and hence, liable to be interfered with to such extent. It must be kept in mind that the statute having provided an opportunity to the accused to seek discharge, the same cannot be taken lightly as otherwise the very concept of fair trial shall be jeopardized. For such reason therefore, this court deems it to proper to remit the matter to the court below to pass orders afresh on the discharge petition only to the extent of the ground urged in paragraph-3 thereof after hearing the parties.

In the result, the CRLREV is allowed in part. The impugned order dated 16.07.2014 is hereby set aside only for the limited purpose of allowing the court below to pass order afresh in the manner as indicated above. It is made clear that the finding relating to validity of the order of sanction has not been interfered with by this Court.

Since the matter is of the year 2012 and has been stalled because of the pendency of this criminal revision, it is directed that the learned court below shall pass orders on the discharge petition as stated above within a period of four weeks from the date of receipt of the order of this court. It is further made clear that no adjournment shall be allowed to any of the parties for the purpose.

The CRLREV is disposed of accordingly.

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