Orissa High Court
Suresh Chandra Sahu @ Suresh vs State Of Odisha And Another Opposite ... on 7 November, 2025
Author: A.K. Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2810 of 2025
An application under Section 528 of the BNSS
Suresh Chandra Sahu @ Suresh Petitioners
Sahu and another
Represented By Adv.
Mr. Tirth Kumar Sahu,
-versus-
State Of Odisha and another Opposite Parties
Represented By Adv.
Ms. Babita Kumari Sahu, AGA
CORAM:
THE HON'BLE MR. JUSTICE A.K.MOHAPATRA
Date of hearing : 07.08.2025 | Date of Judgment : 07.11.2025
A.K. Mohapatra, J. :
1. The present CRLMC application has been filed by the Petitioners with a prayer to quash the impugned order of the ADJ-cum-Special Judge, Bhanjanagar, dated 26.06.2025 under Annexure-7 passed in G.R. Case No. 80/2024 (Special Act) arising out of Tarasing P.S. Case No.0376/2024, for commission of offence punishable under sections 417/ 376(2)n)/ 379/ 506/ 294/ 34 of the I.P.C, 1860 read with sections 3(1)(r)/ 3(1)(s)/ 3(1)(w)/ 3(2)(v)/ 3(2)(va) of the SC&ST (PoA) Act, 1989. A further prayer has also Page 1 of 35 been made to direct the learned trial court to call for Notary Register from the Notary Public, Dasapalla, Sri S.K.Patra, Regd. No.29/99, so as to bring on record the registration of affidavit dated 23.05.2024 allegedly sworn by the informant-victim.
FACTUAL MATRIX OF THE CASE
2. The factual background leading to the filing of the present application as culled out from the FIR and the chargesheet, in short, is that initially the Opposite Party No.2-victim, on 09.12.2024, lodged a complaint that one Sriram Prasad Sahu @ Lipun (i.e. the principal accused), who is the son of the present Petitioners, gradually developed a friendship with the victim. Taking advantage of the friendship, the principal accused Sriram Prasad Sahu entered into the Victim‟s house and while she was fetching water for him, the accused caught hold of the victim from the back and sexually assaulted the victim forcibly without her consent. Thereafter, the accused threatened to kill the victim-Opposite Party No.2 if she divulged the incident to either the police or her husband. It is also pertinent to mention here that the victim is a married woman with two children and, at one point, the husband of the victim had chanced upon the principal accused and the victim while they were lying in a compromised position. The final form also reveals that the aforementioned principal accused has repeatedly committed Page 2 of 35 rape on the victim with the promise to marry her and, in doing so, he has taken cash (around one lakh rupees) and jewellery (gold and silver) from the victim. Later, when the victim contacted the parents of the principal accused, i.e. the present Petitioners, it has been alleged that the present Petitioners have made casteist aspersions on the victim and threatened to oust her from the village.
3. The Final form at Annexure-4, further reveals that at the time of filing of the final form, the principal accused-Sriram Prasad Sahu had not yet been arrested and his medico-legal examination was yet to be conducted. However, the present Petitioners were earlier arrested and had approached this Court in ABLPL No.14596 of 2024 for anticipatory bail. Although this Court did not grant anticipatory bail to the Petitioners, they were directed to surrender before the court below, upon which they were to be released on bail subject to appropriate terms and conditions. Pursuant thereto, the Petitioners surrendered before the learned Special Judge, Bhanjanagar, and were released on bail vide order dated 25.01.2025 under Annexure-3. Subsequently, vide order dated 06.02.2025 in Spl.G.R.80/2024, the learned Special Judge, Bhanjanagar has taken cognizance of the offences as mentioned hereinabove.
4. At present, while the trial court is about to frame the charge and for consideration of their discharge application the Petitioners have moved a Page 3 of 35 petition under section 91 of Cr.P.C (i.e. section 94 of BNSS) before the learned court in seisin over the matter to call for the Notary Register from the Notary Public, Daspalla, Sri S.K.Patra to bring on record the fact of the execution of an affidavit by the victim-Opposite Party No.2. It is the Petitioners‟ stance that that the Victim-Opposite Party No.2 has actually married the principal accused, i.e. the son of the present Petitioners, and she has sworn an affidavit in that respect, the record of which is available in the aforesaid notary register. The aforesaid petition, a copy of which is available under Annexure-6, has been rejected by the learned ADJ-cum-Special Judge, Bhanjanagar, Ganjam vide order dated 26.06.2025, under Annexure-
7. Aggrieved by the aforesaid rejection, the Petitioners have approached this Court by filling the present CRLMC application.
CONTENTIONS OF THE PETITIONERS
5. Heard Mr.Tirth Kumar Sahu, learned counsel appearing for the Petitioners. It is the Petitioners‟ firm stance that the present FIR is false and motivated and has been filed at the instance of the Opposite party No.2- victim who has married the principal accused, i.e. the son of the Petitioners, and has executed a notarized affidavit evidencing such fact. At the very outset, the learned counsel for the Petitioners contended that the I.O in the present case, being biased, has submitted the chargesheet without Page 4 of 35 conducting proper investigation and has falsely mentioned in the chargesheet that a prima facie case is well made out against the present Petitioners. He has also submitted that the learned Special Judge, Bhanjanagar has also arbitrarily taken cognizance of the offences mentioned hereinabove without applying judicial mind to the same.
6. Continuing his submission, the learned counsel for the Petitioners further stated before this Court that the Opposite Party No.2-victim is a married lady who has now married the son of the present Petitioners, i.e. the principal accused at the Bagdevi temple premises and she has done so by suppressing the fact of her previous marriage. He further contended that the Opposite Party No.2-victim has also sworn an affidavit dated 23.05.2024 before the Notary Public, Daspalla, affirming therein that she has married the son of the present Petitioners out of „excessive love and affection‟ and that the said affidavit has been made so as to remove any hindrances to their spousal arrangement. It was submitted that the production of the Notary Register of the aforesaid Notary Public is essential in the present case insofar as it will enable a proper inquiry/ investigation/ trial, enlighten the trial court regarding the actual facts of the case and bring to light the truthfulness/ falsehood of the informant‟s case.
7. Next, referring to the acknowledgement of dispatch at Annexure-9 series, the learned counsel submitted before this Court that the present Page 5 of 35 Petitioners have conveyed the aforesaid fact regarding the affidavit sworn by the Opposite Party No.2-victim to the IIC of Tarasing police station and the Superintendent of Police, Ganjam. However, the IO has not considered the same while conducting the investigation in the matter and he has not included the same in the chargesheet. Further, the learned counsel for the Petitioners contended that trial court has also not taken the aforesaid fact into consideration while rejecting the petition dated 21.06.2025 filed by the Petitioners.
8. Thereafter, the learned counsel for the Petitioners contended that the term „Seizure‟, in the context of criminal investigation, has been judicially interpreted to mean the act of taking possession of property, documents, or any item believed to be relevant to a criminal case. In order to reinforce his statement, the learned counsel referred to the decision of the Hon‟ble Supreme Court in State of Maharashtra vs. Natwaral Damodardas Soni, reported in (1980) 4 SCC 669, and submitted that seizure also includes legal possession and control over evidence. In such context, the learned counsel for the Petitioners stated that the very act of the IO receiving the aforesaid documents during the investigation constitutes a constructive seizure, which then creates a legal obligation upon the IO to forward the materials to trial court. Additionally, it was submitted that as per the Draft Criminal Rules of Practice 2021, specifically Rule-4, a duty is Page 6 of 35 cast upon the IO to list and disclose before the Court all the documents collected during investigation, irrespective of whether such documents were relied upon. A failure on the part of the IO to do so results in investigative suppression and operates to the prejudice of the right of the accused to defend himself.
9. It was further contended that since the aforesaid materials were in the knowledge of the IO, not forwarding the aforesaid materials to the trial court constitutes a serious procedural irregularity which not only violates the right of the accused to a fair trial under Article 21 of the Constitution of India but also infringes upon the established procedure under the Cr.P.C which mandates that all the documents collected by the prosecution must be furnished to the accused. The learned counsel has stated that the aforesaid materials are exculpatory and crucial to fundamentally disprove the allegations against the Petitioners. Therefore, deliberate non-inclusion of such materials amounts to suppression veri, expression falsi, i.e. suppression of truth is equivalent to expression of falsehood. Moreover, even if prosecution chose not to rely upon the aforesaid documents, their submission during the investigation makes such documents part of the investigation, i.e. they are relevant under section 91 of the Cr.P.C.
10. Learned counsel for the Petitioners, at this point, referred to the impugned order under Annexure-7 and contended that the learned trial court Page 7 of 35 while passing the impugned order has not properly interpreted Section 91 of Cr.P.C, i.e. section 94 of the BNSS. It was submitted that the aforesaid provision clearly states that summons for production of any document or other things can be issued at any time of the proceeding. The learned counsel for the Petitioners further contended that the ultimate objective behind section 91 of the Cr.P.C (i.e. section 94 BNSS) is to empower the Court to bring on record any document or other thing which, in the opinion of the Court, are not on record and are relevant and cogent to the conduction of the investigation/ inquiry/ trial/ other proceedings. It was contended that the learned trial court has failed to properly exercise the supplementary powers under section 91 of the Cr.P.C and has failed to uphold the ultimate objective of the aforesaid section.
11. To further substantiate his position, the learned counsel for the Petitioners has relied on the decision of the Bombay High Court in Dr. Sublendu Prakash Diwakar v. The State of Maharashtra, bearing Criminal Writ Petition(ST) NO.17507 of 2023, the decision of the Hon‟ble Supreme court in Manoj v. State of M.P., reported in (2023) 2 SCC 353 and in Nitya Dharmananda v. Gopal Sheelum Reddy, reported in (2018) 2 SCC 93.
12. Lastly, the learned counsel submitted that the production of the Notary Register is not only expedient in the interest of justice but also crucial to ascertain whether the ingredients of the alleged offences are Page 8 of 35 fulfilled, especially since the FIR has been filed by the informant to harass the Petitioners and their family members. As such, it was contended that the impugned order under Annecure-7, being illegal, erroneous and arbitrary, be set aside by this Court and the learned court below be directed to summon Sri S.K. Patra, Notary Public, Dasapalla, Nayagarh, Regd. No. 29/99 with a direction to produce the aforesaid Notary Register.
CONTENTIONS OF THE OPPOSITE PARTIES
13. Heard M/s.Babita Kumari Sahu, learned AGA appearing on behalf of the Opposite Party-State. At the very outset, the prosecution has supported the impugned order dated 26.06.2025 of the learned ADJ-cum- special judge, Bhanjanagar, Ganjam and has maintained the stance that there is no illegality with the aforesaid impugned order.
14. The learned counsel for the Opposite Party-State submitted before this Court that contrary to the submission of the Petitioners, the affidavit being referred to by them has not been seized by the police during the investigation. Instead, the Petitioners have been handed over the police papers as per section 207 Cr.P.C. Moreover, since the Petitioners had filed the petition under section 91 of Cr.P.C at the stage of discharge, the trial court is not required to examine such evidence at the time of framing of charge. It was contended that during the stage of framing of charge, the trial Page 9 of 35 court will analyse the materials in the police papers and decide if there are sufficient materials to proceed with the framing of the charge and there is no requirement to peruse the documents relied upon by the Petitioners.
15. To reinforce her arguments, the learned counsel relied upon the dictum of the Hon‟ble Apex Court in State of Odisha v. Debendra Nath Padhi, reported in (2005) 1 SCC 568 and State of Rajasthan v. Swarn Singh, reported in 2024 SCC OnLine SC 5537, and submitted before this Court that the accused, at the time of framing of charge, cannot invoke section 91 of the Cr.P.C. Referring to the aforesaid judgement, she further contended that Accused-Petitioners shall not be entitled to avail the benefit of section 91 of Cr.P.C until the trial reaches the stage of defence. Moreover, the necessity and desirability of the document or other thing sought for under section 91 Cr.P.C is to be appraised with reference to the stage at which such section 91 Cr.P.C petition is made and the party by whom it is filed. Learned counsel for the Opposite Party No.2-State contended that since in the instant case the chargesheet has been filed, cognizance has been taken, and it is prior to the framing of charge that the Accused-Petitioners have filed the petition under section 91 Cr.P.C, it can very well be said that the aforesaid section does not per se confer any right on the Accused-Petitioners to produce any document in their possession to prove their defense.
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16. Furthermore, the learned counsel for the Opposite party-State contended that even though the accused-Petitioners have maintained that they have not filed the petition under section 91 of Cr.P.C for consideration of the charge, the learned counsel, referring to the copy of the petition filed by the accused-Petitioners under section 91 of Cr.P.C under Annexure-6, specifically paragraph 6 thereof, contended that the accused-Petitioners have filed the aforesaid petition to bring out the "real fact and circumstance of the case so also the truthfulness and falsehood of the case of the informant". This indicates that the petition under section 91 of Cr.P.C was filed to establish the evidence before the charge. Accordingly, the learned counsel for the Opposite Party-State contended that the truthfulness of the case can only be determined after adducing evidence at the stage of trial and not prior to the trial as has been attempted by the Petitioners. As such, it was contended that the learned trial court has not committed any illegality in rejecting the application of the Petitioners under section 91 of Cr.P.C.
17. Lastly, referring the Bombay High Court decision in Sublendu Prakash Diwakar's case (supra), the learned AGA submitted that in the aforesaid case the IO had seized a document which was then not forwarded to the trial court. In the instant case however, the affidavit cited by the Petitioner has not been seized by the IO. Therefore, the aforesaid decision in Sublendu Prakash Diwakar's case (supra) is not applicable to the case of Page 11 of 35 the Petitioners. In such view of the matter, learned counsel for the Opposite Party-State submitted that the impugned order of the learned ADJ-cum- Special Judge dated 26.06.2025, under Annexure-7, is well-reasoned and does not call for interference by this Court. Accordingly, the learned counsel for the Opposite Party-State submitted that the present CRLMC application by the Petitioners, being devoid of merit, is liable to be dismissed. ANALYSIS
18. Heard the learned counsels appearing for the respective parties, perused the documents on record and the submissions of the parties. The instant case emanates out of an FIR filed by the Opposite Party No.2-victim alleging commission of the aforementioned offences, against the principal- accused, who is the son of the present Petitioners. At present, the final form has been filed and the trial court is about to frame the charge. Before framing of the charge, at the stage of discharge, the Petitioners have filed an application under section 91 of Cr.P.C (presently section 94 of the BNSS) before the trial court with a prayer to summon the Notary Register from the Notary Public, Daspalla, so as to bring on record an affidavit which, as per the Petitioners, has been executed by the Opposite Party No.2-victim evidencing the fact of her marriage with the principal accused i.e. son of the present Petitioners. Such application of the Petitioners has been rejected by Page 12 of 35 the learned trial court. It is this impugned order of rejection dated 26.06.2025 of the learned ADJ-cum-Special Judge, Bhanjanagar which is under challenge in the present CRLMC application.
19. After a thorough examination of the CRLMC application and the submissions of the learned counsels appearing for the parties, it is clear that the central issue in the present case is as to whether the Petitioners have a right to seek for documents under section 91 of Cr.P.C at the stage of discharge. Furthermore, since the order of rejection of the trial court has been assailed, this Court is also required to ascertain the legality and validity of the impugned order dated 26.06.2025, under Annexure-7.
20. In the context of the present matter, it is pertinent to note that the criminal process is ordinarily set in motion with the registration of an FIR, which forms the foundation for investigation into the alleged offence. Upon registration of the FIR, the IO undertakes an investigation to collect evidence and identify the persons involved. Once the investigation is completed, the IO prepares a chargesheet or final form setting out the details of the investigation, including the articles and documents seized, the witnesses examined, the offences alleged to have been committed etc. The chargesheet is thereafter submitted to the Magistrate under Section 193 of the BNSS (corresponding to Section 173 of the Cr.P.C), which forms the basis for the Court‟s consideration at the pre-trial stage. Page 13 of 35
21. After receipt of the chargesheet, the Magistrate takes cognizance of the offences under Section 210 of the BNSS (corresponding to Section 190 of the Cr.P.C). In the event the proceeding has been instituted on a police report, as in the present case, the accused is entitled, free of cost, to copies of the police papers including the FIR, statements recorded under Sections 161 and 164 Cr.P.C, and any document or extract thereof forwarded to the Magistrate under Section 193(6) of the BNSS (i.e. Section 173(5) Cr.P.C), in accordance with Section 230 of the BNSS (erstwhile Section 207 Cr.P.C). Thereafter, the stage of framing of charge commences under Section 251 of the BNSS (i.e. Section 228 Cr.P.C). However, prior thereto, in terms of Section 250 of the BNSS (i.e. Section 227 Cr.P.C), it is incumbent upon the trial court to consider the record of the case, the documents submitted therewith, and the submissions of both the prosecution and the accused. If, upon consideration of the aforesaid materials, the trial court arrives at a conclusion that there is no sufficient ground to proceed against the accused, then the trial court shall discharge the accused and record the reasons for doing so. What this means is that, the stage of discharge only requires the trial court to consider whether there exists any sufficient ground to proceed against the accused. Here, the expression „ground‟ does not import a finding of guilt but merely denotes the existence of material warranting a trial. It is only at the stage of the trial that the guilt or innocence of the accused can be Page 14 of 35 ascertained. At the stage of discharge the court is not expected to undertake an elaborate evaluation or to scrutinize the probative value of the evidence. It is sufficient if the available material, when accepted as it stands, prima facie connects the accused with the alleged crime (see Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, reported in (1989) 1 SCC 715; Union of India v. Prafulla Kumar Samal, reported in (1979) 3 SCC 4; and State of Bihar v. Ramesh Singh, reported in (1977) 4 SCC 39).
22. The aforesaid position of law has been reiterated and supplemented by the Hon‟ble Apex Court in State of M.P. v. Mohanlal Soni, reported in (2000) 6 SCC 338, wherein, after referring to several of its previous decisions, it was observed by the Apex Court that the settled judicial position is that the framing of charge is warranted when the court, upon a prima facie consideration of the record and the materials available therein, finds sufficient ground to proceed against the accused. The court is not expected to undertake an elaborate appraisal of evidence or determine whether the material adduced would suffice for conviction. Hence, the established principle is that at this preliminary stage, the court must only ascertain the existence of a prima facie case and refrain from assessing the probative worth of either the prosecution‟s materials or defence of the accused. Likewise in Sheoraj Singh Ahlawat v. State of U.P., reported in (2013) 11 SCC 476, the Hon‟ble Apex Court referring to its previous Page 15 of 35 pronouncements in Onkar Nath Mishra v. State (NCT of Delhi), reported in (2008) 2 SCC 561 and other judgements, observed that at the stage of framing of charge, the court only examines whether the materials that are available on record, taken at face value, disclose the ingredients of the alleged offence. It is not incumbent upon the court to assess the probative value of evidence, rather a strong suspicion based on the materials is sufficient to justify framing of charge.
23. Proceeding along similar lines, recently in Ram Prakash Chadha v. State of U.P., reported in (2024) 10 SCC 651, the Hon‟ble Supreme Court allowed the appeal filed against the order of the High Court dismissing an application under section 482 Cr.P.C which was filed against the order of dismissal of the appellant‟s discharge application. The Hon‟ble Apex Court, after discussing in detail the legal position regarding section 227 of the Cr.P.C, has made the following observations;
"3. Before narrating the facts, we should bear in mind that exercise of power under Section 227CrPC, is legally permissible only by considering "the record of the case and the documents submitted therewith". Therefore, necessarily, the question is what is the meaning of the expression "the record of the case and documents submitted therewith"? According to us, it refers only to the materials produced by the prosecution and not by the accused. A three-Judge Bench of this Court considered this question in State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415] . It was held that the said expression as postulated in Section 227CrPC, relates to the case and the documents referred to under Section 209CrPC.Page 16 of 35
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5. In view of Section 209 CrPC, as extracted above, to know what exactly are the documents falling within the said expression Sections 207 and 208CrPC, are also to be looked into.
6. We referred to the provisions under Section 227 and the decision in Debendra Nath Padhi case [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415] only to conclude that even for the purpose of referring to the facts leading to the case, as also for consideration of the contentions for the purpose of Section 227CrPC, we cannot refer to the grounds carrying or referring to the case of the appellant-accused, in view of the aforesaid provisions of law and position of law, requiring to confine such consideration only with reference to the materials produced by the prosecution.
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16. We have already considered the meaning of the expression "the record of the case and the documents submitted therewith" relying on the decision in Debendra Nath Padhi case [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415] only to reassure as to what are the materials falling under the said expression and thus, available for consideration of an application filed for discharge under Section 227CrPC. In the light of the same, there cannot be any doubt with respect to the position that at the stage of consideration of such an application for discharge, defence case or material, if produced at all by the accused, cannot be looked at all. Once "the record of the case and the documents submitted therewith" are before the Court they alone can be looked into for considering the application for discharge and thereafter if it considers that there is no sufficient ground for proceeding against the accused concerned then he shall be discharged after recording reasons therefor. In that regard, it is only appropriate to consider the authorities dealing with the question as to what exactly is the scope of consideration and what should be the manner of consideration while exercising such power.
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24. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and Page 17 of 35 weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227CrPC, and entering into the scope of power under Section 232CrPC, cannot be ruled out as such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI [Om Parkash Sharma v. CBI, (2000) 5 SCC 679 : 2000 SCC (Cri) 1014] . Taking note of the language of Section 227CrPC, is in negative terminology and that the language in Section 232CrPC, is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227CrPC, to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232CrPC, even though the said stage has not reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232CrPC, available only after taking the evidence for the prosecution and examining the accused."
(Emphasis supplied)
24. Likewise, the Hon‟ble Supreme Court in M.E. Shivalingamurthy v. CBI, reported in (2020) 2 SCC 768, while entertaining an appeal against the order of the High Court, whereby the order of the Magistrate allowing the Appellant‟s application for discharge was set aside, summarised the Page 18 of 35 legal principles governing an application seeking discharge in the following words;
"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
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18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 : AIR 2005 SC 359] )."
(Emphasis supplied)
25. As is clear from the aforesaid discussion, it is a fairly well- established principle of law that at the stage of framing of charge the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The trial court/ magistrate is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. A roving and fishing inquiry is impermissible at the stage of framing of charge, and at the stage of considering the discharge application. In doing so, the trial court can only look at the „record of the case and the documents submitted therewith‟. As to what constitutes the „record of the case and the documents submitted therewith‟, the position of law regarding the same has been clarified by the Hon‟ble Supreme Court in State of Orissa v. Debendra Nath Padhi, reported in (2005) 1 SCC 568, Page 20 of 35 which has thereafter been followed in a catena of decisions (see State of Rajasthan v. Swarn Singh, reported in 2024 SCC OnLine SC 5537; State v. Eluri Srinivasa Chakravarthi, reported in 2025 SCC OnLine SC 1215; Sheoraj Singh Ahlawat v. State of U.P., reported in (2013) 11 SCC 476; State of M.P. v. Rakesh Mishra, reported in (2015) 13 SCC 8; M.E. Shivalingamurthy (supra) and other similar pronouncements). In Debendra Nath Padhi's case (supra), the respondent was a public servant charged under the Prevention of Corruption Act, 1988. After filing of chargesheet, when the matter was put up for framing of charge, the respondent filed an application under section 91 Cr.P.C to call for certain documents, which according to the respondent, were essential to provide him with an opportunity to demonstrate that there were no sufficient grounds to proceed against him. The trial court rejected the such application of the respondent but the High Court reversed the decision of the lower court. The Hon‟ble Supreme Court then allowed the appeals, set aside the impugned judgement of the High Court and also overruled the dictum of the two-judge bench in Satish Mehra v. Delhi Administration, reported in (1996) 9 SCC 766 wherein it was held that the trial court can consider the materials produced by the accused at the stage of discharge. The Hon‟ble Supreme Court, while holding that the accused has no right to produce any material at the stage of framing of charge or taking cognizance (in paragraph 23) and that the Page 21 of 35 accused cannot invoke section 91 of Cr.P.C at the stage of discharge to summon documents not part of the records of the case, made the following observations;
"8. What is the meaning of the expression "the record of the case" as used in Section 227 of the Code. Though the word "case" is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit "the case" to the Court of Session and send to that court "the record of the case" and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
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16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well- settled proposition. This aspect, however, has been adverted to Page 22 of 35 in State Anti-Corruption Bureau v. P. Suryaprakasam [1999 SCC (Cri) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. (emphasis supplied) The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same -- whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code.
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18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207- A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light Page 23 of 35 that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused"
cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.
23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
(Emphasis supplied)
26. The Hon‟ble Supreme Court in Debendra Nath Padhi's case (supra) have also referred to section 91 of the Cr.P.C, and have made the following observations, specifically pertaining to the scope, purpose and limitations of section 91 Cr.P.C;
"25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under Page 24 of 35 the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof."
(Emphasis supplied)
27. Along the same lines, recently in State of Gujarat v. Dilipsinh Kishorsinh Rao, reported in (2023) 17 SCC 688, the respondent had initially filed a discharge application which was rejected by the trial court. The respondent then approached the High Court by filing a revision application against the earlier order of rejection, which was allowed by the High Court. The Hon‟ble Apex Court, while allowing the appeal and setting aside the impugned order of the High Court, relying on its earlier dictum in State of T.N. v. N. Suresh Rajan, reported in (2014) 11 SCC 709, made the following observation;
Page 25 of 35
"10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.
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12. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227CrPC is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency."
(Emphasis supplied)
28. In the aforesaid context, it would also be most expedient to place reliance on the recent pronouncement of the Hon‟ble Apex Court in Sarla Gupta v. Enforcement Directorate, reported in (2025) 7 SCC 626. The Hon‟ble Apex Court, while dealing with the issue concerning the right of an accused to seek production of documents not relied upon by the prosecution, has undertaken a detailed exposition of the relevant statutory provisions under the Cr.P.C, the Draft Rules in Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re, reported in (2021) 10 SCC 598, and the governing judicial precedents. After an exhaustive discussion on the scope and ambit of such right, the Hon‟ble Supreme Court has enunciated the following principles in paragraphs 38 and 40 of the judgment; Page 26 of 35
"38. Therefore, it is held that a copy of the list of statements, documents, material objects and exhibits that are not relied upon by the investigating officer must also be furnished to the accused. As held by this Court, the object is to ensure that the accused has knowledge of the documents, objects, etc. in the custody of the investigating officer which are not relied upon so that at the appropriate stage, the accused can apply by invoking the provisions of Section 91CrPC (Section 94 BNSS) for providing copies of the documents which are not relied upon by the prosecution. This decision upholds the right of the accused to apply for the supply of copies of the documents which are not relied upon by the prosecution at an appropriate stage by making an application to the court ***
40. Therefore, what can be deduced from the above decisions is that the accused has the right to ask for the supply of documents not relied upon by the prosecution by making an application to the court. The question is at what stage the accused can demand copies of the documents."
(Emphasis supplied) Thereafter, in paragraphs 41 through till 52 of Sarla Gupta (supra), the Hon‟ble Apex Court proceeded to examine the issue as to whether, at the stage of framing of charge, an accused is entitled to seek production of the documents that have not been relied on by the prosecution. After a thorough analysis of the relevant statutory provisions (including sections 227, 91 and 94 of the Cr.P.C, 1973 as well as section 94 of the old Cr.P.C, 1898) and governing judicial precedents (including the landmark pronouncement in Debendra Nath Padhi (supra), along with V.K. Sasikala v. State, reported in (2012) 9 SCC 771; Manu Sharma v. State (NCT of Delhi), reported in (2010) 6 SCC 1; Manoj v. State of M.P., reported in Page 27 of 35 (2023) 2 SCC 353; Om Parkash Sharma v. CBI, reported in (2000) 5 SCC 679 and other case laws), the Hon‟ble Supreme Court has arrived at the following conclusion, the relevant portion of which is quoted hereinbelow;
"44. Thus, this Court observed that the entitlement of the accused to seek an order under Section 91CrPC for the production of the documents that are not relied upon would ordinarily not come till the stage of defence. These observations are in the context of what constitutes "the record of the case" for the purposes of Section 227CrPC. Even this judgment recognises the right of the accused to seek documents at the time of leading defence evidence by invoking Section 91CrPC. We may note here that what is observed by this Court is that there is no absolute prohibition on an accused making an application under Section 91CrPC, before the stage of entering upon defence. It is held that ordinarily, the entitlement of the accused to apply under Section 91 will not arise till the stage of defence.
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47. The right of the accused to apply under Section 91CrPC for production of the documents not relied upon by the prosecution at the stage of leading defence evidence has been recognised by the decisions of this Court including the decisions in Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re [Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re v. State of A.P., (2021) 10 SCC 598 : (2022) 1 SCC (Cri) 100] and Manoj [Manoj v. State of M.P., (2023) 2 SCC 353 : (2023) 2 SCC (Cri) 1] .
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52. Thus, we conclude that at the time of hearing for framing of charge, reliance can be placed only on the documents forming part of the charge-sheet. In case of the PMLA, at the time of framing charge, reliance can be placed only on those documents which are produced along with the complaint or supplementary complaint. Though the accused will be entitled to the list of documents, objects, exhibits, etc. that are not relied upon by the ED at the stage of framing Page 28 of 35 of charge, in ordinary course, the accused is not entitled to seek copies of the said documents at the stage of framing of charge.
*** 68.4. At the time of hearing for framing of charge, reliance can be placed only on the documents forming part of the charge-sheet. In case of the PMLA, at the time of framing charge, reliance can be placed only on those documents which are produced along with the complaint or supplementary complaints. Though the accused will be entitled to a list of documents, objects, exhibits, etc. that are not relied upon by the ED at the stage of framing of charge, in ordinary course, the accused is not entitled to seek copies of the said documents at the stage of framing of charge."
(Emphasis supplied)
29. Reverting back to the instant case at hand, the Opposite Party-State has asserted that all relevant documents, as mandated under Section 207 Cr.P.C., i.e. the police papers, have been duly supplied to the Petitioners. The Petitioners have also nowhere specifically denied the same. However, the petitioners have alleged suppression of exculpatory evidence on the part of the IO. In this regard, as is clear from the aforesaid analysis, it is once again reiterated that at the stage of framing of charge the question of presenting evidence from the side of the accused does not arise. The Petitioners have further contended that since the IO was in possession of the affidavit, it amounted to a constructive seizure, thereby casting an obligation upon the IO to forward the same to the trial court. The Petitioners have relied on the Draft Criminal Rules on Practice, 2021 (i.e. "Draft Rules"), specifically Rule 4 thereof, to contend that the IO is bound to disclose all Page 29 of 35 documents collected during the investigation, whether relied on or not. In this context, the Petitioners have also relied on the documents under Annexure-9.
30. Upon perusal of the documents appended to Annexure-9, it appears that the same comprises of representations addressed to the IIC of Tarasingi Police Station and the Superintendent of Police, Chatrapur, requesting inclusion of one notary public and one advocate who had identified the deponent (i.e. the victim-Opposite Party No.2) within the scope of investigation. The said annexure also contains copies of a consignment tracking report showing delivery of a consignment to IIC and Superintendent of Police. However, there is nothing on record to suggest that the consignment contains the affidavit, the notary register, or any record thereof, as claimed by the Petitioners. Therefore, it cannot be conclusively ascertained at this stage that the IO was indeed in possession of the Notary Register or the affidavit which has allegedly been executed by the Victim- Opposite Party No.2. Similarly, Annexure-8 comprises of a copy of an affidavit allegedly executed by the Victim before the Notary Public, Daspalla, declaring therein her marriage with the principal accused, i.e. the son of the present petitioners. At present, the genuineness of the affidavit remains unverified, and the circumstances of its execution are equally uncertain. It is pertinent to note that the legality of notarial marriages and of Page 30 of 35 notaries issuing marriage certificates has been consistently questioned by this Court (reference in this regard may be had to the decision by a Division Bench of this court in Rohit Kumar Behera v. State of Odisha, reported in 2021 SCC OnLine Ori 1482 and in Partha Sarathi Das v. State of Orissa & Ors., reported in 2023 SCC OnLine Ori 5657).
31. Nevertheless, this Court is of the considered view that the aforesaid issues can effectively be determined only at the stage of trial where the parties can adduce evidence in support of their claims, and, as such they bear little consequence for the present adjudication and need not detain this Court further, since, the veracity of the Petitioners‟ prayer falls squarely to be examined in the context of the impugned order dated 26.06.2025, under Anenxure-7, passed by learned ADJ-cum-Special Judge, Bhanjanagar, Ganjam. If the said order is found to be free from infirmity, the Petitioners‟ challenge cannot be sustained. Conversely, if any illegality or irregularity is discerned therein, the Petitioners‟ contention would merit acceptance.
32. Furthermore, since the Petitioners have relied on the Draft Rules, it would be apropos to refer to Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re, reported in (2021) 10 SCC 598, wherein the Hon‟ble Supreme Court has observed that;
"11. The Amici Curiae pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other Page 31 of 35 material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under CrPC ["91. Summons to produce document or other thing.--(1) Whenever any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.(3) Nothing in this section shall be deemed--(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."] for their production during the trial, in the interests of justice. It is directed accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)]"
(Emphasis supplied) Ergo, it can clearly be seen that in the aforesaid paragraph-11, while modifying the Draft Rules, specifically Rule 4 thereof which has been relied on by the Petitioners, the Hon‟ble Supreme Court has affirmed the Page 32 of 35 right of the accused to seek production of relevant documents under section 91 of the Cr.P.C at the stage of trial. As has been already clarified hereinbefore, the present proceeding has not yet reached the stage of trial.
33. At present, the proceeding is at the stage of discharge before the charge is framed by the trial court. It is at this stage of the proceeding that the accused-Petitioners have filed a petition under section 94 of BNSS (i.e. section 91 of the Cr.P.C), a copy of which is available at Annexure-6, with a prayer to summon the Notary Register of the Notary Public, Daspalla so as to bring on record the registration of the purported affidavit dated 23.05.2024 executed by the Victim-Opposite Party No.2 evidencing the fact of the marriage between the victim and the son of the present Petitioners, who is also the principal accused. It is the Petitioners‟ contention that the document in question was available to the IO during the investigation but he has consciously chosen not to include the same in the chargesheet. Per contra, the Opposite Party No.2-State contends that the said document was never seized by the IO in the first place, therefore there is no obligation on the part of the IO to introduce/ forward the same to the trial court.
34. Be that as it may, as has already been comprehensively discussed, before framing of the charge, at the stage of discharge, the learned trial court can only examine the documents and materials on the record, i.e. only the materials filed along with the Chargesheet. At the stage of framing of Page 33 of 35 charge, it is not the guilt of the accused that is under adjudication, rather, the trial court considers whether there are sufficient grounds to proceed to the stage of trial. Upon an evaluation of the impugned order of the learned trial court, in light of the aforesaid analysis, this Court is of the view that the learned ADJ-cum-special Judge, Bhanjanagar, Ganjam has not committed any illegality in passing the order dated 26.06.2025 under Annexure-7. As such, the impugned order dated 26.06.2025 does not warrant any interference by this Court in exercise of its inherent powers under section 528 of the BNSS (i.e. erstwhile section 482 Cr.P.C) is necessary.
35. Lastly, as regards the apprehension expressed by the accused- Petitioners that they may be compelled to undergo trial despite being in possession of material of unimpeachable character or sterling quality, it is pertinent to note that they are not left remediless. To allay such apprehension, this Court finds guidance in the observations of the Hon‟ble Supreme Court in paragraph 29 of Debendra Nath Padhi's case (supra), that the plenitude of the High Court‟s powers under Section 482 of the Code and Article 226 of the Constitution enables it to intervene in appropriate cases to prevent abuse of the process of law or to secure the ends of justice, within the parameters delineated in State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335. Therefore, if the Petitioners possess such unimpeachable material and choose to file an appropriate application at Page 34 of 35 a later stage, it would be open to them to invoke the inherent jurisdiction of this Court.
36. Ultimately, in view of the aforesaid analysis, the present CRLMC application is hereby rejected. However, liberty is granted to the Petitioners to file a suitable application before the appropriate forum, at an appropriate stage, to bring their evidence on record, if they so desire. There shall be no order as to costs.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 07th November, 2025/ S.K. Rout, Jr. Stenographer Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Nov-2025 11:13:53 Page 35 of 35