Orissa High Court
Shiba Prasad Singh vs State Of Odisha (Opid) on 14 November, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.761 of 2024
Shiba Prasad Singh .... Appellant
Mr. Devashis Panda, Advocate
-versus-
State of Odisha (OPID) .... Respondent
Mr. J.P. Patra
Special Counsel (OPID)
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 14.11.2024 03. This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
Heard Mr. Devashis Panda, learned counsel for the appellant and Mr. J.P. Patra, learned Special Counsel appearing for the State of Odisha in O.P.I.D. Act matters.
The appellant Shiba Prasad Singh has filed this appeal under section 13 of the O.P.I.D. Act challenging the order dated 09.07.2024 passed by the learned Presiding Officer, Designated Court under O.P.I.D. Act, Cuttack in C.T. Case No.12 of 2018 in rejecting the petition filed by the appellant under section 239 Cr.P.C. and posting the case for framing of the charge.
Page 1 of 6Mr. Panda, learned counsel for the appellant submitted that no charge has yet been framed.
It appears that earlier the appellant approached this Court in CRLA No.06 of 2023 challenging the order dated 05.12.2022 passed by the learned trial Court in rejecting the petition under section 239 Cr.P.C. to discharge him. This Court vide order dated 24.07.2023 has been pleased to set aside the order of the learned trial Court in rejecting the petition for discharge so far as the offences under section 468 of the Indian Penal Code, sections 4/5/6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and section 138 of the N.I. Act, however directed the learned trial Court to frame charges under section 420/34 of the Indian Penal Code and section 6 of the O.P.I.D. Act.
It appears that the appellant challenged the said order dated 05.12.2022 passed by this Court in the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.10597 of 2023 and vide order dated 01.09.2023, the Hon'ble Supreme Court was not inclined to interfere with the order passed by this Court, however directed that all arguments of the petitioner at the stage of framing of charge are kept open and to that extent, the observations of this Court would not be construed as final or prejudice the petitioners' rights and contentions. Accordingly, the Page 2 of 6 special leave petition was dismissed.
Mr. Panda submitted that the appellant filed a discharge petition in view of the order of the Hon'ble Supreme Court on 18.09.2023 before the learned trial Court taking several grounds with a prayer to discharge him from the case in respect of the offence under section 420/34 of the Indian Penal Code and section 6 of the O.P.I.D. Act.
It appears from the impugned order that the learned trial Court came to the conclusion that neither the appellant turned up physically before the Court to take up hearing on the point of framing of charge in terms of section 240 Cr.P.C. nor the learned counsel on behalf of the petitioners was willing to advance arguments in compliance of the order of the Hon'ble Supreme Court, rather the petition filed under section 239 Cr.P.C. for discharge is a successive one and the same is based on defence plea, which is not maintainable in the eye of law.
Mr. Panda drew the attention of this Court to the impugned order in toto which indicates that the argument was advanced from the side of the appellant on 01.07.2024 and even the learned trial Court has referred to the argument made by the learned counsel for the appellant in some parts of the order. Moreover, in the discharge petition, several grounds have been taken as to why the charges under section 420 of the Page 3 of 6 Indian Penal Code and section 6 of the O.P.I.D. Act should not be framed against the appellant and therefore, in terms of the order of the Hon'ble Supreme Court, it was nonetheless the duty on the part of the learned trial Court to pass reasoned order dealing with the points raised by the learned counsel for the appellant so also as was highlighted in the discharge petition. According to Mr. Panda, the same having not been done, the impugned order is not in consonance with the order passed by the Hon'ble Supreme Court.
Mr. Patra, learned Special Counsel on the other hand urged that since this Court has earlier dealt with the matter and considered all the points raised by the learned counsel for the appellant and also discharged the appellant from some offences and the appellant has become unsuccessful in challenging the order of this Court in the Hon'ble Supreme Court, the subsequent filing of petition under section 239 Cr.P.C. is just to protract the litigation and to delay commencement of the trial and therefore, the learned trial Court was justified in rejecting the petition under section 239 Cr.P.C.
Needless to say that section 239 Cr.P.C. deals with discharge of an accused, which can be done only by the concerned Court after considering the police report and the documents sent with it under section Page 4 of 6 173 Cr.P.C. and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving opportunity of hearing to both the prosecution and the accused and after holding that the charges against the accused to be groundless which means without any basis or foundation. If the Magistrate after considering such materials on record and hearing the prosecution and the accused, is of the view that there are grounds for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame the charge in writing against the accused.
In the case in hand, it was not necessary on the part of the appellant to remain present at the time of consideration of the discharge petition particularly when the learned trial Court had not passed any order that examination of the appellant is necessary and directed him to remain present for such purpose. If the counsel is present and he is ready to assist the Court in the hearing of discharge petition, the Court should have dealt with all the points raised in the grounds of discharge petition as advanced by the learned defence counsel in view of the order passed by the Hon'ble Supreme Court.
Page 5 of 6Therefore, the impugned order cannot be sustained in the eye of law and accordingly, it is hereby set aside and the matter is remanded back to the learned trial Court, which shall fix a date for hearing on discharge petition and after hearing the learned counsel for both the parties, the order shall be passed keeping in view the observation made by the Hon'ble Supreme Court in the order dated 01.09.2023.
It is stated by Mr. Panda, learned counsel for the appellant that the next date is fixed to 27.11.2024.
The appellant shall remain present on that day. If the learned trial Court will have no time to hear the discharge petition on that day, he shall fix another short date and dispose of the petition for discharge application expeditiously. It is made clear that this Court has not expressed any opinion on the merits of discharge petition.
Accordingly, the CRLA is disposed of. Urgent certified copy of this order be granted on proper application.
( S.K. Sahoo) Judge RKM Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Nov-2024 11:23:21 Page 6 of 6