Orissa High Court
Sajjan Kumar Sureka vs State Of Odisha on 19 July, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.1211 of 2023 : (A)
&
CRLA No.1219 of 2023 : (B)
In the matter of Appeals under section 13 of the Odisha
Protection of Interests of Depositors (In Financial Establishments)
Act, 2011 and from an order dated 07.10.2023, passed by the
Presiding Officer, Designated Court under Odisha Protection of
Interests of the Depositors (In Financial Institutions) Act, 2011 in
C.T Case No.15 of 2016.
----
Sajjan Kumar Sureka .... Appellants
( In CRLA No.1211 of 2023)
Mina Agarwal
( In CRLA No.1219 of 2023)
-versus-
State of Odisha
.... Respondent
(In both CRLAs)
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - M/s.Debasnan Das, P.K. Dash,
S. Mohanty & B.B. Sahoo,
(Advocates in CRLA No.1211/2023)
Mr.Devashis Panda,
Mr.Satya Mohanty,
P.K. Dash (Advocates in CRLA
No.1219/2023)
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For Respondent - Mr.Bibekananda Bhuyan &
Mr.J.P. Patra (Advocates for OPID
in both CRLAs)
CORAM:
MR. JUSTICE D.DASH
Date of Judgment : 19.07.2024
D.Dash,J. Since the respective Appellants of the Appeals as at 'A' and 'B', by filing these Appeals under section 13 of the Odisha Protection of Interests of the Depositors (In Financial Establishments) Act, 2011 (for short, "the OPID Act") have challenged the order dated 07.10.2023, passed by the learned Presiding Officer, Designated Court under OPID Act in C.T Case No.15 of 2016, arising out of EOW, Bhubaneswar P.S. Case No.17 of 2016, rejecting the applications under section 239 of the Code of Criminal Procedure, 1973 (in short, 'the Code') for their discharge; Appeals were heard together for their disposal by the common judgment.
2. Facts necessary for the purpose are as follows: -
One Sudarsan Sahoo lodged the First Information Report (FIR) stating therein that he and others had purchased land to the extent of Ac1.91 decimal at Mouza Mahiapada-II from M/s. Seven Hill Estate Private Limited (for short, "SHEPL") in between the year 2003 to 2006. It is further stated that the Informant and others purchased different parcels of land by separate registered Page 2 of 23 sale deeds executed by N. Kishore Reddy and Kishore Prasad Panda as the Power of Attorney Holders of the SHEPL, a Company registered under Indian Companies Act, 1956. The Informant and others, being the purchasers of the landed properties, after their purchase, could not mutate those lands. It is stated by the Informant and others that the vendor-Company (SHEPL) though had assured that they would facilitate the mutation of the land sold in favour of the Informant and other purchasers, they did not come forward to do so. Sometime later, the Informant came to know that the very property which they had purchased has again been sold to a Company, namely, Lingaraj Infrastructure Private Limited (for short, 'LIPL') by the erstwhile owner of SHEPL through Power of Attorney Holder, namely, Anama Sahoo in whose favour, the deed of Power of Attorney had been executed by one M.S. Sirinivas, the Managing Director of SHEPL on behalf of the SHEPL, the original owner of the landed property.
It is alleged that that the Informant and others have been cheated by that M.S. Srinivas, the Managing Director of SHEPL in connivance with these Appellants who are the Directors of the Company-LIPL having purchased the very same property subsequently and thereby have defrauded them by resorting to fraudulent means.
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In the FIR, it would be important to note that insofar as the sale of the landed property made by SHEPL in favour of LIPL, it is specifically stated that the same was fraudulently made by SHEPL.
3. These Appellants are the two Directors of the LIPL and more particularly, the Appellant of the Appeal as at 'B', namely, Mina Agarwal is a party to the said sale deed executed by SHEPL through its power of attorney holder, namely, Anama Sahoo.
4. Basing upon the FIR containing the facts as above noted, case being registered, investigation was taken up.
On completion of investigation on 24.01.2017, Final Form was submitted placing these Appellants and three others, being arraigned as the accused persons to face the trial for commission of offences under section 465/467/468/471/420/406/120-B of the Indian Penal Code, 1860 (for short, 'the IPC') and section 6 of the OPID Act.
5. The Appellants filed an application under section-239 of the Code for their discharge. That application has been rejected by order dated 07.10.2023, which has been impugned in these Appeals.
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6. At this juncture, some developments concerning the land need also be stated are required to be placed for proper appreciation.
The SHEPL through its Power of Attorney holder, Anama Sahoo, having sold the land under plot no.283 measuring Ac.1.91 decimals to LIPL and other plots measuring Ac.6.71 decimals which had earlier been sold to the Informant and others in between the year 2003 to 2006 and other plots of land measuring Ac. 6.71 decimals had put the LIPL in possession of the land which were sold. The Tahasildar, Pipili, being moved by the LIPL, has allowed the Mutation of the land purchased by the LIPL in favour of LIPL by order in Mutation Case No.3225 of 2011. Pursuant to the said order, the Record of Right has accordingly been corrected and LIPL has been substituted as the recorded owner of the said land under plot no.283 measuring Ac.1.91 decimals in place of SHEPL. The Tahasildar has passed the order on 06.01.2012.
The Informant and others came to file Mutation Cases in the year 2014 after having purchased the land way back, in between the year 2003 to 2006. The Mutation Cases were numbered before the Tahasildar, Pipili as Misc. Case No.3666 of 2014 and 366 of 2014. The sale deeds executed by SHEPL through its Power of Page 5 of 23 Attorney Holder, N. Kishore Reddy and Krushna Chandra Panda were projected as the basis for such claim of Mutation of the land in favour of the respective purchasers including the Informant. The Tahasildar rejected the said Mutation Applications holding that as the sale deeds executed in favour of the Informant and others are null and void, being in contravention of the provision of section 34 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the OCH & PFL Act), those sale deeds cannot be legally accepted as the basis in support of the prayer for Mutation; in other words, that since by those sale deeds, it is not permissible to say that prima facie title in respect of the land covered thereunder have been transferred to the hands of the purchasers including the Informant. This order was passed by the Tahasildar, Pipili on 25.05.2015.
Thereafter, on 04.06.2015, some of the purchasers of the land from SHEPL in between the year 2003 to 2006, lodged an FIR at Pipili Police Station alleging therein that the sale deed dated 31.03.2009 executed by SHEPL through its Power of Attorney Holder, Anama Sahoo in favour of LIPL is forged and that the said sale deed has been executed by SHEPL in connivance with LIPL fraudulently in order to dispossess the earlier purchasers from the land which they had purchased from the SHEPL with a Page 6 of 23 view to deprive them of their purchased property. That case having been investigated, Final Form was submitted that no case of cheating was made out and the dispute is civil in nature. The matter then rested at that stage.
7. In that very year 2015, the Company LIPL having come to know that SHEPL had previously sold the land to the Informant and others which they have later on sold to LIPL; filed application before the Collector, Puri for declaration that all those prior sale deeds are null and void having come into being in contravention of the provisions contained in section OCH & PFL Act. The Collector, Puri by order dated 03.09.2015 passed in Consolidation Misc. Case No.85 of 2015 has declared all those sale deeds standing in favour of the Informant and others as void and illegal. The above order of the Collector was challenged by sixteen (16) numbers of purchasers out of the total seventeen (17) before this Court invoking the jurisdiction under Articles 226 and 227 of the Constitution of India, which was numbered as WP(C) No.16677/2016. That course being adopted; thereafter again on 28.09.2016, the present FIR was lodged at EOW Police Station, Bhubaneswar which has given rise to the case at hand. As already stated, the allegation insofar as the LIPL is concerned is to the effect that the SHEPL acting in connivance with the Directors of LIPL had sold the very same property which were sold to the Page 7 of 23 Informant and others in order to deprive them of their lawfully purchased property. Investigation being made, Final Form was submitted on 24.01.2017.
8. When that stood the position; on 16.06.2017, relinquishment deeds have been executed by the Informant and 17 other prior purchasers of the landed property, in respect of Ac.0.046 decimals of land out of Ac.1.91 decimals under Khata No.374, plot no.283 stating therein that LIPL shall hold and possess the property as the lawful owner and title holder. The Informant and other purchasers relinquished whatever interest that they had derived over the land in question by virtue of their sale deeds. This relinquishment was made on receipt of consideration of Rs.1,02,566/-. After this, the prior purchasers of the landed property in question who had filed W.P.(C) No.16677 of 2016 challenging the order of the Collector, declaring their sale deeds void, withdrew the writ petition which accordingly stood disposed of as withdrawn on 18.12.2017.
9. The challenge in this Appeal is to the order dated 17.10.2023 by which the Trial Court has rejected the application under section 239 of the Cr.P.C for discharge of the Appellants, who are the Directors of LIPL.
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10. Heard Mr. D. Panda and Mr. Debasnan Das, learned Counsels for the Appellants and Mr. B. Bhuyan, learned Counsel for the State appearing in OPID Cases.
11. Perused the record including the order dated 07.10.2023, which has been impugned in these Appeals.
The specific case of the prosecution against these Appellants, who are the two Directors of the Company-LIPL is that having prior knowledge of the earlier sales of land made by M.S. Srinivas, M.D. of SHEPL (accused) to its depositors, being conspired with M.S. Srinivas and Anam Charan Sahoo, the Power of Attorney Holder of SHEPL from the year 2008 have deliberately purchased the same land, sold to the Informant and other purchasers for their personal gain.
It is further stated that Anama Sahoo having knowledge of earlier sales disclosed these factum of sales to these Appellants, who are the Directors of LIPL in their meeting. Then it is said that Anama Sahoo, after being appointed as the Power of Attorney Holder of SHEPL, intentionally went ahead with the transactions with the LIPL represented by the Appellant of the Appeal as at 'B' being its Director by receiving huge cash for personal gain. But then it is said that these Appellants in a cool and calculated manner conspired with Anama Sahoo and M.S. Srinivas (accused Page 9 of 23 persons) for which the Informant and other depositors were deprived of their property.
12. It was submitted by the learned Counsels for the Appellants that the Company LIPL came to be incorporated towards the end of the year 2006 and the transactions standing in favour of the Informant and others made by SHEPL are in between the year 2003 to 2006. It was further submitted that the allegations are that the Company, LIPL having purchased the property in the year 2009 have cheated the Informant and others by entering into a conspiracy with the SHEPL and the persons associated with the said Company.
The contention of the Appellants was that it is rather the LIPL, whose Directors are the Appellants have been cheated by the SHEPL since their purchase is admittedly much later, that too after lapse of few years since there is no material on record to even suggest that the Company-LIPL more particularly, these two Directors (Appellants) had any knowledge about the prior sales as by the time of their purchase, land records were standing in the name of SHEPL.
It was next contended that the allegations as laid even if are accepted in toto, those cannot constitute as sufficient ground to proceed against these Appellants (accused persons) for their trial Page 10 of 23 for the said offences as according to them those allegations concerning the offences under section 467/468/471/420 of the IPC and section 6 of the OPID Act cannot run against these Appellants, who have come into picture much later as purchasers, being the Directors of the Company-LIPL. They submitted that when it is said that these Appellants have conspired with the SHEPL and their associates in committing the offences under section 467/468/471/420 of the IPC and under section 6 of the OPID Act so as to be arraigned under section 120- B of the IPC, there is no such material to even remotely connect them with the same, as it is not shown that these Appellants being the Directors of LIPL had prior knowledge about the earlier transactions made between the SHEPL on one hand and the Informant and others on the other or that at some other point of time, they arrived at an agreement to do so and pursuant to that agreement, they obtained the sale deeds in favour of LIPL or even that it was their planning even before the sale of land made to the Informant and others.
According to them, it is not the prosecution case that this Company-LIPL whose Directors are these Appellants had ever taken any deposit from those persons nor had promised them to give land in return and that they were in the picture at any time either before the execution of the sale deeds by SHEPL in favour Page 11 of 23 of the Informant and others or even thereafter till the purchase by LIPL. It was submitted that the dispute is civil in nature and the litigations are unnecessarily stretching over quite some time, post the lodging of FIR even after the first round of investigation and its closer.
It was next submitted that the LIPL having bonafidely purchased the land for valuable consideration without the knowledge/notice of prior transactions, the complicity of these Appellants as the Directors of LIPL cannot be so interfered unless it is shown from the materials on record that they were aware of the earlier sales and had notice of the same and had intentionally purchased the property so as to defraud the Informant and others and accordingly had agreed with the SHEPL for obtaining the subsequent documents dishonestly or fraudulently either for consideration or no consideration in order to cheat the Informant and others. They also submitted that during the period the LIPL in order to avoid the dispute has compensated some of those purchasers, who have relinquished their right over the property if any and this conduct of the Company LIPL rather exhibit their bonafide conduct that they had no involvement in the matter. They submitted that had it been the intention of the LIPL in conspiracy with SHEPL to cheat the Informant and others, they would not have taken further financial burden. It was further Page 12 of 23 submitted that the prayer of the Company LIPL for Mutation of the land and conversion of Kisam have been allowed when the prayer of the Informant and others for Mutation have been disallowed. It was further submitted that at the same time, the Competent Authority when has declared the sale deeds standing in favour of the Informant and others as void being in contravention of the provisions of section 34 of the OCH & PFL Act, that order having been challenged in Writ Petition No.16677 of 2016 that has also been withdrawn and thus the order of the Competent Authority declaring the sale deeds in favour of Informant and others has attained finality for which there is no sufficient ground to proceed with the trial against these two Directors of LIPL.
They submitted that the Informant and others have unnecessarily arraigned these Appellants because of their status as the Directors of LIPL without any rhyme and reason simply taking a cue from fact that LIPL has subsequently purchased the property in question when from all the surrounding circumstances, it is clear that they are the bonafide purchaser for value without notice of past transactions. It was further submitted that when the sale deeds executed by SHEPL in favour of the Informant and others are even prior to the incorporation of the Company-LIPL and as there is no material on record to show Page 13 of 23 that the LIPL has purchased the property being well aware or having the notice of the fact that those were earlier sold by SHEPL to the Informant and others, by no stretch of imagination it can be inferred that there was a conspiracy between the SHEPL and LIPL to cheat the Informant and others and deprive them of their purchased property more so, when those transactions have been declared void by the Competent Authority, which has attained finality which has put an end in the matter as the Informant and others no more can claim their right over the property in question by their sale deeds which are having no value in the eye of law.
They submitted that the dispute even if any, at present exists is civil in nature and the LIPL's claim as that of a bonafide purchaser of LIPL is protected under section 41 of the T.P Act. It was thus submitted that the Trial Court with the available materials on record is not right in refusing to discharge these Appellants, who being the Directors of LIPL have been arraigned as the accused persons.
13. Learned Counsel for the State, placing the scope of consideration and the matters required to be looked into at the time of framing the charge, submitted that with the obtained facts and circumstances, no case for discharge of the Appellants is Page 14 of 23 made out. Thus it is stated that the Trial Court is right in passing the order as the grounds raised or the case projected by the Appellants for their discharge are not permissible to be considered at this stage although the same would stand for due consideration in the trial basing upon the evidence that would be piloted. He submitted that the lack of knowledge of the Appellants about the previous transactions between the SHEPL and the Informant and others would be decided basing upon the evidence during the trial keeping in view the evidence that would come in. He submitted that when the Informant and others were the prior purchasers and the Company that is LIPL whose Directors are the Appellants had purchased the property subsequently, the normal inference is that said transaction between SHEPL and LIPL was with a view to defraud the earlier purchasers and, therefore, at this stage, basing upon the material collected in course of investigation, it would not be permissible to say that LIPL and its Directors had not conspired with the SHEPL. With the above, it was submitted that the impugned order is not warrant interference. Thus, he contended that the Appeals being devoid of merit are liable to be dismissed.
14. In order to address the above rival submission in judging the legality and propriety of the impugned order, it is to be kept in mind that this Court in seisin of an Appeal, which has been Page 15 of 23 filed by the two Appellants (accused persons) as the Directors of LIPL, the subsequent purchaser of the property in question are raising the question of sustainability of the order whereby the Trial Court has refused to discharge the Appellants in putting an end to the Criminal Trial insofar as they are concerned.
At this juncture, before proceeding to dwell upon the contentions raised by the learned Counsels for the parties, it would be apt to take note of the settled principles of law in the matter of consideration of applications filed by the Appellants seeking their discharge in the criminal case.
15. The principles of law are too well settled that while answering the question of framing the charges, a duty is cast upon the Court to consider the record of the case and documents submitted therein. In that exercise, if the decision is to discharge the accused under section 227 of the Code of Criminal Procedure (in short, 'the Code'), the Court is called upon to give a definite opinion for said discharge. Meaning thereby, that if the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused after recording the reasons for doing so. The language of section 227 of the Code makes it clear that the Court cannot proceed merely on Page 16 of 23 presumption and, therefore, the word 'considers' finds place therein.
16. The next parameter is that if after considering the record of the case and the documents submitted therewith and hearing in that behalf, the Court exercises the power to frame charges against the accused under section 228 of the Code, said view is tentative. Meaning thereby, that if the Court is of the opinion that there is ground for even presuming that the accused has committed an offence, he shall frame the charge in writing.
17. It has been held in case of "State of Bihar Vrs. Ramesh Singh"; AIR 1977 SC 2018 that at this initial stage, truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged upon their critical analysis. It is not obligatory at the stage to consider in any detail and weigh in a sensitive balance whether the facts if proved would be incompatible with the innocence of the accused or not.
18. In case of "Amit Kapoor Vrs. Ramesh Chander"; (2012) 9 SCC 460, it has been held that at the stage of framing the charges, the Court is not concerned with the proof, when upon careful perusal of the materials placed, there arises strong suspicion in the mind of the Court that the accused has committed the offence, which if put to trial could prove him guilty, the Court would be justified Page 17 of 23 in proceeding with the trial by framing the charge. Here, however, the rule of caution comes into play that mere suspicion is not enough, and the suspicion founded upon the materials on record must be of strength persuading the Court to form a prima facie opinion justifying the trial as those when proved may lead to a result in favour of the prosecution.
19. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court for the purpose is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Ref.: - "State of M.P. Vrs. Mohanlal Soni"; (2000) 6 SCC 338.
20. In the recent case in "M.E. Shivalinga Murthy Vrs. Central Bureau of Investigation, Bengaluru"; (2020) 2 SCC 768, the Hon'ble Apex Court referring to the earlier decisions including the one in case of "P. Vijayan Vrs. State of Kerala and Another"; (2012) 2 SCC 398 have discerned the following principles: -
"(i) 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;
(ii) the Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution;
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(iii) 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;
(iv) 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;
(v) it is open to the accused to explain away the materials giving rise to the grave suspicion;
(vi) the Court has to consider the board 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;
(vii) 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;
and
(viii) 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."
21. The defence version not based upon and deriving no support from the materials or documents placed by the prosecution is not to be looked into at the stage when the accused seeks discharge. The 'record of the case' used in section 227 of the Code is to be understood as the documents and articles, if any, produced by the prosecution.
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22. In the backdrop of above, this Court is now called upon to examine the legality and propriety of the impugned order.
23. Adverting to the facts of the case standing to be taken into account for the present purpose of ascertaining as to if sufficient ground for proceeding with the trial as against these Appellants arraigned as accused persons being the Directors of LIPL; it be stated that admittedly the SHEPL had sold the lands to the Informant and others in piecemeal in between the year 2003 to 2006. Despite such sale, the Informant and others being the purchasers as such had not mutated the respective purchased lands in their names. It is said that the mutation could not be carried out as the persons associate with the vendor-SHEPL did not come forward to assist them in the matter. However, nothing is stated nor shown that from the side of the Informant and others that being the purchasers there was any move in that regard from their side by filing applications from all the long period. This Company LIPL whose Directors are the Appellants, came to be incorporated on 21.11.2006 by which time almost all the sale deeds in favour of the Informant and others had been executed. This Company-LIPL of which these Appellants are the Directors, then purchased the property only on 31.03.2009. It is not stated that the transaction between SHEPL and this LIPL is a bogus transaction or is nominal and sham. There is no material on Page 20 of 23 record to show or even remotely suggestive of the fact that there was no payment of consideration as indicated in the sale deed in favour of LIPL nor it is stated that the LIPL having paid the money that was adjusted towards any other transaction with the SHEPL. But it is the prosecution case that accused Anama Sahu being appointed as the Power of Attorney of SHEPL went ahead with the transaction with LIPL by receiving huge cash. The SHEPL was the recorded owner of the land in question as on the date of purchase of the land by the LIPL. The LIPL having purchased the land for valuable consideration has obtained the order of mutation of the same in Mutation Case No.3225 of 2011 and the land record has been accordingly corrected and stands as such. At the same time, the prayers for mutation of the land as made by the Informant and others which was subsequent to the order of mutation in favour of LIPL have been rejected. It being said that these Appellants were aware of the earlier transactions; the prosecution case is not that they or any one of LIPL were in anyway in picture when the Informant and others purchased the property. But it is simply said that before the purchase by LIPL, they were apprised of prior transactions and that is without any material standing to support. When it is next said that accused Anama Sahoo, the GPA holder of SHEPL, had disclosed before them about such sales that is not admissible against these Page 21 of 23 Appellants, who are the Directors of LIPL. It being further said that the LIPL purchased the property by paying huge sum to SHEPL, the same runs against the case of conspiracy so as to prima facie take a view that these Appellants were parties to that.
24. That apart, the Competent Authority under the OCH & PFL Act, has declared the sale deeds in favour of the Informant and others as void being in contravention of provision of section 34 of the OCH & PFL Act. That order having been challenged before the High Court in carrying a writ petition numbered as WP(C) No.16677 of 2016, the same has finally been disposed of as withdrawn as would be evident from Annexure-8 which cannot be refused to be taken note of at this stage since that the order declaring those sale deeds as void has now attained finality.
Thus at present, the indisputable factual position stands that the sale deeds upon which the Informant and 17others claim the right over the property in question which has been purchased by the LIPL, subsequent to the purchase of the Informant and 17 others and based on that they allege that the Company LIPL and its Directors, confining to the present Appellants had entered into a conspiracy with the Company, SHEPL and its Managing Directors and others in order to commit the offences under section 467/468/471/420 of the IPC and section 6 of the OPID Act Page 22 of 23 and thus have committed the offence under section 120-B of the IPC are non-existent in the eye of law.
25. The facts and circumstances emanating from the materials on record being taken on their face value, this Court confining the examination within the parameters laid down as per the settled position as held in the decisions (supra), is not in a position to prima facie consider those as sufficient ground for proceeding against these Appellants (accused persons) in placing them to face the trial for commission of the offences under section 467/468/ 471/420/406/120-B of the IPC and section 6 of the OPID Act.
26. For all the aforesaid discussion and reasons, the Appeals are thus allowed. The impugned order dated 07.10.2023, passed by the Presiding Officer, Designated Court under OPID Act in C.T Case No.15 of 2016 insofar as these Appellants (accused persons) are concerned, is hereby set aside. Consequently, these Appellants (accused persons) are discharged from the said case.
(D. Dash), Judge.
Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Gitanjali Date: 24-Jul-2024 16:18:45 Page 23 of 23