The Orissa High Court has held that it is mandatory in terms of Section 245 Cr.P.C. to disclose reasons even while rejecting the petition for discharge and not only when it is accepted.

The Court was considering a Criminal Miscellaneous Petition against an order rejecting the Petitioner's application for discharge.

The single bench of Justice Sashikanta Mishra held, "Though it has been held that the Court is not required to record reasons for framing charge but it is the settled position of law that rejection of a discharge petition and framing of charge are not one and the same thing. It is only after an application for discharge is dealt with that the question of framing charge arises. The language used in Section 245, “and record his reasons for so doing” cannot refer only to a case where the application for discharge is allowed and not when the same is rejected."

The Petitioner was represented by Advocate P.K.Mishra while the Respondent was represented by Additional Government Advocate S. Behera.

Facts of the Case

The Opposite Party No.2 filed an FIR alleging therein that she had set up an industry by availing loan from the OSFC. In 2021, the industry was illegally seized by OSFC and auctioned in favour of the Petitioner in 2022. The Opposite Party No.2 challenged the action of the OSFC by filing a Writ Application. The Court granted stay on the order of transfer. While the matter stood thus, the Petitioner, despite being aware of the order of stay, wrongfully trespassed into the factory premises in 2004, dismantled the unit by forcibly breaking the front gate and doors and removed the iron truss, AC & GI Sheets of the main gate and also the installed machineries approximately amounting to Rs.12 lakhs. Following this, an FIR, was registered under Sections 447, 448, 427, 379, 294 and 506 of the IPC and investigation was taken up. Upon completion of investigation, final report was submitted in 2006. After a lapse of 6 years, the Opposite Party No.2 filed a protest petition.

After conducting an inquiry as contemplated under Section 202 of Cr.P.C., the Court took cognizance of the offences and upon appearance after receipt of summons, the Petitioner filed an application for discharge on the ground that no prima facie case is made out which was, however, rejected in 2018.

Counsel for the Petitioner argued that the impugned order is unsustainable in the eyes of law as it does not disclose the reasons for rejecting the Petition for discharge. On the other hand, the Additional Government Advocate submitted that there being a prima facie case available against the petitioner, the Court has rightly refused to discharge him from the case.

Reasoning By Court

The Court noted that the Application was rejected on the ground that the evidence of the witnesses, FIR, Chargesheet and adjoining documents prima facie attracted the alleged offences and that the allegations made by the prosecution are not groundless but the grounds raised by the Petitioner to make his case were not considered.

"Not a whisper has been made as to why the grounds urged by the petitioner to discharge him from the case were considered unacceptable. In fact, copy of the discharge petition available in the case record shows that the petitioner had raised specific grounds and tried to justify the same by giving detailed reasons. Whether the same would ultimately be acceptable or not is a thing that can be decided only if the same is considered. But without even considering the grounds raised, it cannot be said that there are no grounds to discharge the petition," the Court observed.

The Court concluded that reasons should be mandatorily be provided while rejecting discharge petition in terms of Section 245 Cr.P.C.

Cause Title: Shyam Sundar Agrawalla vs. State of Odisha & Another

Appearances

Petitioner- Advocate P.K. Mishra

Respondent- Additional Government Advocate S. Behera, Advocate S.C.Mishra,

Click here to read/ download Order







Orissa High CourtJustice Sashikanta Mishra

Sheetal Joon