Orissa High Court
M/S. Rashmi Cement Limited And Another vs State Of Odisha (Vigilance) ……. … on 13 February, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4732 of 2023
(In the matter of an application under Section 482 of the Code of Criminal
Procedure, 1973)
M/s. Rashmi Cement Limited and another ....... Petitioners
-Versus-
State of Odisha (Vigilance) ....... Opp. Party
For the Petitioners : Mr. Subir Palit, Senior Advocate
Mr. Alok Ranjan Mohanty, Advocate
Mr. Santunu Ghosh, Advocate
For the Opp. Party : Mr. Niranjan Moharana, Additional
Standing Counsel (Vigilance Department)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 03.12.2024 :: Date of Judgment: 13.02.2025
S.S. Mishra, J. This petitioners under Section 482 of the Code of
Criminal Procedure, 1973 has been preferred seeking quashing of V.G.R.
Case No.05 of 2014 corresponding to Balasore Vigilance P.S. Case
No.09 of 2014 pending in the Court of the learned Special Judge,
Vigilance, Keonjhar, the order of cognizance dated 08.02.2019 therein
and the consequential proceedings arising therefrom.
2. The allegation against the petitioners in the F.I.R. is that the
petitioner No.1-Company is engaged in the business of manufacture of
sponge iron, cement and other allied steel products in West Bengal. The
petitioner No.1, Company therefore has been procuring minerals
regularly from the State of Odisha for its manufacturing activities. In this
regard, the present petitioners are required to obtain licenses from the
competent authority of the area under whose jurisdiction, the materials
are sought to be purchased, i.e. the Deputy Director of Mines, Joda
Circle, Keonjhar, Odisha ( for short ―DDM, Joda‖). On the basis of the
said licenses, the Petitioner No.1, the Company has been procuring,
storing and transporting minerals from various lessees and registered
traders within the Joda Circle.
3. During the course of verification of the petitioners Company's
license by the State Level Enforcement Squad (SLES) during the period
18.06.2012
-17.07.2012, it was found that a license granted for
procurement and transport of iron ore for self- consumption was diverted
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an export. Furthermore, it was also revealed that an excess quantity of
iron ore was procured than what was legally sanctioned. In light of the
same, a show cause notice was issued by the Deputy Director of Mines
on 29.08.2012, and the licenses dated 18.02.2012 and 29.05.2012 were
suspended till further orders. A response was filed by the petitioners
Company. They also approached this Court by filing W.P.(C) No. 17942
of 2012, which was disposed of by this Court vide order dated
26.09.2012 directing the DDM, Joda Circle to consider the reply and
dispose of the matter within two weeks. Vide office order dated
13.03.2013, the DDM, Joda disposed of the matter by a speaking order.
4. The Petitioners Company again approached this Court by filing
second Writ Petition being W.P.(C) No.6836 of 2013 seeking quashing
of the order dated 13.03.2013. Vide order dated 18.07.2013, the same
was quashed. The matter went up to the Hon’ble Supreme Court as the
State preferred a Special Leave Petition being SLP( C) No.813 of 2014,
but the same was withdrawn at the time of hearing with leave to
approach this Court. Soon thereafter, the F.I.R. dated 19.02.2014 was
registered against the present petitioners and one other co-accused (who
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has since deceased) which culminated in the present VGR Case No.05 of
2014 corresponding to Balasore Vigilance P.S. Case No.09 of 2014.
Charge-sheet was filed on 15.12.2018 and the order taking cognizance of
the offences under Sections 13(2)/13(1)(d) of the P.C. Act read with
Section 21(1)/23 of MMDR Act and Sections 120-B/409/420 of I.P.C.
and issuance of summons was passed by the learned trial Court on
08.02.2019.
5. Aggrieved by the same, the present petition has been preferred. As
the facts leading to the instant petition have been laid down, this Court
shall endeavour to summarize the contentions of the parties and the
broad grounds that have been raised to seek the exercise of this Court’s
plenary jurisdiction available under Section 482 of Cr.P.C.
6. Heard Mr. Subir Palit, learned Senior Counsel for the petitioners
and Mr. Niranjan Moharana, learned Additional Standing Counsel for
the Vigilance Department.
7. Mr. Palit, learned Senior Counsel for the petitioners placed
reliance on following decisions of the Hon’ble Apex Court to contend
that the impugned order of cognizance reflects total non-application of
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mind by the trial Court. Reliance in this regard has been placed on a
series of decisions of the Hon’ble Supreme Court in the case of
Devendra v. State of Uttar Pradesh, reported in (2009) 7 SCC
495; Sunil Bharti Mittal v. Central Bureau of Investigation, reported in
(2015) 4 SCC 609; Bhagwant Singh v. Commissioner of Police,
reported in 1985 (2) SCC 537 and State of Punjab v. Bhag Singh,
reported in (2004) 1 SCC 547.
8. It is submitted by Mr. Palit, learned Senior Counsel for the
petitioners that while passing the order taking cognizance, the Court has
to apply its judicial mind. The order is liable to be set aside if no reason
is given therein by coming to the conclusion that prima facie case against
the accused is made out though the order need not contain detailed
reasons. The discretion must be judicially exercised. A person ought not
to be dragged into Court merely because charge-sheet has been filed. If a
prima facie case has been made out, the Magistrate ought to issue
process after recording reasons. There has to be application of mind as to
whether the allegation in the complaint when considered along with
statements recorded or enquiry conducted thereon would constitute
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violation of law so as to call a person to appear before the Criminal
Court. It is not mechanical process or matter of course.
9. Per contra, Mr. Moharana, learned Additional Standing Counsel
for the Vigilance Department submitted that there is no illegality in the
order passed by the learned trial Court. It is submitted that taking
cognizance is still an intermediate stage. The charge-sheet of the
investigating agency in the present case discloses involvement of the
accused. He has relied upon the judgments of the Hon’ble Supreme
Court in the case of Hardeep Singh v. State of Punjab reported in
(2014) 3 SCC 92 and in the case of Dy. Chief Controller of Imports &
Exports v. Roshan Lal Agarwal, reported in (2003) 4 SCC 139.
10. It is contended that time and again it has been held by the Hon’ble
Apex Court that a summoning order under Section 204 of Cr.P.C.
requires no explicit reasoning to be stated because it is imperative that
the Magistrate must have taken notice of the accusations and applied his
mind to the allegations made in the police report and the materials filed
therewith.
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11. Having heard the parties and perused the materials available on
record. This Court has to determine as to whether the learned trial
Court’s order taking cognizance appears to be unreasoned and passed
with non-application of mind, which warrants interference by this Court.
12. In Chief Enforcement Officer vrs. Videocon International Ltd.
reported in (2008) 2 SCC 492, the expression ―cognizance‖ was
explained by this Court as ―it merely means ‗become aware of’ and
when used with reference to a Court or a Judge, it connotes ‗to take
notice judicially’. It indicates the point when a Court or a Magistrate
takes judicial notice of an offence with a view to initiating proceedings
in respect of such offence said to have been committed by someone.‖ It
is entirely a different thing from initiation of proceedings; rather it is the
condition precedent to the initiation of proceedings by the Magistrate or
the Judge. Cognizance is taken of offences and not of persons. Under
Section 190 of the Code, it is the application of judicial mind to the
averments in the complaint that constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there is sufficient ground for
proceeding and not whether there is sufficient ground for conviction.
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Whether the evidence is adequate for supporting the conviction can be
determined only at the trial and not at the stage of enquiry or cognizance.
If there is sufficient ground for proceeding then the Magistrate is
empowered for issuance of process under Section 204 of the Code.
13. A ―summons‖ furthermore, is a process issued by a court calling
upon a person to appear before a Magistrate. It is used for the purpose of
notifying an individual of his legal obligation to appear before the
Magistrate as a response to violation of law. A person who is summoned
is legally bound to appear before the court on the given date and time.
Willful disobedience of a summons order is liable to be punished under
Section 174 of I.P.C apart from being a ground for contempt of court.
14. In this context, it is relevant to extract Sections 190 and 204 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as ―the Code‖)
which read as under:-
“190. Cognizance of offences by Magistrates.–(1)
Subject to the provisions of this Chapter, any Magistrate
of the First Class, and any Magistrate of the Second
Class specially empowered in this behalf under sub-
section (2), may take cognizance of any offence–
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(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the Second Class to take cognizance under
sub-section (1) of such offences as are within his
competence to inquire into or try.
*** *** *** ***
204. Issue of process.–(1) If in the opinion of a
Magistrate taking cognizance of an offence there is
sufficient ground for proceeding, and the case appears to
be–
(a) a summons case, he shall issue his summons
for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if
he thinks fit, a summons, for causing the accused
to be brought or to appear at a certain time
before such Magistrate or (if he has no
jurisdiction himself) some other Magistrate
having jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the
prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-
section (1) shall be accompanied by a copy of such
complaint.
(4) When by any law for the time being in force any process
fees or other fees are payable, no process shall be issued until
the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
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(5) Nothing in this section shall be deemed to affect the
provisions of Section 87.”
15. Section 204 of the Code does not mandate the Magistrate to
explicitly state the reasons for issuance of summons. It clearly states that
if in the opinion of a Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, then the summons may be issued. This
section mandates the Magistrate to form an opinion as to whether there
exists a sufficient ground for summons to be issued but it is nowhere
mentioned in the section that the explicit narration of the same is
mandatory, meaning thereby that it is not a prerequisite for deciding the
validity of the summons issued.
16. In Kanti Bhadra Shah v. State of West Bengal reported in (2000)
1 SCC 722, the following passage held by the Hon’ble Supreme Court
will be apposite in this context:-
“12. If there is no legal requirement that the trial court
should write an order showing the reasons for framing
a charge, why should the already burdened trial courts
be further burdened with such an extra work. The time
has reached to adopt all possible measures to expedite
the court procedures and to chalk out measures to
avert all roadblocks causing avoidable delays. If a
Magistrate is to write detailed orders at differentPage 10 of 28
stages merely because the counsel would address
arguments at all stages, the snail-paced progress of
proceedings in trial courts would further be slowed
down. We are coming across interlocutory orders of
Magistrates and Sessions Judges running into several
pages. We can appreciate if such a detailed order has
been passed for culminating the proceedings before
them. But it is quite unnecessary to write detailed
orders at other stages, such as issuing process,
remanding the accused to custody, framing of charges,
passing over to next stages in the trial.”
17. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors.
reported in (1976) 3 SCC 736, the Hon’ble Apex Court held that it is not
the province of the Magistrate to enter into a detailed discussion on the
merits or demerits of the case. It was further held that in deciding
whether a process should be issued, the Magistrate can take into
consideration the probabilities appearing on the face of the complaint or
in the evidence led by the complainant in support of the allegations. The
Magistrate has been given an undoubted discretion in the matter and the
discretion has to be judicially exercised by him. It was further held that:
“5. … Once the Magistrate has exercised his
discretion it is not for the High Court, or even this
Court, to substitute its own discretion for that of the
Magistrate or to examine the case on merits with a
view to find out whether or not the allegations in. thePage 11 of 28
complaint, if proved, would ultimately end in
conviction of the accused…”
18. Furthermore, in Dy. Chief Controller of Imports & Exports
v. Roshanlal Agarwal reported in (2003) 4 SCC 139, the Hon’ble
Supreme Court, in paragraph-9, has held as under: –
“9. In determining the question whether any process is to
be issued or not, what the Magistrate has to be satisfied is
whether there is sufficient ground for proceeding and not,
whether there is sufficient ground for conviction. Whether
the evidence is adequate for supporting the conviction, can
be determined only at the trial and not at the stage of
inquiry. At the stage of issuing the process to the accused,
the Magistrate is not required to record reasons. This
question was considered recently in U.P. Pollution Control
Board v. Mohan Meakins Ltd. [(2000) 3 SCC 745] and
after noticing the law laid down in Kanti Bhadra
Shah v. State of W.B. [(2000) 1 SCC 722: 2000 SCC (Cri)
303] it was held as follows: (U.P. Pollution case [(2000) 3
SCC 745], SCC p. 749, para 6)„6. The legislature has stressed the need to record reasons
in certain situations such as dismissal of a complaint
without issuing process. There is no such legal requirement
imposed on a Magistrate for passing detailed order while
issuing summons. The process issued to accused cannot be
quashed merely on the ground that the Magistrate had not
passed a speaking order.”
Page 12 of 28
19. In U.P. Pollution Control Board v. Bhupendra Kumar Modi
reported in (2009) 2 SCC 147, the Hon’ble Supreme Court, held as
under:
“It is settled legal position that at the stage of issuing
process, the Magistrate is mainly concerned with the
allegations made in the complaint or the evidence led in
support of the same and he is only to be prima facie
satisfied whether there are sufficient grounds for
proceeding against the accused.”
20. This being the settled legal position, the order passed by the
Magistrate could not be faulted with only on the ground that the
summoning order was not a reasoned one.
21. It is, therefore, very well settled that at the stage of issuing
process, the Magistrate is mainly concerned with the allegations made in
the complaint or the evidence led in support of the same and the
Magistrate is only to be satisfied that there are sufficient grounds for
proceeding against the accused. It is fairly well settled that when issuing
summons, the Magistrate need not explicitly state the reasons for his
satisfaction that there are sufficient grounds for proceeding against the
accused. Reliance in this regard can be placed on the Hon’ble Supreme
Page 13 of 28
Court’s judgment in the case of Bhushan Kumar v. State (NCT of
Delhi) reported in (2012) 5 SCC 424, wherein it was held as under :
“11. In Chief Enforcement Officer v. Videocon
International Ltd. [Chief Enforcement Officer v. Videocon
International Ltd., (2008) 2 SCC 492 : (2008) 1 SCC (Cri)
471] (SCC p. 499, para 19) the expression “cognizance”
was explained by this Court as “it merely means „become
aware of‟ and when used with reference to a court or a
Judge, it connotes „to take notice of judicially‟. It indicates
the point when a court or a Magistrate takes judicial notice
of an offence with a view to initiating proceedings in
respect of such offence said to have been committed by
someone. It is entirely a different thing from initiation of
proceedings; rather it is the condition precedent to the
initiation of proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons.
Under Section 190 of the Code, it is the application of
judicial mind to the averments in the complaint that
constitutes cognizance. At this stage, the Magistrate has to
be satisfied whether there is sufficient ground for
proceeding and not whether there is sufficient ground for
conviction. Whether the evidence is adequate for
supporting the conviction can be determined only at the
trial and not at the stage of enquiry. If there is sufficient
ground for proceeding then the Magistrate is empowered
for issuance of process under Section 204 of the Code.
12. A summon is a process issued by a Court calling upon a
person to appear before a Magistrate. It is used for the
purpose of notifying an individual of his legal obligation to
appear before the Magistrate as a response to violation of
law. In other words, the summons will announce to the
person to whom it is directed that a legal proceeding has
been started against that person and the date and time on
which the person must appear in Court. A person who is
summoned is legally bound to appear before the Court on
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the given date and time. Willful disobedience is liable to be
punished under Section 174 IPC. It is a ground for
contempt of court.
13. Section 204 of the Code does not mandate the
Magistrate to explicitly state the reasons for issuance of
summons. It clearly states that if in the opinion of a
Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, then the summons may be
issued. This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient ground for
summons to be issued but it is nowhere mentioned in the
section that the explicit narration of the same is mandatory,
meaning thereby that it is not a pre-requisite for deciding
the validity of the summons issued.”
22. The above observations are in the context of taking cognizance of
a complaint. As per definition under Section 2(d) of Cr.P.C., the
complaint does not include a police report.
23. Mr. Palit, learned Senior Counsel for the petitioners-accused relied
upon various judgments to contend that while taking cognizance, the
Court has to record the reasons that prima facie case is made out and that
there are sufficient grounds for proceeding against the accused for that
offence. It was contended that while taking cognizance, the Court has to
record reasons that prima facie case is made out and that there are
sufficient grounds for proceeding against the accused for that offence.
Page 15 of 28
However, what needs to be understood is that as per the definition under
Section 2(d) Cr.P.C., ―complaint‖ does not include a police report. In
fact, it was also observed in Mehmood Ul Rehman v. Khazir
Mohammad Tunda reported in (2015) 12 SCC 420 that ―under Section
190(1)(b) Cr.P.C., the Magistrate has the advantage of a police report;
but under Section 190(1)(a) Cr.P.C., he has only a complaint before him.
Hence, the Code specifies that ―a complaint of facts which constitutes an
offence‖. Section 190(1)(a) Cr.P.C. provides for cognizance of
complaint. Section 190(1)(b) Cr.P.C. deals with taking cognizance of
any offence on the basis of police report under Section 173(2) Cr.P.C.
―Complaint‖ is defined in Section 2(d) CrPC which reads as under:
“2. Definitions.–(a)-
(c) **** **** ****
(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include a
police report.”
24. The procedure for taking cognizance upon complaint has been
provided under Chapter-XV, complaints to Magistrates under Sections
200 to 203 of Cr.P.C. A complaint filed before the Magistrate may be
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dismissed under Section 203 Cr.P.C., if the Magistrate is of the opinion
that there is no sufficient ground for proceeding and in every such case,
he shall briefly record his reasons for so doing. If a complaint is not
dismissed under Section 203 Cr.P.C., the Magistrate issues process under
Section 204 of Cr.P.C. Section 204 of Cr.P.C. is in a separate chapter
i.e. Chapter XVI – Commencement of Proceedings before Magistrates. A
combined reading of Sections 203 and 204 of Cr.P.C. shows that for
dismissal of a complaint, reasons should be recorded. The procedure for
trial of warrant cases is provided in Chapter XIX — Trial of Warrant
Cases by the Magistrates. Chapter XIX deals with two types of cases
(A) Cases instituted on a police report and (B) Cases instituted otherwise
than on police report. In the present case, cognizance has been taken on
the basis of police report.
25. In Paragraph-21 of Mehmood Ul Rehman (supra), the Hon’ble
Supreme Court has made a fine distinction between taking cognizance
based upon charge-sheet filed by the police under Section 190(1)(b) of
Cr.P.C. and a private complaint under Section 190(1)(a) of Cr.P.C. and
held thus:
Page 17 of 28
“21. Under Section 190(1)(b) of CrPC, the Magistrate
has the advantage of a police report and under Section
190(1)(c) of CrPC, he has the information or knowledge
of commission of an offence. But under Section
190(1)(a) of CrPC, he has only a complaint before him.
The Code hence specifies that … “a complaint of facts
which constitute such offence”. Therefore, if the
complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) of CrPC. The
complaint is simply to be rejected..”
26. In summoning the accused, it is not necessary for the Magistrate to
examine the merits and demerits of the case and whether the materials
collected is adequate for supporting the conviction. The court is not
required to evaluate the evidence and its merits. The standard to be
adopted for summoning the accused under Section 204 of Cr.P.C. is not
the same as at the time of framing the charge. For issuance of summons
under Section 204 of Cr.P.C., the expression used is “there is sufficient
ground for proceeding…”; whereas for framing the charges, the
expression used in Sections 240 and 246 of I.P.C. is ―there is ground for
presuming that the accused has committed an offence…”. At the stage of
taking cognizance of the offence based upon a police report and for
issuance of summons under Section 204 of Cr.P.C., detailed enquiry
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regarding the merits and demerits of the case is not required. The fact
that after investigation of the case, the police have filed charge-sheet
along with the materials thereon may be considered as sufficient ground
for proceeding for issuance of summons under Section 204 of Cr.P.C.
27. Insofar as taking cognizance based on the police report is
concerned, the Magistrate has the advantage of the charge-sheet,
statement of witnesses and other evidence collected by the police during
the investigation. The Investigating Officer/SHO collects the necessary
evidence during the investigation and thereafter files charge-sheet under
Section 173 of Cr.P.C. In appropriate cases, opinion of the Public
Prosecutor is also obtained before filing the charge-sheet. The Court thus
has the advantage of the police report along with the materials placed
before it by the police. Under Section 190(1)(b) ofs Cr.P.C, where the
Magistrate has taken cognizance of an offence upon a police report and
the Magistrate is satisfied that there is sufficient ground for proceeding,
the Magistrate directs issuance of process. In case of taking cognizance
of an offence based upon the police report, the Magistrate is not required
to record any reasons for issuing the process, rather, the Magistrate is
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only required to pass an order issuing summons to the accused. Such an
order of issuing summons to the accused is subject to satisfaction of the
Magistrate that there is sufficient ground for proceeding against the
accused on the consideration of the police report and other documents
and satisfying himself. This being a case based upon the police report,
the Magistrate is not required to record any reason at the stage of issuing
the summons to the accused,
28. In the present case, therefore, upon perusal of order of cognizance
dated 08.02.2019 in V.G.R. Case No.5 of 2014 corresponding to
Balasore Vigilance P.S. Case No. 9 of 2014 pending before the Court of
the learned Special Judge, Vigilance, Keonjhar, it is amply clear that the
learned Magistrate has perused the F.I.R., charge-sheet, statement of
witnesses and order of sanction against the co-accused of the present
petitioners, apart from other documents produced by the Investigating
Officer to arrive at the conclusion that a prima facie case is made out and
therefore, cognizance has been taken and summons were issued. This
Court finds no infirmity or illegality with the same in light of the
discussion made above.
Page 20 of 28
29. Inherent jurisdiction under Section 482 of Cr.P.C though wide has
to be exercised sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae – to do real and substantial
justice for the administration of which alone courts exist. Authority of
the court exists for advancement of justice and prevent abuse of process
of law. In R.P. Kapur v. State of Punjab, reported in AIR 1960 SC 866,
the Hon’ble Supreme Court summarized some categories of cases where
inherent power can and should be exercised to quash the proceedings:-
(i) where it manifestly appears that there is a legal bar against
the institution or continuance e.g. want of sanction;
(ii) where the allegations in the First Information Report or
complaint taken at their face value and accepted in their
entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no
legal evidence adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
Page 21 of 28
30. It is eminently clear that when exercising jurisdiction under
Section 482 of the Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is reliable or not or
whether on a reasonable appreciation of its accusation would not be
sustained. That is the function of the trial Judge. Due process of law
can’t be curtailed in between, at the same time, lest it would be an
instrument in the hands of a private complainant to unleash vendetta to
harass any person needlessly or it would allow an accused to short-
circuit the prosecution intermittently by invoking the inherent
jurisdiction.
31. The scope of exercise of power under Section 482 of the Code and
the categories of cases where the High Court may exercise its power
under it relating to cognizable offences to prevent abuse of process of
any court or otherwise to secure the ends of justice were set out in some
detail by the Apex Court in State of Haryana v. Bhajan Lal, reported in
1992 Supp (1) SCC 335. A note of caution was, however, added that the
power should be exercised sparingly and that too in the rarest of the rare
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cases. The illustrative categories indicated by the Hon’ble Supreme
Court are as follows:
“(1) where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused;
(2) where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section 155(2) of the
Code;
(3) where the uncontroverted allegations made in the FIR or
‘complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused;
(4) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated under Section 155(2) of
the Code;
(5) where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specificPage 23 of 28
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal
grudge.”
32. As discussed above, the powers of the High Court under Section
482 of the Code are very wide. If the power is very plenitude, great
caution, is required to be exercised. Court must be careful to see that its
decision in exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate prosecution.
The High Court being the highest Court of a State should normally
refrain from giving a prima facie decision in a case where the entire facts
are incomplete and hazy, which needs to be established by the
prosecution in due course of trial. Of course, no hard-and-fast rule can be
laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceedings at any stage. But
it shall suffice to say here that it would not be proper for this Court to
analyse the case of the complainant at this stage, rather it would be
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erroneous to assess the material and conclude that the
complaint/prosecution cannot be proceeded with. At this stage, it is not
necessary that there should be meticulous analysis of the case before the
trial to find out whether the case would end in conviction or acquittal.
On consideration of the allegations in the light of the material form part
of the charge sheet if the ingredients of the offence or offences are
disclosed and there is no material to show that the complaint is
motivated by mala fide design, frivolous or vexatious, in that event there
would be no justification for interference by the High Court. In this
regard this Court relies upon the Hon’ble Supreme Court’s judgments in
Dhanalakshmi v. R. Prasanna Kumar, reported in 1990 Supp SCC
686, State of Bihar v. P.P. Sharma, reported in 1992 Supp (1) SCC
222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill reported in (1995) 6
SCC 194, State of Kerala v. O.C. Kuttan, reported in (1999) 2 SCC
651, State of U.P. v. O.P. Sharma, reported in (1996) 7 SCC
705, Rashmi Kumar v. Mahesh Kumar Bhada, reported in (1997) 2
SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi, reported in
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(1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi reported in
(1999) 3 SCC 259.
33. Mr. Palit, learned Senior Counsel also sought to rely on the
Deputy Director of Mines’s statement under Section 161 of Cr.P.C. to
highlight that the explanation of irregularities being mere ‗clerical
issues’ has been accepted by the Competent Authority before and
therefore cannot be re-agitated at this point. Learned Senior Counsel
further submitted that the export was done on a valid license, may be the
license was not possessed by Company A but by Company B. Therefore,
in the absence of any loss to the State Exchequer, no mens rea could be
found from the transaction. It is seen from the record that when M/s
Rashmi Cement had obtained a license for procurement for self-
consumption vide letter No.15463, it did not possess a valid export
license. The dispatched quantity of 3955.00 MT of iron fines during June
2009 and 3661.790 MT during August 2009 to Gangavaram Port was
shown in the monthly return against the license No. 15463 which
purportedly belonged to M/s Rashmi Metaliks, their sister concern. As
such, there appears to be a prima facie flouting of license conditions.
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34. This Court at this stage is consciously refraining from dealing with
the contention raised by Mr. Palit, learned Senior Counsel in detail,
which may prejudice the case of the petitioners before the learned trial
Court, however, suffice it to say that prima facie case is established to
sustain the cognizance order. In any case, the present petitioners are free
to raise all their contentions before the learned trial Court in due course
and thrash out the factual issues arising herein. However, at this stage,
where summons have been issued and cognizance has just been taken, it
is not the appropriate stage for this Court to exercise its extraordinary
powers.
35. In view of the discussion made in the preceding paragraphs and
keeping the settled principles of law in mind, this Court finds no
infirmity, illegality or impropriety in the impugned order of the learned
Magistrate, which would justify interference in the present Petition at
this stage. Hence, I am not inclined to entertain this petition.
36. Accordingly, the CRLMC is dismissed. However, dismissal of the
present petition shall not preclude the petitioners to resort to any other
remedy available under law including filing of discharge petition before
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the court below. If any such application is moved by the petitioners, the
same shall be considered by the learned Court below on its own merit
without being influenced by the observation made by this Court in this
judgment.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 13th February, 2025/ Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Reason: Authentication
Location: High Court of Orissa
Date: 01-Mar-2025 14:44:43 Page 28 of 28