PAWAN KUMAR AGRAWALA vs STATE OF ODISHA(VIG.)
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 835 of 2025
An application under Section 442 read with Section 438 of the Bharatiya
Nagarik Suraksha Sanhita, 2023.
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Pawan Kumar Agrawala ..…. Petitioner
-versus-
State of Odisha (Vigilance) …… Opp. Party
Advocates appeared in this case:
For Petitioner : Ms. Agnisikha Ray, Advocate
For Opp. Party : Mr. Sangram Das, Standing Counsel
(for Vigilance Department)
CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
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Date of hearing: 23.02.2026 : Date of Judgment: 29.04.2026
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Savitri Ratho, J The Petitioner has challenged the order dated 26.07.2025
passed by the learned Special Judge, Vigilance, Sambalpur
rejecting the application filed by him for discharge from the
offences under Section 12 of the Prevention of Corruption Act,
1988 and Sections 181 and 182 of the Indian
(in short “P.C. Act”)
Penal Code (in I.P.C .
short “ .”)
CRLREV No. 835 of 2025 Page 1 of 21
PROSECUTION CASE
2. On 26.12.2011, the Petitioner submitted a written
complaint before the S.P. Vigilance, Sambalpur against Sri Santosh
Kumar Das, SDO Electrical Commerce, Bargarh and Sri Sambit
Ku. Rout, working as J.E. O/o. S.D.O. Electrical (Commerce),
Bargarh, alleging demand of illegal gratification of Rs.5,500/- for
deciding a case of penalty towards electrical dues amounting to
Rs.43,000/- On his report Sambalpur Vigilance P.S. Case No. 17
dated 24.04.2003, under Sections l3(2) read with Section
13(1)(d)/7 of the P.C. Act and under Section 34 of the I.P.C. was
registered against the two accused persons. They faced trial in CTR
No. 44 of 2003 in the Court of the learned Special Judge
(Vigilance), Sambalpur for commission of offences punishable
under Section 7 and Section -13 (1) (d) read with Section 13 (2) of
the P.C. Act. During trial, the petitioner was examined by the
prosecution as P.W.4, but as he did not support the prosecution
case, he was declared hostile and cross examined by the
prosecution. As he did not support the prosecution case, the
accused persons were acquitted of the charges under Section 248
–
CRLREV No. 835 of 2025 Page 2 of 21
(1) of the Cr.P.C. by judgment dated 08.09.2011 by the learned
Special Judge, Vigilance, Sambalpur.
3. On 26.12.2011, an FIR was filed by Sri P.K. Tripathy,
Inspector Vigilance, Rourkela Unit Sambalpur Division alleging
that the Petitioner turned hostile in order to defend the accused
persons against whom he had lodged FIR. As he did not support
the prosecution case in the trial the accused persons were acquitted.
As he had given bribe of Rs. 4,500/- to Sri S.K. Rout on
24.04.2003 and Rs.5,000/- to Sri Santosh Kumar Das, to decide his
case of penalty towards electrical dues and had lodged FIR alleging
demand of bribe and requested for investigation knowing it to be
false with intention to initiate malicious criminal proceeding
against the accused, he was liable for offence under Section 12 of
the PC Act and Sections 181 and 182 of the I.P.C. On basis of his
complaint, Sambalpur Vigilance P.S. case No 94 of 2011 was
registered against the petitioner for commission of offences under
Sections 12 of the P.C. Act and Sections 181 and 182 of the IPC.
4. After filing of chargesheet dated 26.03.2013, cognizance
of the offences under Section 12 of the P.C. Act and Sections 181
and 182 of the I.P.C. was taken against the petitioner on
16.12.2013. When the case was posted for trial, the petitioner filed
CRLREV No. 835 of 2025 Page 3 of 21
an application under Section 239 of the Cr.P.C. for discharge,
relying upon the decision of this Court in Kamal Kumar Nanda vs
State of Orissa ( Vig) : (2017) 67 OCR 81 , which was dismissed
on 26.07.2025.
IMPUGNED ORDER
5. The learned Special Judge, Vigilance by order dated
26.07.2025, referred to the decision of of this Court in Shiv Dutt
Sharma vs State of Orissa : (2015) 60 OCR 646 and the decision
of the Supreme Court in the case of State of M.P. vs Mohanlal
Soni : (2000) 6 SCC 338 , holding that mini trial was not required to
be held at the time of framing of charge and the plea of the accused
can be dealt with at the time of trial , and rejected the application
for discharge. The learned trial Court also held that cognizance of
offences under Section 12 of the P.C. Act had been taken against
the petitioner which relates to punishment for abetting offence
under Section 7 or 11, but in case of Kamal Kumar Nanda (supra),
the accused was not charged for committing an offence under
Section 7 or 11 of the P.C. Act.
CRLREV No. 835 of 2025 Page 4 of 21
SUBMISSION ON BEHALF OF THE PETITIONER
6. Ms. Agnisikha Ray, learned counsel for the Petitioner
submitted that the Petitioner should be discharged from the above
offences on the following grounds:-
(i) Section 12 of the P.C. Act deals with punishment for
abetment of offences. In the present case, the ingredients necessary
to attract Section 12 are wholly absent.
(ii) Section 195 (1)(a)(i) of the Code of Criminal Procedure,
1973 ( Cr.P.C. ) mandates that cognizance of certain
in short “ ”
offences, which includes the offences under Sections 181 and 182
of the I.P.C. can be taken only upon a complaint in writing of the
public servant concerned or of some public servant to whom he is
administratively subordinate, which is not the case here.
(iii) In view of the procedure of Section 132 of the Evidence
Act, the evidence of the statement of the Petitioner cannot subject
him to prosecution on the allegation of giving false evidence.
(iv) Relying on paragraph 87 of the judgment of this Court in
Kamal Kumar Nanda vs. State of Orissa (vigilance) : (2017) 67
OCR 81 , she submitted that in similar circumstances the accused
therein was discharged and charges framed against him were
CRLREV No. 835 of 2025 Page 5 of 21
quashed. She further submitted that it is wrongly interpreted /
observed by the learned trial court, that the accused in that case had
not been charged under Section 7 or 11 of the P.C. Act, which is
indicative of complete non-application of judicial mind.
SUBMISSIONS ON BEHALF OF STATE (VIGILANCE
DEPARTMENT)
7. Mr. Sangram Das, learned Standing Counsel (Vigilance),
relying upon the decision of the Supreme Court in the case of
Asian Resurfacing of Road Agency Pvt. Ltd vs. CBI : 2018 (16)
SCC 299 , submitted that the revision is not maintainable, as
appreciation of evidence is not permissible in a revision and a
revision challenging an order rejecting discharge should be
entertained only in rarest of rare case only to correct a patent error
of jurisdiction and not to reappreciate the evidence.
(ii) The contentions of the Petitioner are in the nature of a
defence plea which cannot be considered at the time of framing of
charge by holding a mini trial. The plea of the accused can be dealt
with by the learned trial Court during the trial.
CRLREV No. 835 of 2025 Page 6 of 21
(iii) The impugned order is neither perverse nor erroneous so
as to warrant interference by this Court in exercise of revisional
powers.
(iv) Relying on the decisions of the Supreme Court in the
case of Narinder Singh vs. State of Himachal Pradesh ; (2014) 13
SCC 30, he submitted that when any non-public servant attempts to
bribe a public servant, he comes within the ambit of Section 7 of
the P.C Act, for which Section 12 comes into play.
(v) Apart from other submissions he also submitted that the
P.C. Act has undergone a number of amendments in the year 2018,
which may be relevant for deciding this CRLREV.
STATUTORY PROVISONS
8. Section 12 of the P.C. Act has been amended in 2018.
The unamended Section and Sections 181 and 182 of the I.P.C.,
and Section 195 of the Cr.P.C., which are relevant for deciding this
case are extracted below:-
Prevention of Corruption Act-
Section 12. Punishment for abetment of offences
defined in Section 7 or 11, - Whoever abets any
offence punishable under Section 7 or 11, whether
or not that offence is committed in consequence of
that abetment, shall be punishable with
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imprisonment for a term which shall not be less
than three years, but which may extend to seven
years and shall also be liable to fine .
Indian Penal Code-
Section 181. False statement on oath or
affirmation to public servant or person
authorised to administer an oath or affirmation.
- Whoever, being legally bound by an oath [or
affirmation] to state the truth on any subject to
any public servant or other person authorized by
law to administer such oath [or affirmation],
makes, to such public servant or other person as
aforesaid, touching that subject, any statement
which is false, and which he either knows or
believes to be false or does not believe to be true,
shall be punished with imprisonment of either
description for a term which may extend to three
years, and shall also be liable to fine.
Section 182. False information, with intent to
cause public servant to use his lawful power to
the injury of another person. — Whoever gives to
any public servant any information which he
knows or believes to be false, intending thereby to
cause, or knowing it to be likely that he will
thereby cause, such public servant
—
(a) to do or omit anything which such public
servant ought not to do or omit if the true state of
CRLREV No. 835 of 2025 Page 8 of 21
facts respecting which such information is given
were known by him, or
(b) to use the lawful power of such public servant
to the injury or annoyance of any person, shall be
punished with imprisonment of either description
for a term which may extend to six months, or
with fine which may extend to one thousand
rupees, or with both.
Illustrations
(a) A informs a Magistrate that Z, a police-officer,
subordinate to such Magistrate, has been guilty of
neglect of duty or misconduct, knowing such
information to be false, and knowing it to be likely
that the information will cause the Magistrate to
dismiss Z. A has committed the offence defined in
this section.
(b) A falsely informs a public servant that Z has
contraband salt in a secret place, knowing such
information to be false, and knowing that it is
likely that the consequence of the information will
be a search of Z's premises, attended with
annoyance to Z. A has committed the offence
defined in this section.
(c) A falsely informs a policeman that he has been
assaulted and robbed in the neighbourhood of a
particular village. He does not mention the name
of any person as one of his assailants, but knows
it to be likely that in consequence of this
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information the police will make enquiries and
institute searches in the village to the annoyance
of the villagers or some of them. A has committed
an offence under this section.
Code of Criminal Procedure
Section-195. Prosecution for contempt of lawful
authority of public servants, for offences against
public justice and for offences relating to
documents given in evidence-
(1)No Court shall take cognizance –
(a)(i)of any offence punishable under sections 172
to 188 (both inclusive) of the Indian Penal Code
(45 of 1860), or
ii)of any abetment of, or attempt to commit, such
offence, or(iii)of any criminal conspiracy to
commit such offence, except on the complaint in
writing of the public servant concerned or other
public servant to whom he is administratively
subordinate;
(b)(i)of any offence punishable under any of the
following sections of the Indian Penal Code (45 of
1860), namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged to have
been committed in, or in relation to, any
proceeding in any Court, or
(ii)of any offence described in section 463, or
punishable under section 471, section 475 or
section 476 of the said Code, when such offence is
CRLREV No. 835 of 2025 Page 10 of 21
alleged to have been committed in respect of a
document produced or given in evidence in a
proceeding in any Court, or
(iii)of any criminal conspiracy to commit, or
attempt to commit, or the abetment of, any offence
specified in sub-clause (i) or sub-clause (ii),
[except on the complaint in writing of that Court
or by such officer of the Court as that Court may
authorise in writing in this behalf, or of some
other Court to which that Court is
subordinate.] [Substituted by Act 2 of 2006,
Section 3 for "except on the complaint in writing
of that Court, of of some other Court to which that
Court is subordinate" (w.e.f. 16-4-2006).]
(2)Where a complaint has been made by a public
servant under clause (a) of sub-section (1) any
authority to which he is administratively
subordinate may order the withdrawal of the
complaint and send a copy of such order to the
Court; and upon its receipt by the Court, no
further proceedings shall be taken on the
complaint :
Provided that no such withdrawal shall be
ordered if the trial in the Court of first instance
has been concluded.
(3)In clause (b) of sub-section (1), the term
"Court" means a Civil, Revenue or Criminal
Court and includes a Tribunal constituted by or
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under a Central, Provincial or State Act, if
declared by that Act to be a Court for the
purposes of this section.
(4)For the purposes of clause (b) of sub-section
(1), a Court shall be deemed to be subordinate to
the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former
Court, or in the case of a Civil Court from whose
decrees no appeal ordinarily lies, to the principal
Court having ordinarily original civil jurisdiction
within whose local jurisdiction such Civil Court is
situate :Provided that
–
(a)where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be
the Court to which such Court shall be deemed to
be subordinate;
(b)where appeals lie to a Civil and also to a
Revenue Court, such Court shall be deemed to be
subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding
in connection with which the offence is alleged to
have been committed.‖
JUDICIAL PRONOUNCEMENTS
9. In the case of Asian Resurfacing of Road Agency Pvt.
Ltd (supra), this Court has held as follows:
CRLREV No. 835 of 2025 Page 12 of 21
36. Thus, we declare the law to be that order
“
framing charge is not purely an interlocutory
order nor a final order. Jurisdiction of the High
Court is not barred irrespective of the label of a
petition, be it under Sections 397 or 482 Cr.P.C.
or Article 227 of the Constitution. However, the
said jurisdiction is to be exercised consistent with
the legislative policy to ensure expeditious
disposal of a trial without the same being in any
manner hampered. Thus considered, the challenge
to an order of charge should be entertained in a
rarest of rare case only to correct a patent error
of jurisdiction and not to reappreciate the
matter….‖
In the case of Narinder Singh (supra), the Appellant had
been acquitted by the learned trial court, but the High Court set
aside the acquittal and convicted the Appellant for commission of
the offence under Section12 of the P.C. Act. The judgment of the
High Court was challenged in the Supreme Court on the ground
that the police officer who conducted the investigation was not an
authorised officer in terms of Section 17 of the Act for which the
entire investigation was vitiated in law. The other ground for
challenge was that the High Court erroneously drew presumption
under Section 20 of the Act, when the demand or offer for
CRLREV No. 835 of 2025 Page 13 of 21
gratification had not been proved. The Supreme Court dismissed
the appeal holding as follows:-
11. While taking note of the finding recorded by
―
the High Court, we are fully in agreement that the
prosecution has proved charges made against the
appellant. The provisions of law considered by the
High Court ought to have been followed by the
trial court. The trial court decided the matter as if
the offence has been committed by the appellant
under the provisions of the Penal Code, 1860. The
trial court has not considered the gravity of the
offence as contemplated under the Prevention of
Corruption Act, 1988.
12. In the facts and circumstances of the case and
seriousness of the offence, we fully agree with the
view taken by the High Court. The impugned
judgment, therefore, needs no interference. Hence
this appeal has no merit and the same is
dismissed. ‖
In the case of Kamal Kumar Nanda (supra), this Court
has held as follows :
“ Law is well settled that statement of a witness
recorded under Section 161 of Cr.P.C. during the
investigation is not a substantive piece of evidence
and in view of the proviso to Sub-section (1) of
Section 162 of Cr. PC., such statement can be
CRLREV No. 835 of 2025 Page 14 of 21
used only for the limited purpose of contradicting
the maker thereof in the manner laid down in the
said proviso. Similarly statement recorded
under Section 164 Cr.P.C. can never be used as
substantive evidence of truth of the facts but may
be used for contradiction and corroboration of a
witness who made it. The statement made
under Section 164 Cr.P.C. can be used to cross
examine the maker of it and the result may be to
show that the evidence of the witness is; false. It
can be used to impeach the credibility of the
prosecution witness. When a witness gives a
statement to the Magistrate under Section 164
Cr.P.C. and later during the trial disowns it and
gives a different version, either the statement
given by him before the learned Magistrate may
be true or his deposition before the learned Trial
Court may be true, but both may not be true. The
statement of a witness under Section 164 of
Cr.P.C. is recorded being sponsored by the
investigating agency. If on compulsion by the
investigating officer, a witness implicates an
accused in the crime in his 164 Cr.P.C statement
but during trial, he states differently and
exonerates the accused and further states that on
compulsion, he gave the 164 Cr.P.C. statement, it
would be travesty of justice to prosecute such
witness for giving false evidence. Similarly a
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witness cannot be prosecuted for perjury for
resiling from his statement recorded by police
under Section 161 of Cr.P.C.
If a witness deposing during trial deviates from
his previous statements recorded either
under Section 161 or Section 164 of Cr.P.C., it
cannot be said that he has abetted the accused
who is facing trial for the commission of an
offence. Therefore, on the face of the accusation, I
am of the view that framing of charge
under Section 12 of the 1988 Act suffers from non-
application of mind and cannot be sustained in
the eye of law.
xxx xxx xxx
Section 195(1)(a)(i) of the Code of Criminal
Procedure states that no Court shall take
cognizance of any offence punishable
under Sections 172 to 188 (both inclusive) of the
Indian Penal Code except on the complaint in
writing of the public servant concerned or of some
other public servant to whom he is
administratively subordinate. Obviously offences
under Sections 181 and 182 of the Indian Penal
Code come within the purview of Section
195(1)(a)(i) of Cr.P.C.) This section is one of the
sections which prohibit a Court from taking
cognizance of certain offences unless and until a
complaint has been made by some particular
CRLREV No. 835 of 2025 Page 16 of 21
authority or person. As the section creates an
absolute bar against the Court taking cognizance
of the offence except in the manner provided by
the section, if the Court takes cognizance against
the provision, the cognizance should be illegal
and without jurisdiction. Once the order of taking
cognizance is held to be illegal, the subsequent
order of framing charge is also illegal and liable
to be quashed.
In the present case, when no complaint as
described under Section 2(d) of Cr.P.C. has been
made either by the public servant concerned i.e.
Junior Engineer Subanath Majhi or by any other
public servant to whom Subhanath Majhi was
administratively subordinate, the prosecution
against the petitioner for the offences punishable
under Sections 181 and 182 of the Indian Penal
Code on the basis of the first information report
lodged by Sabitarani Panda, Inspector of Police,
Vigilance, Sambalpur Division, Samablpur cannot
be sustained in the eye of law and therefore, I am
of the view that the submission of charge sheet
against the petitioner under Sections 181 and 182
of the Indian Panel Code and consequential order
of framing of charge by the learned Trial Court
under such offences is not proper and justified.
xxx xxx xxx
CRLREV No. 835 of 2025 Page 17 of 21
In the present case, even though it is accepted
for the sake of argument that the petitioner
deposed before the learned Trial Court
voluntarily and not on compulsion but in absence
of any incriminating statements and the fact that
the previous statements given by the petitioner
before the investigating officer and the Magistrate
are not the substantive piece of evidence, the
learned Trial Court erred in framing the charges.
Even though strong suspicion is sufficient to
frame charge but when the materials available on
record taken on its face value do not disclose the
ingredients of the offences under which the charge
has been framed and the mandates under Section
195(1)(a)(i) of Cr.P.C. have not been followed, I
am of the view that the impugned order cannot be
sustained in the eye of law.
‖
(emphasis supplied)
ANALYSIS AND CONCLUSION
10. It is well-settled that while deciding an application for
discharge, the Court is not to hold a mini trial and that a strong
suspicion is enough for framing charge. It is also well settled that at
the time of framing of charge, the Court is not to act as a mere post
office for the prosecution but should consider whether the
allegation and materials give rise to a prima facie case.
CRLREV No. 835 of 2025 Page 18 of 21
11. In the instant case, the prosecution has relied on Section
12 of the P.C. Act, 1988, which deals with abetment of offences
under Section 7 and 11 of the PC Act. It is undisputed that in the
earlier vigilance case, allegations under Sections 7 and 13 of the
P.C. Act were against the two accused who were subsequently
acquitted. Merely because he did not stick to his earlier allegation,
it cannot be said that he abetted the accused who faced trial. As,
there is no material to indicate that the petitioner had abetted
commission of those offences, he cannot be proceeded under
Section 12 of the PC Act and is liable to be discharged from the
said offence.
12. As regards the charge of commission of offence
punishable under Section 181 of the I.P.C., it is evident from a
reading of Section 195(1)(a)(i) of Cr.P.C. that no Court is
empowered to take cognizance of such offence other than on a
written complaint filed by the public servant concerned or his
superior officer. In the instant case, the requirement has not been
fulfilled as the Petitioner has not stated anything on oath or
affidavit before the Inspector Vigilance who lodged FIR. Hence,
the trial cannot proceed against him in view of the provision under
Section 195(1)(a)(i) of the Cr.P.C.
CRLREV No. 835 of 2025 Page 19 of 21
13. As regards the offence under section 182 of the I.P.C, the
Inspector of Vigilance who lodged FIR is neither the public servant
concerned nor senior to the S.P, Vigilance before whom FIR was
lodged by the petitioner leading to registration of Sambalpur
Vigilance PS Case No. 17 of 2003. The Inspector, Vigilance
(Informant) is also not the person who was accused of committing
offence under Section 7 or 11 of the P.C. Act. Therefore, in view of
the bar under Section 195(1) (a)(ii) of the Cr.P.C., the trial cannot
proceed against the petitioner under Section 182 of the IPC.
14. The decision of this Court in Kamal Kumar Nanda
(supra) is squarely applicable to this case. As the learned counsel
for the Vigilance has not brought to my notice any contrary
decision or submitted that the decision has been set aside by the
Supreme Court, there is no reason as to why, I should not follow
the said decision.
15. That apart, more than twenty three years have elapsed since
the petitioner lodged FIR resulting in registration of Sambalpur
Vigilance P.S. Case No. 17 of 2003. More than fifteen years have
elapsed since the petitioner deposed in CTR no. 44 of 2003 and
FIR in Sambalpur Vigilance P.S. case No 94 of 2011 was
registered against him. Nothing has been brought to my notice that
CRLREV No. 835 of 2025 Page 20 of 21
the petitioner was responsible for the delay in completion of
investigation in Sambalpur Vigilance P.S. case No 94 of 2011 or
commencement of trial. So compelling the petitioner to face trial in
a case where the cognizance is barred for two of the offences for
which he may be charged, after fifteen years, in my opinion would
not be in the interest of justice.
16. In view of the above discussion, I am satisfied that the
impugned order rejecting the application of the petitioner for
discharge is liable for interference.
17. The impugned order is accordingly set aside. The
petitioner is discharged from the offences under Section 12 of the
P.C. Act and Sections 181 and 182 of the I.P.C.
18. The Criminal Revision is allowed.
………………………
(Savitri Ratho)
Judge
O rissa High Court, Cuttack.
th
The 29 April, 2026.
Subhalaxmi, Junior Stenographer.
Signature Not Verified
Digitally Signed
Signed by: SUBHALAXMI PRIYADARSHANI
SAHOO
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 28-May-2026 17:15:42
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