SK,KADIR [email protected] HOSSAIN vs STATE OF ODISHA

IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV NO.419 of 2026
CNR NO. ODHC010384942026

(In the matter of application under Section 401, read
with Sec.397 of Criminal Procedure Code).

… Petitioners
Sk. Kadir Hosen @ Sk.
Quadir Hossain & Another
-versus-
State of Odisha & Another Opposite Parties
…


For Petitioner : Mr. S.K. Zafarulla, Advocate

For Opposite Party : Mr. S.N. Biswal, Addl. PP

CORAM: JUSTICE G. SATAPATHY




DATE OF HEARING & JUDGMENT:28.10.2026(ORAL)

G. Satapathy, J.

1. The petitioner by way of this revision
application seeks to challenge the impugned order
dated 29.01.2026 passed by the learned Ad-Hoc Addl.
District & Sessions Judge (FTSC), Bhadrak in Spl. Case
No.75 of 2020 refusing to discharge the accused-
petitioners from this case in an application U/S.227 of
the CrPC.
2. The facts in nutshell is that the mother of the
victim lodged an FIR against the petitioners and others
CRLREV No.419 of 2026 Page 1 of 6

for kidnaping her daughter and accordingly, a police
case was registered, the victim was rescued by the
police and her statement was recorded, and on
conclusion of investigation, a charge-sheet was
submitted against the petitioners for commission of
offence U/S.363/366/376(2)(n)/109 of IPC r/w
Sec.4(1)/17 of POCSO Act. Further, cognizance was
taken for the aforesaid offences, but the petitioners
filed an application U/S.227 of CrPC praying to
discharge them from this case for commission of
offences U/S.363/366/376(2)(n)/109 of IPC r/w
Sec.4(1)/17 of POCSO Act, however, the same was
rejected by the impugned order which is under
challenge in this revision.
3. Heard Mr. S.K. Zafarulla, learned counsel for
the revision-petitioners and Mr. Siba Narayan Biswal,
learned Addl. PP in the matter and perused the record.
4. The petitioners in fact seeks for discharge
from this case for commission of offence
U/S.366/376(2)(n) and POCSO Act by mainly harping
CRLREV No.419 of 2026 Page 2 of 6

on the statement of the victim, but neither is it the
stage to evaluate the statement of the victim recorded
U/S.164 of CrPC, nor can the probative value of the
statements of the victim U/S.161/164 of CrPC gone
into, however, the provision of discharge is very clear
that if, upon consideration of the record of the case and
the documents submitted therewith, and after hearing
the submission of the accused and the prosecution in
this behalf, the judge considers that there is not
sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reason for
doing so, but if, after such consideration and hearing as
aforesaid, the judge is of the opinion that there is
ground for presuming that the accused has committed
an offence which is exclusively triable by the said
Court, he shall frame in writing a charge against the
accused. In the present case, the Court in seisin over
the matter after going through the record and
documents submitted therewith has rejected the
petition for discharge. It is not out of place to mention
here that merely the victim has not stated against the
CRLREV No.419 of 2026 Page 3 of 6

petitioners in her statement U/S.164 of CrPC, it may
not be appropriate to discharge them from the case
when the other materials on record, such as her
statement recorded U/S.161 of CrPC and medical
examination report otherwise justifies the ingredients of
the offence.
5. On a cumulative consideration of the statements
of the victim together with her medical examination
report, prima facie the victim is found to be less than
17 years of age and there appears allegation against
the petitioner no.1 for keeping physical relationship
with the victim which, however, found the basis for
rejecting the discharge petition of the petitioner-Sk.
Kadir Hosen @ Sk. Quadir. Further the materials on
record also disclose about rescue of the victim and the
petitioner-Sk. Kadir Hosen @ Sk. Quadir by the police
from Kolkata and there appears allegation against the
petitioner Sk. Raja @ Sk. Jabir for providing assistance
to petitioner Sk. Kadir Hosen @ Sk. Quadir for
committing the offence.
CRLREV No.419 of 2026 Page 4 of 6

6. Law is also fairly well settled that when the
materials placed on record discloses grave suspicion as
against mere suspicion against the accused that would
justify the Court in framing the charge against such
accused and to proceed against him in the trial, but the
Court while considering the materials placed on record
cannot resort to a roving enquiry to look into the
probative value of the material or weigh the evidence
as if the trial being conducted. Further, if there exists
some material on record to presume that the accused
has committed an offence, the Court would be perfectly
justified to frame charge inasmuch as the language
used in the provision of charge is for ‘presuming
commission of offence’ by the accused. It is worthwhile
to reiterate that Sec.29 of the POCSO Act provides for
presumption as to certain offences and it is provided
therein that where a person is prosecuted for
committing or abetting or attempting to commit any
offence U/S.3/5/7 and Sec.9 of the POCSO Act, the
special Court shall presume that such person has
committed the offence, unless contrary is proved. So,
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there is a presumption of commission of offence against
the accused which is inbuilt in the provision of law. The
medical report of the victim, however, reveals that
sexual intercourse alleged against the victim cannot be
ruled out. In the aforesaid facts and scenario and
taking into account the principle under which charge is
framed together with the materials placed on record
including the medical examination report of the victim,
this Court does not find any infirmity or illegality in the
impugned order necessitating interference by this
Court.
7. In the result, the criminal revision stands
dismissed, but no order as to costs and pending IA
No.614 of 2026 stands disposed of.

(G. Satapathy)
Judge





Orissa High Court, Cuttack,
th
Dated the 28 day of October, 2026/Jayakrushna

Signature Not Verified
Digitally Signed
Signed by: JAYAKRUSHNA DASH
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 29-Oct-2026 17:03:02
CRLREV No.419 of 2026 Page 6 of 6