CRLMC/2750/2026 of ABHISEK ROUTRAY Vs STATE OF ODISHA on 8 September 2026

ORDER

08.09.2026 Order No.

01.

1. This matter is taken up through Hybrid Mode.

2. Heard learned counsel for the Petitioner as well as learned counsel for the State. Perused the CRLMC application as well as the prayer made therein.

3. By filing the present application under Section 528 of the BNSS, the accused in Nayapali PS Case No.247 of 2026 pending in the file of learned JMFC (Cog-III), Bhubaneswar which arises out of 1CC Case No.3 of 2026 and corresponds to CT Case No.501 of 2026 has approached this Court with a prayer for quashing of order dated 07.02.2026 whereby the learned Magistrate has directed for registration of the FIR under Section 316(2), 318(4), and 351(2) of the BNS.

4. Learned counsel for the Petitioner, at the outset, contended that in view of the latest judgment of the Hon’ble Supreme Court Arshad Neyaz Khan vs. State of Jharkhand and Another, reported in 2025 INSC 1151, this Court ought to set aside the aforesaid direction of the learned Magistrate for registration of the FIR both under Section 316(2) and 318(4) of the BNS. In the aforesaid reported judgment of the Hon’ble Supreme Court, the Hon’ble Supreme Court has categorically held that no case, both under Sections 406 and 420 of the IPC, be tried together i.e., both the allegations of criminal breach of trust and cheating cannot coexist simultaneously in same set of facts as they are antithetical to each other. In such view of the matter, learned counsel for the Petitioner contended that the direction of the learned Magistrate to register the FIR under the aforesaid two sections is not permissible in law in view of the law laid down by the Hon’ble Supreme Court in Arshad Neyaz Khan’s case (supra).

5. Learned counsel for the State, on the other hand, contended that the case that has been registered by the police upon certain direction of the learned Magistrate is at a preliminary stage. He further contended that in course of investigation, such allegations would be inquired into by the Investigating Officer. Therefore, it would be premature to interfere with the order of the learned Magistrate at this stage. He further submitted that the law laid down by the Hon’ble Supreme Court can very well be taken into consideration at the time of filing of charge sheet and subsequently at the stage of taking cognizance as well as during framing of charge. He further submitted that since the investigation is still on, it would be premature to come to any definite conclusion as to whether an offence under Section 416(2) or Section 318(4) of the BNS is made out against the present Petitioner. In such view of the matter, learned counsel for the State contended that the present application being premature, need not be entertained at this stage.

6. Having regard to the submissions made by counsels appearing for the respective parties, on a careful examination of the background facts as well as the materials filed along with the present application, further on a careful reading of the judgment of the Hon’ble Supreme Court in Arshad Neyaz Khan’s case (supra), this Court observes that the Hon’ble Supreme Court has categorically laid down the principle that both the allegation under Section 406 and 420 cannot coexist on a self-same set of facts as they are antithetical to each other. Thus, it is clear that the accused- Petitioner cannot be made to face trial for allegation under both the aforesaid sections. However, taking into consideration the factual background of the present case and considering the fact that the case has just been registered and no investigation has commenced as of yet, it would not be proper to interfere at this stage of the proceeding. However, while disposing of the present application, liberty is granted to the Petitioner to raise such point at the time of framing of charge before the learned trial court. Moreover, this Court also observes that the investigating agency as well as the cog-taking Magistrate are also duty-bound to take into consideration the aforesaid principle laid down by the Hon’ble Supreme Court, and consider its applicability to the facts of the present case, at the relevant stage.

7. With the aforesaid observations/ directions, the CRLMC application stands disposed of. .

( A.K. Mohapatra )

Judge

Anil

Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 10-Sep-2026 11:27:51 Signature Not Verified