Page No.# 1/8 GAHC030008252025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./39/2025 Central Bureau of Investigation (CBI) Anti Corruption Branch Lamphelpet, Imphal West District Manipur - 795004 VERSUS Sh. Mangatram Kundanlal Sasi @ Aatif Ali (A-11), R/o Village-Ramdas Tehsil-Arjana District- Amritsar, Punjab-143102 Advocate for the Petitioner : Mr Lalremtluanga (Special PP) Advocate for the Respondent : Page No.# 2/8 BEFORE HON’BLE MRS. JUSTICE HELEN DAWNGLIANI ORDER 29.09.2026 Heard Mr. Lalremtluanga, learned Spl. Public Prosecutor, CBI appearing for the petitioner. None appears for the sole respondent despite due service of notice . 2. By way of the present criminal revision petition under Sections 438 read with 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, "BNSS"), read with Section 528 BNSS, the petitioner has called in question the legality, correctness and propriety of the order dated 10.09.2025 passed by the learned Special Judge, Prevention of Corruption Act, 1988 in Special Case No. 01 of 2025, whereby the learned Court below has purportedly discharged the sole respondent from the offences punishable under Sections 120-B, 408, 467, 468 and 471 of the Indian Penal Code, 1860 read with Sections 13(2)/13(1)(a) of the Prevention of Corruption Act, 1988, principally on the ground that the Investigating Officer could not produce/trace the address of the said accused and that the accused was absent before the Court. 3. The short question which arises for consideration is whether an accused against whom the investigating agency has submitted a charge-sheet can be discharged merely because his present whereabouts/address could not be Page No.# 3/8 ascertained and consequently he could not be produced before the Court. 4. The answer, in the opinion of this Court, has to be in the negative. At the outset, it is necessary to keep separate two entirely different aspects of a criminal proceeding, namely, (i) the existence of sufficient material to proceed against an accused, and (ii) the securing of the presence of such accused before the Court. 5. The question of discharge is required to be determined on the basis of the materials collected during investigation and the documents accompanying the police report, and not on the basis of whether the investigating agency has succeeded in securing the physical presence of the accused before the Court. In other words, discharge order under Section 227 has to be based on the absence of sufficient grounds to proceed against that accused. It is not a substitute for an order dealing with an accused who is simply unavailable. 6. The learned Special Judge, while passing the impugned order, has not recorded any finding that the materials forming part of the charge-sheet fail to disclose the ingredients of any of the offences alleged against sole respondent. There is also no finding that the allegations against the accused are groundless or that there is no prima facie material connecting him with the alleged offences. The sole reason apparent from the impugned order is that the Page No.# 4/8 Investigating Officer could not furnish/trace the address of the accused and that the accused was absent and, on that basis, the accused has been discharged. 7. Such an approach, in the considered view of this Court, conflates the issue of appearance of an accused with the entirely different issue of whether there are sufficient grounds to proceed against him. 8. The inability of the Investigating Officer to locate an accused is, at the highest, a circumstance relating to the execution of the process issued for securing his presence. It does not, by itself, obliterate the materials collected during investigation or constitute a ground for recording a judicial finding that the prosecution has no sufficient ground to proceed against such accused. 9. The statutory scheme itself recognises that an accused who is not available before the Court may have to be proceeded against by appropriate measures for securing his attendance. The fact that an accused is unavailable cannot, by itself, be converted into an order of discharge unless the statutory requirements governing discharge are independently satisfied. 10. It is also significant that Section 528 BNSS preserves the inherent jurisdiction of this Court to make such orders as may be necessary to give effect to the provisions of the Sanhita, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The provision is in substance pari Page No.# 5/8 materia with Section 482 of the Code of Criminal Procedure. 11. The revisional jurisdiction under Sections 438 and 442 BNSS enables this Court to examine whether the order under challenge suffers from illegality, impropriety or material irregularity. Section 442 further enables this Court, in exercise of its revisional jurisdiction, to exercise the powers available to an appellate Court in accordance with the statute. 12. In the present case, the impugned order does not disclose any consideration of the materials collected during investigation insofar as sole respondent is concerned. There is no determination as to whether the ingredients of Sections 120-B, 408, 467, 468 and 471 IPC and Sections 13(1)(a) read with 13(2) of the Prevention of Corruption Act are prima facie attracted on the basis of the materials forming part of the charge-sheet. 13. The learned Special Judge appears to have treated the inability of the Investigating Officer to trace the accused as sufficient to bring the prosecution against him to an end. Such an approach is legally unsustainable. 14. The presence or absence of an accused is a matter of securing his attendance; discharge is a matter of judicial determination that there is no sufficient ground to proceed against him. 15. The two concepts cannot be equated. If the accused could not be traced, Page No.# 6/8 the learned Court was required to adopt such procedure as is permissible in law for securing his presence. If the statutory conditions for issuance of coercive process or proclamation were satisfied, the same could be considered in accordance with law. 16. What could not have been done was to treat the inability to locate the accused as a substitute for a judicial finding on discharge. This Court is conscious that revisional jurisdiction is supervisory and is not ordinarily exercised as if this Court were conducting a full-fledged appeal. However, where the inferior Court has proceeded on an erroneous legal premise and the impugned order is founded upon a consideration which is irrelevant to the statutory test of discharge, interference is warranted to prevent miscarriage of justice. 17. The position is also consistent with the settled distinction between the questions whether an accused is available to face trial and the question whether the prosecution material discloses a case requiring him to face trial. The Supreme Court has recognised the need for courts and investigating agencies to take appropriate steps to trace absconding/missing accused so that proceedings can continue, rather than treating their absence as bringing the prosecution to an end. Page No.# 7/8 18. This Court, therefore, finds that the impugned order cannot be sustained insofar as the discharge of sole respondent has been founded solely upon the failure of the Investigating Officer to produce/trace his address and his consequent absence before the Court. 19. At the same time, this Court makes it clear that it is not expressing any opinion on the ultimate merits of the allegations against the said accused. Whether the materials collected by the investigating agency are sufficient to frame charge, and what particular offences are ultimately made out, shall be determined by the learned Special Court in accordance with law and without being influenced by any observation contained in this order. ORDER 20. Accordingly, the present criminal revision petition is allowed. The order dated 10.09.2025 passed by the learned Special Judge, Prevention of Corruption Act, 1988 in Special Case No. 01 of 2025, is interfered with insofar as it discharges the sole respondent on the ground that his address could not be traced/furnished by the Investigating Officer and that he was absent from the proceedings. 21. The matter is remanded to the learned Special Court for consideration afresh in accordance with law. The learned Special Court shall examine the Page No.# 8/8 question of discharge, if otherwise urged, strictly on the basis of the statutory parameters governing discharge and the materials forming part of the charge- sheet, and not merely on the ground of the accused absence or the inability of the Investigating Officer to ascertain his whereabouts. 22. The learned Special Court shall take appropriate steps, in accordance with law, for securing the presence of the respondent No. 1, if required, and shall proceed thereafter in accordance with the applicable provisions of the BNSS. 23. The learned Special Court shall endeavor to proceed with the matter expeditiously and in accordance with law. 24. The criminal revision petition stands disposed of. JUDGE Comparing Assistant