Nalinikanta Muduli vs State of Orissa

L. Mohapatra, J.—This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the charge-sheet in V.G.R. Case No. 17 of 2001 pending before the learned Special C.J.M. (Vigilance), Bhubaneswar and also for quashing the order dated 9.12.2002 passed by the learned Special C.J.M. (Vigilance), Bhubaneswar in the aforesaid case taking cognizance of offences under Sections 468/471/420 of the Indian Penal Code.

Earlier this application was heard along with Criminal Misc. Case Nos. 141 and 149 of 2003. All the three applications filed under Section 482 Code of Criminal Procedure were disposed of by a common judgment dated 25.4.2003. So far as the prayer in the present application is concerned, same having been allowed, there was no need to pass any further order in the other two applications. Said judgment dated 25.4.2003 was challenged by the Vigilance Department before the Apex Court in Criminal Appeal Nos. 870, 871 and 872 of 2004. The Hon''ble Supreme Court allowed the appeals, set aside the order passed by this Court and remitted the cases for fresh disposal in accordance with law vide judgment dated 12.8.2004. Learned Counsel for the parties were therefore again heard after the case was remitted back for fresh disposal by this Court.

Background for initiation of this Vigilance Case is that during investigation of Bhubaneswar Vigilance Division Police Station Case No. 43 dated 16.9.2000 it was found that on the strength of Special Class Contractors Licences granted in favour of M/s. Zerina Marines Private Limited, the work order for construction of certain work was awarded in favour of the said company and the Petitioner is the Managing Director of the said Company. It was further found that the price quoted was 9.59% in excess of the estimated cost of the work and one Basant Kumar Dhal was working as Executive Engineer, Puri Irrigation Division at the relevant time. Bid documents for the work were shown to have been sold on 17.8.1999 to one Surendra Kumar Jagadev on behalf of M/s. Zerina Marine Private Limited and the bid documents were filed by one N.C. Pradhan, a power-of-attorney holder of the company as well as the present Petitioner. While evaluating tender said Executive Engineer relied on the bid documents submitted by the company containing certificates in respect of satisfactory completion of similar works. The certificate issued by the Bhubaneswar Development Authority was taken note of showing execution of construction of housing scheme with W.M.D. and Bituminous Road Water Supply, Pipe Line (Internal and external and electrical) at Kalinga Nagar, Bhubaneswar and other works. Upon further investigation, it was found that the Bhubaneswar Development Authority had not issued any such certificate in favour of M/s. Zerina Marine Private Limited nor the company had executed any work under the B.D.A. It was also found that along with bid documents, working experience certificates, purportedly issued from NALCO Captive Power Plant, IDCO, OSHB, Executive Engineer, DSARP Division No. 1, etc had not been issued by the said authorities. Similarly, in respect of ownership of machineries to be used for execution of work were also not found with the company. On the above basis and allegations, an F.I.R. was drawn up against the Petitioner and the aforesaid Executive Engineer Shri Dhal for commission of offences under Sections 120-B/420/468/471 of the Indian Penal Code read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. Upon investigation the Investigating Officer did not find sufficient evidence regarding complicity of the Executive Engineer and other accused persons and submitted charge sheet only against the Petitioner for commission of offences under Sections 468/471/420 of the Indian Penal Code. Learned Special C.J.M. (Vigilance), Bhubaneswar by order dated 9.12.2002 took cognizance of the offences and by order dated 21.12.2002 issued non-bailable warrant of arrest against the Petitioner. Subsequently two applications were filed, one for recalling the order dated 21.12.2002 issuing non-bailable warrant of arrest against the Petitioner and the other under Section 205 Code of Criminal Procedure to dispense with personal appearance of the Petitioner in Court. Learned Special C.J.M. rejected both the applications by order dated 18.1.2003 which had given rise to Criminal Misc. Case Nos. 141 and 149 of 2003. Though earlier the present case and the aforesaid two Criminal Misc. Cases were heard and disposed of in a common judgment, considering the observations made by the Apex Court, I thought it appropriate to deal with each case individually.

So far as this case is conqemed, learned Counsel appearing for the Petitioner challenges competency of the I.O. in submitting a charge sheet and the legality of the order dated 9.12.2002 passed by the learned Special C.J.M. (Vigilance), Bhubaneswar taking cognizance of offences under Sections 468/471/420 of the Indian Penal Code. The first ground taken by the learned Counsel for the Petitioner is that the Investigating Officer who submitted charge-sheet being an Inspector of Police (Vigilance Cell), Unit Office, Bhubaneswar, has no competency or authority to submit a charge-sheet against the Petitioner who is not public servant for commission of offences under Sections 468/471/420 of the Indian Penal Code. The second ground taken by the learned Counsel for the Petitioner is that the learned Special C.J.M. (Vigilance), Bhubaneswar is not competent to take cognizance of the said offences in absence of a charge-sheet being filed for commission of offences under the Prevention of Corruption Act. Shri D.K. Mohapatra, learned Counsel appearing for the Vigilance Department referring to the notification of the Government of Orissa in the Home Department dated 13.7.2001 submitted that Office of the S.P. (Vigilance), Bhubaneswar has been declared to be a police Station and accordingly the I.O. who was working as Inspector in the Vigilance Department is competent to submit charge-sheet for commission of the offences under the Indian Penal Code, even against a person not being a public servant. So far as second ground is concerned, Sri Mohapatra submitted that in terms of the provisions of the Code of Criminal Procedure intimation regarding drawal of the F.I.R. having been given to the learned Special C.J.M.(V), Bhubaneswar, a charge-sheet only could be filed in that Court and in no other Court.

So far as first ground taken by the learned Counsel for the Petitioner is concerned, learned Counsel not only relied upon the notification dated 4.3.1997 issued by the Government of Orissa in the Home Department which was relied upon by the learned Counsel for the Vigilance department on the earlier occasion, but also referred to a Full Bench decision of the Patna High Court reported in State of Bihar and Another Vs. J.A.C. Saldanha and Others, . The said decision of the Supreme Court had been referred to in several subsequent decisions but they were not brought to the notice of the Court when the matter was heard earlier and accordingly the judgment of this Court was set aside. The Apex Court while remitting the matter back to this Court for reconsideration as referred to the other decisions and I think it proper to refer to those decisions first before dealing with the first ground taken by the learned Counsel for the Petitioner.

In the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, The Apex Court examined the High Court''s power to quash criminal proceedings in exercise of it''s jurisdiction under Articles 226 and 227 of the Constitution of India at a stage anterior to trial Court''s decision on taking cognizance of offence on the a basis of police report. The Apex Court held that the High Court committed serious error in putting an end to the prosecution at its inception by going into merits in a pre-trial on consideration of the affidavits and documents which, unless proved to be true and reliable in regular trial, cannot form the basis of any decision regarding commission of offence.

In the case of Union of India and another Vs. W.N. Chadha, , the Apex Court against examined the powers of the High Court under Article 226 of the Constitution of India and held that the High Court had no jurisdiction to wade through the entire original records produced by Govt. as secret documents for proper procedure in execution of the before contract and the bona fides of the contract and on that basis quashing the F.I.R.

In the case of M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, , while examining the Sections 156(3), 169, 173 and 190 of the Criminal Procedure Code the Apex Court held that while investigation is in progress, Court cannot direct the investigating agency to submit a report in accordance with the Court''s own view. On facts the Supreme Court held that the High Court exceeded its jurisdiction under Article 226 in directing the investigating officer to submit a charge-sheet.

In the case of Union of India (UOI) Vs. Prakash P. Hinduja and Another, the Apex Court held that even if the C.B.I, committed an error or irregularly in submitting charge-sheet without approval of the Central Vigilance Commission, cognizance taken by the Special Judge on the basis of such charge-sheet could not be set aside.

In the case of S.M. Datta Vs. State of Gujarat and Another, the Apex Court held that in exercise of jurisdiction under Sections 401 and 482 Code of Criminal Procedure normally the Court should not interfere with the investigations and criminal proceedings, except when the complaint or F.I.R. broadly read does not disclose any offence and can be termed as abuse of process of law.

On reading of the aforesaid decisions, it is clear that ordinarily the Court should neither interfere in investigation nor in criminal proceedings nor in order taking cognizance unless prosecution case considered entirely to be correct, does not disclose commission of any offence. If there is prima facie material in support of commission of any offence, the Court should stay it''s hand in interfering with such investigation or order taking cognizance. Here is a case where competency of the I.O. in submitting a charge sheet and order taking cognizance are being chajlenged on legal grounds and not on facts. Therefore, it is necessary to examine the last notification issued by the Government of Orissa in the Home Department produced by the learned Counsel for the Vigilance Department vis-a-vis competency of the Vigilance Inspector in submitting the charge-sheet against non-public servant for commission of certain offences under the Indian Penal Code. The notification produced by the learned Counsel for the Vigilance Department is quoted below.

"Government of Orissa, Home Department NOTIFICATION dated, Bhubaneswar the 13.7.2001.

No. 38962/HC/Ref.28/2001, In exercise of the powers conferred by Clause (s) of Section 2 of the Code of Criminal Procedure, 1973 (2) of 1974) and in supersession of the notification of the Government of Orissa in the Home Department No. 11844/HS dated the 4th March, 1997, the State Government do hereby declare that the offices mentioned in column (1) of Schedule-I shall be "Police Staticrs" which shall include within their respective limits the areas specified against each in column (2) of the said Schedule for the purpose of the offences mentioned in Schedule II below with effect from the date of publication of this notification in the Orissa Gazette.

Schedule-I

Name of the office Jurisdiction 1 2 1. Office of the S.P., Revenue districts of Vigilance, Cuttack Cuttack, Jagatsinghpur, Jajpur, Kendrapara, Dhenkanal and Angul. 2. Office of the S.P., Revenue districts of Puri, Vigilance, Bhubaneswar. Khurda and Nayagarh. 3. Office of the S.P., Revenue districts of Vigilance, Sambalpur. Sambalpur, Bolangir, Jharsuguda, Bargarh, Sonepur, Deogarh and Sundargarh. 4. Office of the S.P., Revenue districts of Vigilance, Berhampur. Ganjam, Gajapati, Koraput, Kandhamai, Boudh, Rayagada, Nawarangpur, Malkangiri, Kalahandi and Nawapara. Schedule-II

(a) Offences punishable under Sections 161, 162, 163, 164, 165 and 165-A of the Indian Penal Code, 1860 (Act XLV of 1860).

(b) Offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988).

(c) Offences relating to-

(i) evasion of Taxes and different control orders.

(ii) transit and possession of Forest Products as enumerated in Section 45 and 46 of the Orissa Forest Act (Orissa Act 14 of 1972) read with Section 56 of the said Act.

(iii) the Orissa Timber and other Forest Produce Transit Rules, 1990.

(iv) the Essential Commodities Act, 1955 (10 of 1955);

(v) the Prevention of Food Adulteration Act, 1854 (37 of 1954)

(vi) the Standard of Weights and Measures (Enforcement) Act, 1985 (54 of 1985)

(vii) the Drugs (Control) Act, 1950 (26 of 1950);

(viii) the Motor Vehicles Act, 1988 (59 of 1988); and

(ix) all organized offences under the aforesaid Acts, Orders and Rules effecting the pecuniary interest of the State.

(d) Offences under Sections 409, 419 and 420 and Chapter XVIII of the Indian Penal Code, 1860 committed by public servants as defined in the said Code of 1860 and in the Prevention of Corruption Act, 1988.

(e) Attempts, abetments and conspiracies in respect of offences mentioned in items (a), (b), (c), and (d) above, by whomsoever committed.

(f) Any other particular offences or class of offences that may be specified by the State Government from time to time.

By order of the Governor Tarun Kanti Mishra Principal secretary to Government.

Xx xxx xxx xxx xxx.

Shri Mohapatra, learned Counsel for the Vigilance Department referred to Clause (d) and (e) of Schedule-II of the aforesaid notification and submitted that even against a non-public servant the Inspector of Vigilance can submit charge-sheet for commission of offences under the Indian Penal Code, such as 409, 419 and 420. The notification dated 13.7.2001 supersedes the notification dated 4.3.1997 which had been referred to in the earlier judgment which was set aside by the Supreme Court. Under the said notification the State Government declared the office of the S.P. Vigilance in Schedule-I to be police station within the meaning of Section 2 of the Code of Criminal Procedure, 1973 for the purpose of conducting investigation in respect of the offences mentioned in Schedule-II of the said notification. The office of the S.P., Vigilance, Bhubaneswar covers the revenue districts of Puri, Khurda and Nayagarh. In view of the above, the Investigating Officer in the present case who is an Inspector of Vigilance Department at Bhubaneswar posted in the office of the S.P., Vigilance, Bhubaneswar had conducted investigation. Schedule-II (d) empowers such Investigating Office to investigate into commission of offences under Sections 409, 419 and 420 as well as Chapter-XVIII of the Indian Penal Code committed by public servants as defined in the said Code as well as under the Prevention of Corruption Act, 1988. Clause (e) provides that investigation can also be conducted in respect of persons who attempt, abet, or conspire in respect of the offences mentioned in not only in Clauses (a), (b), (c) but also in (d). A conjoint reading of Clauses (d) and (e) would clearly indicate that when there is an attempt, abatement or conspiracy for commission of the offences as mentioned in Clause (a) (b) (c) and (d) of Schedule-II along with a public servant, a non-public servant can also be charge-sheeted for commission of the said offences along with a public servant. Law is well settled in this regard and there cannot be any dispute that a non-public servant can be charge-sheeted by a Vigilance Inspector along with a public servant. The question for consideration in this case is that though investigation started against a public servant a well as the Petitioner who is a non-public servant, charge-sheet was submitted only against the Petitioner and not against the public servant. Clause (d) of schedule-II clearly speaks ''public servant'' and does not speak of non-public servant. Shri Mohapatra, learned Counsel for the Vigilance department, therefore, put stress on Clause (e) and submitted that an attempt made by a non-public servant for commission of offences under Sections 409, 419 and 420 as well as the offences mentioned in Chapter-XVIII of the Indian Penal Code can also be charged-sheeted by the Vigilance police. I am not able to persuade myself to agree with the submissions of the learned Counsel appearing for the Vigilance Department considering the fact that Clause (e) cannot be read in isolation and it has to be read along with Clause (a) or (b), (c) or (d). Clause (e) also specifies that attempts, abatements and conspiracies in respect of offences committed mentioned in items (a), (b), (c) and (d) by whomsoever committed. I am, therefore, of the view that Clause (e) has to be read along with Clause (d).

Undisputed facts in this case are that the vigilance proceeding was initiated against a public servant as well as the present Petitioner who is not a public servant for commission of offences under the Prevention of Corruption Act as well as Indian Penal Code. In course of investigation, the I.O. did not find any material for submitting a charge-sheet against the public servant but found some materials for submitting a charge-sheet against the Petitioner, a non-public servant, for commission of offences under Sections 468/471/420 of the Indian Penal Code. In view of the above, the only two options were open for the I.O. The first option was to handover the investigation to general police or submit charge-sheet against a non-public servant (Petitioner) in the Court where the case was registered on the basis of the F.I.R. The I.O. in this case has exercised the second option and filed charge-sheet in the Court of learned Special C.J.M. (Vigilance), Bhubaneswar against the Petitioner for commission of the aforesaid offences, F.I.R. initially having been sent to that Court and the case having been registered in the said Court. Shri Baug, learned Counsel for the Petitioner submitted that the Court of Special C.J.M. (Vigilance), Bhubaneswar had no jurisdiction to try the offences for which charge-sheet had been submitted and therefore should have transferred the case to a competent Judicial Magistrate for the purpose of taking further action, In this connection, learned Counsel relied upon the notification of this Court dated 9.4.1998 which is quoted below:

"ORISSA HIGH, COURT, CUTTACK NOTIFICATION Dated, Cuttack, the 9th April, 1998

No. 469/A : In exercise of the powers conferred by Sub-section (3) of Section 12 of the Code of Criminal Procedure, 1973 (Act II of 1974) and in partial modification of Court''s Notification No. 812 dated 21st Nov, 1994 the High Court of Orissa do hereby appoint the Additional Chief Judicial Magistrate in the district of Khurda on whom the powers of a Judicial Magistrate of the First Class have been conferred under Sub-section (3) of Section 11 of the said Code in Court''s Notification No. 468 dated 9.4.98 as Addl. Chief Judicial Magistrate in the districts of Puri and Naygarh to receive police reports in respect of cases instituted and investigated by the State Vigilance Branch. He shall transmit the charge sheets in respect of offences arising out of the Prevention of Corruption Act, 1988 to the concerned Special Judge and those in respect of other offences, he shall take cognizance and may either himself try or commit for trial or transfer them to competent Judicial Magistrates except the Chief Judicial Magistrates of the aforesaid districts for hearing and disposal. In respect of his district, he shall follow the same procedure.

Court''s Notification No. 812 dated 21.11.94 appointing the Chief Judicial Magistrate, Cuttack under Sub-section (2) of Section 12 of the Code of Criminal Procedure, 1973 (Act II of 1974) on whom powers of a Judicial Magistrate of the First Class have been conferred under Sub-section (3) of Section 11 of the said Code in Court''s Notification No. 808/A dated 21.11.94 as Additional Chief Judicial Magistrate in the districts of Nayagarh, Khurda and Puri to receive police reports in respect of cases instituted and investigated by the State Vigilance Branch stands modified accordingly.

By order of the High Court S.C. Mishra Registrar (Administration)

Xxx xxx xxx xxx.

Under the aforesaid notification this Court has appointed Additional Chief Judicial Magistrate in the district of Khurda on whom powers of Judicial Magistrate of the First Class have been conferred under Sub-section (3) of Section 11 of the Code of Criminal Procedure as the Additional Chief Judicial Magistrate in the district of Puri and Nayagarh to receive police reports in respect of cases instituted and investigated by the State Vigilance Branch. The said Magistrate has been empowered to transfer charge sheets in respect of the offences arising out of and under the Prevention of Corruption Act, 1988 to the concerned Special Judge and those in respect of other offences he has been empowered to take cognizance and try or commit for trial or transfer the same to competent Judicial Magistrate except Chief Judicial Magistrate for hearing and disposal. Here is a case where the learned Addl. C.J.M. otherwise known as Special C.J.M. (Vigilance) has accepted the charge-sheet submitted by the Vigilance Department and took cognizance. Shri Baug, learned Counsel appearing for the Petitioner referring to the aforesaid notification issued by this Court submitted that the said notification has to be read along with the notification dated 13.7.2001 issued by the Government of Orissa in the Home Department defining jurisdiction of different Vigilance Cells in the State and their powers which has been quoted earlier in this judgment. It was further contended by Sri Baug, learned Counsel for the Petitioner that Addl. C.J.M./Special C.J.M. (Vigilance), Bhubaneswar received the charge-sheet from the I.O. only against the Petitioner who is a non-public servant for commission of offences under Sections 468/471/420 of the I.P.C. and therefore could not have taken cognizance and should have sent the same to Anr. Magistrate First Class competent to dispose of the matter. It was also contended by the learned Counsel for the Petitioner that only when charge-sheet is submitted in respect of a non-public servant by Vigilance Department in respect of offences mentioned in Schedule-II, Clause (c) (i) to (ix) of the notification dated 13.7.2001, learned Addl. C.J.M./Special C.J.M. (Vigilance) will be competent to take cognizance and try the offences and in no other case. Learned Counsel for the Vigilance Department submitted that apart from the offences mentioned in Schedule-II (c) of the notification dated 13.7.2001, learned C.J.M. could also take cognizance for commission of offence under Sections 468/471/420 of the I.P.C. The notification issued by this Court dated 9.4.98 quoted in this judgment specifically states that the Additional C.J.M. in the district of Puri and Nayagarh can receive police reports in respect of cases instituted and investigated by the State Vigilance Branch. The said Vigilance Branch can only investigate into the cases where commission of offences under Schedule-II of the notification dated 13.7.2001 are alleged. As stated earlier, Clause (d) and (e) of Schedule-II relate to the offence committed by the public servant along with non-public servant under Prevention of Corruption Act and under Sections 409, 419 and 420 and Chapter XVIII of the I.P.C. and Clause (f) as held earlier relates to only Clause (d). I, therefore, find that there is some substance in the contention of the learned Counsel for the Petitioner '' that only when the Vigilance Department submits a charge-sheet against a non-public servant in relation to the offences mentioned in Clause (c) of Schedule-II of the notification dated 13.7.2001, Addl. C.J.M./Special C.J.M. (Vigilance), Bhubaneswar could take cognizance. This matter requires determination again by the learned Special C.J.M. (Vigilance). In this connection, two decisions of this Court which are relevant for the purpose of this case should also be taken note of. First decision is the case of Rajib Lochan Pradhan v. State reported in Vol. 58 (1984) CLT 1 and the other case is that of B.A. Kameswar Rao Vs. State of Orissa, . In both the cases, public servant and non-public servant were charge-sheeted and convicted by the trial Court for committing offence under Prevention of Corruption Act as well as the offences under the Indian Penal Code. The matter came to this Court and this Court acquitted the public servant of the charge for commission of the offence under Prevention of Corruption Act and held that the Special Judge (Vigilance) had no jurisdiction under Section 7(3) of the Criminal Law Amendment Act, 1952 to try offences under Sections 467 and 477-A of the Indian Penal Code and further held that trial of those offences is without jurisdiction and accordingly null and void. Since I feel the two decisions may have some relevance for the purpose deciding the issue, I have taken note of the said decisions.

In view of the discussions made above, I am of the view that the matter should be re-examined by the trial Court in the light of the discussions and observations made in the judgment.

Another point raised by the learned Counsel for the Petitioner is that the offence under Section 420 of the I.P.C. is not at all made out as none of the ingredients of the said Section have been established. Considering what has been discussed earlier, the matter should be remitted back to the trial Court for reconsideration as to whether the learned Special C.J.M. (Vigilance) had jurisdiction to take cognizance of the said offences and as to whether offence under Section 420 of the I.P.C. is made out for taking cognizance.

The Supreme Court while remitting the matter back to this Court had extended interim protection to the Petitioner. It is, therefore, directed that in the event the trial Court on reconsideration of the entire matter is of the view that it has jurisdiction to take cognizance and takes cognizance, the Petitioner shall be permitted to surrender and be released on bail on furnishing bail bond of Rs. 20000/- (Rupees twenty thousand) with one surety for the like amount to the satisfaction of the trial Court.

I, accordingly, quash the order dated 9.12.2002 passed by the learned Special C.J.M. (Vigilance), Bhubaneswar in Vigilance G.R. Case No. 17 of 2001 and remit the matter back to the said Court for reconsideration keeping in view the discussions and observation made in the judgment.

The CRLMC is accordingly allowed.