Narendra Kumar Sahoo vs State Of Odisha (Vigilance) & Anr

Dr. A. K. Mishra, J

In this Lis U/s.482 Cr.P.C. the following prayer has been made:-

“To quash the order of sanction dtd.1.7.2015 and further to set aside the order dtd.12.3.2018 under Annexure-7 passed in TR No.35 of 2015 of the Court of learned

Special judge (Vigilance), Bhubaneswar.â€​

The impugned order dtd.12.3.2018 of learned Special Judge, (Vigilance), Bhubaneswar reveals that the learned Special judge refused to discharge

the accused â€" petitioner U/s.239 Cr.P.C as there was sufficient material to the effect that the accused while accepting gratification, was

successfully trapped. Annexure-2 is the sanction order bearing No.1990 dtd.01.07.2015 issued by the Collector, Puri as required U/s.19(1)(c) of

Prevention of Corruption Act, 1988 (in short the „P.C. Act, 1988‟).

The case of prosecution in brief is that on 22.12.2014 on the receipt of F.I.R. from one Pravakar Behera Vigilance P.S. Case No.59 of 2014 was

registered. The allegation of informant was that the present petitioner â€" accused had demanded a sum of Rs.3000/-to convert the agricultural land to

homestead and considering the inability of the informant, agreed to take Rs.2300/-. On 20.12.2014 he had taken Rs.500 and it was agreed that balance

Rs.1800/- would be taken on 22.12.2014. Accordingly the vigilance officers conducted trap on 22.12.2014 at about 4.30 P.M. and recovered tainted

money of Rs.1800/- from the accused petitioner. After completion of investigation charge-sheet was submitted U/s.13(2) read with Section 13(1)(d)

and Section 7 of the P.C. Act, 1988.

Learned counsel for the petitioner Mr. Tusar Kumar Mishra made the following submissions:-

 (i) That while according sanction, the Collector, Puri had not applied his mind and had not called for a report from the Tahasildar, Gop who vide his letter bearing

No.3718 dtd.22.12.2014, had informed in writing that vigilance personnel had forcibly trapped the petitioner.

(ii) That on the fateful day at about 4.30 P.M., while the Tahasildar and accused â€" petitioner were discussing about some official work, the vigilance staff entered

inside and enquired about as to whether accused was dealing with the matter U/s.8(a) and 19(c) of the OLR Act and for that the trap story is implanted to harass the

petitioner.

(iii) That the informant on 19.11.2014 had applied for conversion of his agricultural land which was registered as OLR Case No.141 of 2014 and it was sent to the

Revenue Inspector, Nagpur under Gop Tahasil and for that on the date of trapping, the file was not pending with the Jr. Clerk, i.e. the present petitioner.

(iv) The copy of examination report bearing No.1053 dtd.16.5.2015 of State Forensic Science Laboratory, Rasulgarh, Bhubaneswar, reveals that phenolphthalein could

not be detected in the sodium carbonate solution contained in the glass bottle having right hand wash of accused (Ext.C) while the same was detected in respect of

one Suresh Kumar Jena vide Ext.B which unerringly proves the absence of petitioner during trap.

Mr. Niranjan Moharana, learned Addl. Standing Counsel (Vigilance) repelled the above contention stating that the letter of Tahasildar to the

sanctioning authority Collector, Puri unfolds that trap was conducted and tainted money was detected and recovered, as such it could not be said that

the sanction order was invalid and there was no material to implicate the accused petitioner.

In support of such contention, he has relied upon two decisions of Hon‟ble Supreme Court reported in (2009) 43 OCR (SC) 497, State of M.P. Vrs.

Virendra Kumar Tripathi and AIR 2012 SC 858, Dinesh Kumar Vrs. Chairman, Airport Authority of India and Another.

He also brought to the notice of this court Section 7(d) of P.C. Act, 1988 to contend that accused had received gratification as a motive or reward for

doing the act.

In Virendra Kumar Tripathi decision (supra) theirLordships of Hon‟ble Apex Court, at paragraph 6 held as follows:-

“6. xxxxxxxx. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal

on the ground of absence of / or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the Court a

failure of justice has in fact been occasioned thereby. In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this

failure is to be established yet to be reached since the case is at the stage of framing of charge whether or not failure has in fact been occasioned was to be

determined once the trial commenced and evidence was lead. In this connection the decisions of this court in State V. T. Venkatesh Murthy, 2004 (7) SCC 763 and

in Prakash Singh Badal V. State of Punjab, 2007(1) SCC 1 need to be noted.â€​

In the Dinesh Kumar decision (supra) their Lordships of Hon‟ble Apex Court, at paragraph 13 held as follows:-

“13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the

High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the

appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this court in Prakash Singh

Badal and not unjustified.â€​

In the light of the above law enunciated by the Hon‟ble Apex Court, the facts presented, prima facie shows that sanction order was issued of

which validity can be tested at the time of trial.

Whether petitioner â€" accused had demanded and accepted gratification as a motive, can also be considered during trial. So also the plea of defence

advanced here.

Section 239 Cr.P.C. envisages that if the charge, on consideration, is found not groundless, the accused cannot be discharged.

In the wake of above analysis, in my considered opinion, the impugned order does not suffer from any infirmity, hence interference at this stage is

uncalled for.

Accordingly the CRLMC stands dismissed.

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