Santosh Kumar Samal vs State Of Odisha (Vig.)

Arindam Sinha, J

Mr. Kanungo, learned senior advocate appears on behalf of revision petitioner. He submits, interference is sought with order dated 22nd March, 2023 made by the Special Judge, Vigilance in refusing to discharge the case against his client. The order was made on restoration by the High Court in an earlier revision filed.

He submits, his client and two others were accused of committing offence under, inter alia, section 13(2) read with section 13(1)(c)(d) in Prevention of Corruption Act, 1988 as the provisions stood prior to 26th July, 2018. The contract provided for advance payments made to the contractor and for settlement on final bill. On completion of the work the contractor raised bill of ₹48,00,000/- and in event excess payment allegedly ₹25,00,000/-had been made, it can be recovered. His client did no wrong and that is why the proceeding has been dragging for more than 13 ½ years. He relies on judgment of the Supreme Court in Vakil Prasad Singh v. State of Bihar, reported in (2009) 3 SCC 355, paragraph 15 (Manupatra print).

Mr. Das, learned advocate, Standing Counsel, Vigilance appears on behalf of State and submits, the Supreme Court in State of Tamil Nadu v. R. Soundirarasu, reported in (2023) 6 SCC 768, paragraph 80 referred to its earlier decision in Asian Resurfacing of Road Agency (P) Ltd. v. CBI, reported in (2018) 16 SCC 299 wherein it was held that interference in order of framing charges or refusing to discharge is called for in the rarest of rare case, only to correct patent error of jurisdiction.

On query from Court regarding evidence discussed in impugned order on measurements in the Measurement Book (MB) inflated by petitioner or any other, jointly or severally, he prays for adjournment.

Petitioner had applied for discharge. Being aggrieved by impugned order refusing the relief petitioner has challenged the same invoking this Court’s power of revision under section 401 in Code of Criminal Procedure, 1973. The provision empowers the High Court, in its discretion, to exercise any of the powers conferred on a Court of appeal by sections 386, 389, 390 and 391. Impugned order not being any of the orders mentioned in clauses(a),(b) and (c) under section 386, is an order that falls under clause(d) in the section. Powers of appellate Court by section 386 clause(d) is wide enough to alter or reverse impugned order. It is not necessary to further discuss the appeal Court’s powers under the other sections referred in section 401.

Adjournment is granted for State to firstly, demonstrate there is some evidence that correct measurements were taken to show that measurements recorded by, inter alia, petitioner in the MB were inflated and then arguments will be heard on law, including regarding declaration of law made by the Supreme Court in Vakil Prasad Singh (supra).

List on 6th March, 2024..

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