Sri Daud Sagar vs State of Orissa

P.K. Tripathy, J.—Petitioner, who is an accused in G. R. Case No. 2116 of 1996 in the Court of S. D. J. M., Bolangir for the offence alleged u/s 120B/469/420/34, I. P. C. read with section 9 of the Orissa Conduct of Examinations Act, 1988, has preferred this application u/s 482 of the Code of Criminal Procedure, 1973 (in short, ''the Code'') with the prayer to quash the order of cognizance on the ground of non-existance of a prima facie case against the petitioner.

Petitioner was the Chief Examiner of 2nd Paper English subject at Bolangir Centre in the Annual Higher Secondary Examination ( + 2 Examination) of 1996. The two other Co-accused persons were respectively the Examiner and the Scrutinizer. The F. I. R. lodged by the Controller of Examinations. Council of Higher Secondary Education, Orissa, is with the allegations that by their conduct the petitioner and the co-accoused persons have exhibited their mischief mind of improper valuations and for that purpose they hatched a criminal conspiracy and committed the aforesaid offences. After completion of investigation, charge sheet has been filed for the said offences and learned S. D. J. M., Bolangir on 14-5-2000 took cognizance of the said offences. It may be noted that, after being arrested on 2-7-1996, petitioner was released on bail as per the order of the Sessions Judge, Bolangir on 13-8-1996. After submission of charge sheet though notice was issued, yet the accused persons entered their appearance in the Court below on 18-11-2000.

Another relevant fact stated by the petitioner is that because of the resentment of the affected students and number of Public Interest Litigations filed in the High Court, O. J. C. No. 5116 of 1996 was registered and Justice V. Gopalaswamy, a former Judge of Orissa High Court, was requested to inquire into the allegations and to submit his report. Petitioner has stated that, order dated 17-11-1999 in O. J. C. No. 5116 of 1996 clearly goes to show that during such inquiry Justice Gopalaswamy did not find any act of mischief or conspiracy with the accused persons including the petitioner and he reported that the lapses was due to the negligence because of the circumstances which was beyond the control of the accused persons. The said order of this Court has been filed by the petitioner as Annexure-2.

Learned counsel for the petitioner argued that since a prima facie case for any of the aforesaid offences (of which, cognizance has been taken) has not been established from the statement of the witnesses and when in a judicial proceeding (i.e., in O. J. C. No. 5116 of 1996) this Court has also not recommended for taking any action against the petitioner or the co-accused persons, therefore the proceeding of G. R. Case No. 2116 of 1996 be quashed as against the petitioner.

The order sheet of the Court below shows that after appearance of the accused persons on 18-11-2000, the case was posted to 12-1-2001 for supply of police papers. All the offences are triabe by the Magistrate of the First Class. Keeping in view the punishment prescribed for the offences u/ss. 468 and 420, I. P. C., the further proceeding of the case is to be governed by Chapter-XIX of the Code, and section 239 provides for discharge of the accused in the absence of a prima facie case or if the charge shall be found to be groundless. At that stage the accused has a right of audience if he invokes that provision. Since the accused has already entered appearance in the Court below and there is specific provision for consideration of his contention regarding absence of prima facie case, therefore this Court does not find any reason to invoke the inherent power to consider the contention raised by the petitioner Accordingly, the application u/s, 482 of the Code stands rejected. If so advised, the petitioner may raise such points and pleas before the learned S. D. J. M. at the stage under sections 239/240 of the Code. If such points shall be raised, it is needless to mention that keeping in view the provision u/s. 239 of the Code, learned Magistrate shall afford an opportunity of hearing to the petitioner before passing appropriate order. This Court has purposefully not discussed the facts and the statement of witnesses with a view to avoid prejudice to either of the parties at the stage of consideration of the application u/s. 239, Cr. P. C, if shall be moved by the petitioner or at the stage of consideration of charge u/s. 240 of the Code. Therefore, the trial Court shall do well to consider the case on its own merit and due application of mind to the facts of the case and the ingredients of the offence to find out if charge should be framed against the accused persons or they should be discharged.

The Criminal Misc. Case is accordingly dismissed with the aforesaid observation. Send back the L. C. R. to the Court below immediately.

"Crl. misc. case dismissed.