Subash Chandra Das vs State of Orissa

L. Mohapatra, J.—This application u/s 482 of the Code of Criminal Procedure has been filed challenging the order dated 31.7.2002 passed by the Special Judge, Vigilance, Bhubaneswar in T.R. No. 153 of 1999 rejecting the petition of the Petitioner for discharging him.

From the record it appears that one Santosh Sahoo lodged an F.I.R. before the S.P., Vigilance, Cuttack alleging therein that consolidation operation was going on in his village. During such consolidation operation Sabik plot No. 1409 extending to an area of Ac. Order 02 decimals which is a homestead land was in his possession, but the Petitioner who is working as an Amin in Consolidation Office had recorded a part of it in the name of one Madhu Sahu and Budhi Sahu of his village. When the informant came to know about the same he met the Petitioner and on being questioned it is alleged that the Petitioner demanded rupees five hundred for correction of record as well as map. It is further alleged in the F.I.R. that said rupees five hundred was to be paid on 28.11.98. After receipt of the said F.I.R. a trap was laid. During trap the Petitioner was arrested and the case was registered for commission of offences under Sections 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act. After investigation charge-sheet was submitted for commission of the aforesaid offences. When the matter was pending before the learned Special Judge (Vigilance), Bhubaneswar an application was filed by the Petitioner to discharge him on the basis of the statement of the informant recorded u/s 164 Code of Criminal Procedure by the Chief Judicial Magistrate and the said petition having been rejected in the impugned order, the present application u/s 482 Code of Criminal Procedure has been filed.

Learned Counsel for the Petitioner challenged the order basically on the following grounds:

(i) There is No. material to presume that the Petitioner has committed the offence as alleged;

(ii) Statement of the informant recorded u/s 164 Code of Criminal Procedure

could not have been brushed aside by the learned Special Judge, Vigilance while dealing with the Petitioner for being discharged;

(iii) There was No. sanction and in absence of sanction the learned Special Judge could not have taken cognizance of offences; and (iv) Power to investigate the charge u/s 17 of the Prevention of Corruption Act does not lie with the Investigating Officer to investigate into the case and submit charge-sheet.

In support of the contentions raised above, Learned Counsel appearing for the Petitioner also relied on some decisions.

Shri Mohapatra, Learned Counsel appearing for the Vigilance Department, contended that there were materials on record on the basis of which presumption can be drawn that the accused-Petitioner had committed the offence and that No. sanction was necessary in a case where accused was caught in a trap. It was also contended that the statements of the informant recorded u/s 164 Code of Criminal Procedure at his behest could not have been taken into consideration by the Special Judge and the officer who investigated the case had authority to do so and therefore there is No. reason for this Court to interfere with the impugned order.

In order to appreciate the contention of the Learned Counsel for the Petitioner, it is necessary to look into the allegations made in the F.I.R. There is clear allegation in the F.I.R. that for correction of record and map the Petitioner demanded rupees five hundred as bribe and on the basis of such allegations made in the F.I.R. a trap was laid. There is No. dispute that during trap the Petitioner accepted money and was arrested. The above fact gets support the statements of witnesses who had been examined during investigation and there cannot be dispute about the same. The only point in this regard raised before this Court is whether the statement of the informant recorded u/s 164 Code of Criminal Procedure could be taken note of or not. In this connection, reference may be made to a decision of the Apex Court in the case of Jogendra Nahak and Others Vs. State of Orissa and Others, . The Apex Court in the aforesaid decision observed as follows:

Section 164(1) cannot be interpreted as empowering a Magistrate to record the statement of a person unsponsored by the investigating agency. The fact that there may be instances when the investigating office would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is No. answer to the question whether any intending witness can straightaway approach Magistrate for recording his statement u/s 164 of the Code. Even for such witnesses provisions are available in law, e.g. the accused can cite.them as defence witnesses during trial or the Court can be requested to summon them u/s 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) there is No. special reason why the Magistrate should be burdened with the additional task of recording the statements of all and sundry; who may knock at the door of the Court with a request to record their statements u/s 164 of the Code. On the other hand, if door is opened to such persons to get in and if the Magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the Magistrate Courts for the purpose of creating record in advance for the purpose of helping the culprits.

In vies of what has been decided by the Apex Court as quoted above, there cannot be doubt in mind that the statement of the informant recorded u/s 164 Code of Criminal Procedure by the learned Magistrate cannot be looked into and the learned Special Judge has rightly held so in the impugned order. In this connection, reference may also be made to another decision of this Court in the case of Banikanta Panigrahi and three others v. State of Orissa act another, reported in (2002) 22 O.C.R. 75. Relying on the aforesaid Apex Court decision as mentioned above, this Court also observed that recording of statement of witness u/s 164 Code of Criminal Procedure at the behest of parties is not permissible. Having found that the statement recorded u/s 164 Code of Criminal Procedure at his own request cannot be accepted in view of the decision referred to above and there are other materials on record to prima facie show that the Petitioner had demanded bribe and was caught in a trap laid by the Vigilance department while taking bribe, it cannot be said that on the basis of the above material, No. presumption can be drawn that the Petitioner had committed the offence. On the other hand, materials collected during investigation apart from the statement of the informant clearly make out a prima facie case with regard to commission of offence. The aforesaid finding answers first two points raised by the Learned Counsel for the Petitioner.

Learned Counsel for the Petitioner relying on a decision of the Patna High Court in the case of Ram Avtar Sah Vs. State of Bihar, submitted that the facts alleged in the said case are similar to the present case and therefore it has full application to the facts of the present case. On perusal of the said judgment, it appears that the Appellant therein had been convicted for commission of offence u/s 5(2) of the Prevention of Corruption Act and while hearing the appeal, on consideration of evidence available on record the Court held that the genesis of occurrence was doubtful and therefore the Appellant in that case was acquitted of the charge. Consideration of materials at the time of entertaining an application for discharge is completely different than that of the materials at the time of writing judgment at the end of trial. Where at the end of trial Court is required to see that evidence laid before it points at guilt of accused beyond all reasonable doubt, at the time of framing of charge or entertaining an application of the accused for being discharged, the Court is only required to see on the materials available before it whether presumption can be drawn with regard to commission of offence. I am, therefore, of the view that the said decision has No. application to the present case.

Learned Counsel appearing for the Petitioner referred to another decision of this Court in the case of Narendra Chand Mehta Vs. State of Orissa, and submitted that the learned Special Judge, Vigilance having not given reason for rejecting the petition of the Petitioner, the matter should be remanded back to the learned Special Judge for reconsideration. In the aforesaid case, application u/s 482 Code of Criminal Procedure had been filed challenging the order framing charge. This Court held that the Court had not indicated what are the materials available to presume commission of offence for which the accused was being charged and directed the Magistrate for reconsideration of the question of framing of charge. So, far as the present case is concerned, the impugned order itself shows the reasons for rejecting the application filed by the Petitioner and therefore the aforesaid decision has No. application to the facts of the present case.

The Apex Court in the case of Union of India (UOI) Vs. Prafulla Kumar Samal and Another, while interpreting Section 227 of Code of Criminal Procedure observed as follows:

The Judge while considering the question of framing the charges u/s 227 of the Code has the undoubted powers to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceed with the trial.

The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

In exercising his jurisdiction u/s 227, the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total ''effect of the evidence and the documents produced before the Court, any basis infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. State of Bihar Vs. Ramesh Singh, and K.P. Raghavan and Another Vs. M.H. Abbas and Another, and Almohan Das and Others Vs. State of West Bengal, .

If the present case is examined in the light of what has been observed by the Apex Court in the aforesaid decision it will be found that the learned Special Judge has not committed any illegality in rejecting the petition of the Petitioner.

The third point raised by the Learned Counsel for the Petitioner is that in absence of sanction the learned Special Judge could not have taken cognizance of the offences. As it appears from the case diary produced before the Court, the Petitioner was working as Amin under a Sub-Contractor in the establishment of the Consolidation Camp and he was discharged from service with effect from 8.2.1999 by the Deputy Director, Consolidation, Jagatsinghpur. Since the Petitioner had already been'' discharged from service, by the time cognizance of offence was taken, he ceased to be a public servant and therefore No. sanction was necessary to be obtained.

So far as the last point raised by the Learned Counsel for the Petitioner with regard to competency of the Investigating Officer is concerned, except taking that point in the note of argument, No. material has been placed before this Court to show that the Investigating Officer who investigated into the case was not competent to investigate the same.

However, Shri Mohapatra, learned Standing Counsel (Vigilance Department) has produced a copy of the notification dated 17.4.1993 issued by the Government of Orissa in the Department of Home where it has been clarified that the authority vested in Vigilance Inspectors in the orders of the Government of Orissa in the Home Department No. 2618/HC dated 29th July, 1970 and No. 46337/HC dated the 13th October, 1977 to investigate the cases under the Prevention of Corruption, 1947 is still in force under the new Prevention of Corruption Act, 1988. In view of such notification, the last point raised by the Learned Counsel for the Petitioner also fails.

Accordingly, I do not find any merit in the application which stands dismissed.