Surendra Nath Sahu vs State of Orissa

S. Panda, J.—In this application, challenge has been made to the order dated 12.8.2003 passed by the learned Special Judge, Vigilance, Bhubaneswar in T.R. No. 81/37 of 2005/2003.

The Petitioner is an accused in a proceeding under the Prevention of Corruption Act (hereinafter referred to as "the Act").

The FIR was lodged against the Petitioner at Sambalpur which was registered as Sambalpur Vigilance P.S. Case No. 87 of 2001 on the allegation of acquiring assets disproportionate to his known sources of income. During the course of investigation, it was ascertained that the Petitioner was deputed as a Junior M.V.I in the year 1999. While he was working as such at Laxmi Dunguri, Sambalpur on 8.12.2001 on being deputed to the Department of Transport, search was conducted by the Vigilance Officers of Sambalpur Vigilance Police Station at his residential premises and at the premises of his relations. The Investigating Officer submitted charge sheet against the Petitioner u/s 13(2) read with Section 13(1)(e) of the Act in the year 2003. The learned Special Judge (Vigilance), Sambalpur on 12.8.2003 took cognizance of the offence u/s 13(1)(e) read with Section 13(2) of the Act and issued processes.

While the matter stood thus, the Petitioner filed TRP (Crl.) No. 9 of 2004 before this Court for transfer of Sambalpur Vigilance P.S. Case No. 87 of 2001 from Sambalpur to Bhubaneswar which was disposed of on 15.2.2005 directing transfer of the said case from Sambalpur to Bhubaneswar. At present, the said case is pending before the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 81/37 of 2005/2003.

In this application, the Petitioner challenges the order of cognizance dated 12.8.2003 on the ground that the assets and properties which formed the basis of initiation of the case are situated at Bhubaneswar and Berhampur, but not a single property is situated within the territorial jurisdiction of Sambalpur Vigilance Police Station where the case was registered. Hence, the cause of action for the case of possession of disproportionate assets registered against the Petitioner was not within the territorial jurisdiction of the Vigilance Police Station, Sambalpur or the learned Special Judge, Vigilance, Sambapur and in spite of lack of such jurisdiction, the leaned Special Judge took cognizance of offences u/s 13(2) read with Section 13(1)(e) of the Act which is illegal and liable to be quashed.

The Petitioner is a permanent resident of Ganjam District and the properties belonging to him are situated at Berhampur and Bhubaneswar. Therefore, no part of cause of action arose at Sambalpur. Thus, the Sambalpur court had no territorial jurisdiction to take cognizance of the offence.

Admittedly, the Petitioner was appointed as a Junior M.V.I on deputation vide Commerce and Transport Department Office Order dated 9.12.1999. On being transferred he joined in the Office of Regional Transport Officer, Bargarh on 14.2.2000 and continued there till 11.12.2001 when he was relieved for joining his parent Department i.e. Directorate of Geology and during that period though the Petitioner served as a Junior MVI he had not drawn any salary at Bargarh as his LPC and Service Book had not been received.

The learned Standing Counsel for the Vigilance Department, on the other hand, submitted that there is sufficient material to show that the cause of action arose within the territorial jurisdiction of Sambalpur Vigilance Police Station and also the learned Special Judge (Vigilance), Sambalpur. Therefore, the order of cognizance taken by the learned Special Judge (Vigilance) is proper.

"Jurisdiction" is a DIGNITY which a man hath by a power to do justice in causes of complaint made before him. "Jurisdiction" of a validly constituted Court in its narrow and strict sense, connotes the limits which are imposed upon its power to hear and determine issues between the persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue, or (2) to the persons between whom the issue is joined, or (3) to the kind of relief sought, or to any combination of those factors. In its wider sense it embraces also the settled practice of the Court as to the way in which it will exercise its powers to hear and determine issues which fall within its "jurisdiction".

Chapter XIII of the Code of Criminal Procedure deals with jurisdiction of the Criminal Courts in inquiries and trials. The Chapter deals with the place of inquiry and trial in respect of offences only. As per Section 177, every offence would be tried by a Court within the local limits of whose jurisdiction it was committed "ordinarily". Section 178 is a special provision and not a general principle of law which deals with the place of inquiry and trial. The said provision is in fact supplemental to the 3rd clause of Section 181(4). Section 179 applies when the act or omission is an offence by reason of anything which has been done and of any consequence which has ensued. But where the act or omission is a complete offence irrespective of any consequence which has ensued, the provision has no application and the offence is to be inquired into and tried only by the Court under whose jurisdiction the act was committed as provided in Section 177 of the Code. Section 179 contemplates two aspects, namely, (i) that the offence has done an act; and (ii) that a consequence has followed from such act and the offender is being tried for the offence as a result of both the act and the consequence. In other words, the act by him does not by itself render him liable for the offence and that it is the act coupled with the consequence which constitutes the offence and makes him liable for it. Section 180 is an enabling provision and it is not curtailed by the directions contained in Section 177 of the Code. It applies not only to cases where both the acts in question are offences but also to cases where an act is an offence by reason to its relation of another which is not an offence, but which would be an offence only when the doer was capable of committing an offence. It is relevant to note here that the provision of Section 462 of the Code provides that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local areas, unless it appears that such error has in fact occasioned a failure of justice. Section 462 cures any defect due to want of legal jurisdiction unless there has been a failure of justice by the exercise of such irregular jurisdiction.

A complaint should ordinarily indicate that the offence complained of was committed within territorial jurisdiction of the Court in which the complaint is filed. It is on the terms of the complaint that the Magistrate has first to inform himself as to the nature of the case, and to see whether he has jurisdiction to entertain it.

The apex Court in the case of State of Madhya Pradesh and Others Vs. Shri Ram Singh, has held as follows:

The Act was intended to make effective provision for the prevention of bribe and corruption rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object....

Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it.

In the said decision, the apex Court relied on the decision in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, wherein it was held as follows:

A defect or illegality in investigation however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Code of Criminal Procedure. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Code of Criminal Procedure. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1) (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 Code of Criminal Procedure. which is in the following terms is attracted:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in - AIR 1944 73 (Privy Council) and - Lumbhardar Zutshi v. The King AIR 1950 PC 26 : 1950 Cri. LJ 644.

It further held:

In our opinion, therefore, when such a breach is brought to the notice of the Court at any early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such investigation as may be called, for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.

This Court has taken note of the decision of the apex Court in the case of V.K. Puri Vs. Central Bureau of Investigation, wherein similar view has been taken.

In the present case, the Petitioner was posted at Bargarh which was within the territorial jurisdiction of the Vigilance Court, Sambalpur.

To substantiate the charge, the prosecution must prove the following facts before it can bring a case u/s 13 of the Act, namely, (1) it must be established that the accused is a public servant. (2) nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his own sources of income, i.e. known to prosecution, and (4) it must prove, quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct u/s 13 of the Act is complete, unless the accused is able to account for such resources or property.

Therefore, in the Prevention of Corruption Act the offence of criminal misconduct u/s 13(1)(e) read with Section 13(2) are the possession of pecuniary resources of property disproportionate to the known sources of income for which the public servant cannot satisfactorily account.

In the present case, since the Petitioner was posted at Bargarh and during that time he possessed or acquired some property which was disproportionate to his known sources of income, the matter was investigated and he had not shown at the earliest how he was prejudiced by the investigation and the cognizance taken by the learned Special Judge (Vigilance), Sambalpur. On his application, the case was transferred from Sambalpur to Bhubaneswar whereafter some of the witnesses have already been examined on behalf of the prosecution.

Taking into consideration the above position of law and the failure of the Petitioner to show how he will be prejudiced if the order of cognizance stands, this Court is not inclined to interfere with the impugned order.

Accordingly, the Criminal Misc. case is dismissed.