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2005 DIGILAW 191 (ORI)

Kamala Das v. State of Orissa

2005-03-15

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. : This is an application under Section 482, Cr.P.C. for quashing the order of cognizance dated 11.9.2002 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R.Case No. 85 of 2002 arising out of Bhubaneswar Vigilance P.S.Case No. 22 of 2001. 2. Basing on the FIR lodged by one B.K.Das, Inspector of Vigilance Cell, Cuttack on 25.7.2001 before the Superintendent of Police, Vigilance, Bhubaneswar Division, Vigilance P.S.Case No. 22 of 2001 was registered for the offence under Sections 13(2) read with Section 13(1)(d) of the P.C.Act and Section 120-B of the I.P.C. On completion of investigation of the said case, charge-sheet was submitted on 7.7.2002 arraying the present petitioner and one Sri R.K.Routray as accused. After perusing the materials on record and case diary, learned Special Judge (Vigi¬lance), Bhubaneswar by order dated 11.9.2002 took cognizance of the offence under Sections 13(2), 13(1)(d) of the P.C.Act and Section 120-B of the IPC and directed issue of process against the accused persons. Aggrieved by the said order, the petitioner has filed the present application under Section 482, Cr.P.C. with a prayer to quash the above noted order dated 11.9.2002 of the learned Special Judge (Vigilance), Bhubaneswar. 3. According to Mr. P.K.Routray, learned counsel for the petitioner the impugned order is unsustainable as the materials on record do not establish any prima facie case for the alleged offences against the petitioner. He submits that the decision for purchase of Iron Fortified Salt as a component of Mid-day ration under Supplementary Nutrition Programme (S.N.P.) and Mid-day Meal (M.D.M.) programme in all the districts of the State was taken by the State Government and pursuant to that decision, two agreements were executed between M/s. Prince International Pvt. Ltd., Bhubaneswar and the State Government and the concerned firm supplied the I.F. Salt. He submits that the petitioner who was the Minister of Health and Family Welfare and Women and Child Welfare Development for a brief period i.e., from 6.3.2000 to 9.7.2001 simply acted in accordance with the decision of the State Govern¬ment and there was no occasion for her to extend any official favour to M/s. Prince International Pvt. Ltd., Bhubaneswar or to accept any undue favour or gratification from the said firm. Mr. Mr. Routray submits that on the floor of the assembly of the State, the present Government has also admitted that the I.F.Salts were continuously supplied and used by the beneficiaries and that the said I.F.Salts was not deficient in quality or quantity. He produced the copies of the analyst report, notings in the file of the Government and the question and answer of the assembly etc. to support his contention and submits that those documents prove the innocence of the petitioner. He alleges that the Vigilance authorities without taking the facts, circumstances and those documents into consideration submitted charge-sheet in an arbi¬trary manner. Mr. Routray relies on the case of Mukesh Dhirubhai Ambani v. State of Orissa and another,* (2005) 30 OCR 245 and M/s. Zandu Pharmaceutical Works Ltd. v. Md. Sharaful Haque and others, AIR 2005 SC 9 to fortify his contention. 4. Mr. D.K.Mohapatra, learned Standing Counsel (Vigilance), on the other hand, submits that the materials on record constitute a clear prima facie case for the alleged offences and so, the impugned order of cognizance cannot be quashed. He submits that documents and statements are available in the case diary to show that the petitioner defying the reports of the Collectors, notes of the Secretary of the Department and the order of the Chief Minister directed for continuance of supply of the I.F.Salt and asked the Collectors of the districts to receive those stocks, which prima facie indicate that she extended unusual official favour to the concerned firm. Regarding the documents produced by the learned counsel for the petitioner, Mr. Mohapatra submits that at the stage of cognizance or charge, defence plea and evidence are not to be considered. In this regard he places reliance on the case of State of Orissa v. Debendra Nath Padhi,** (2005) 30 OCR (SC) 177. 5. Section 482, of the Code of Criminal Procedure reads thus : “482. Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This Section, therefore, envisages three circumstances under which the inherent power may be exercised. This Section, therefore, envisages three circumstances under which the inherent power may be exercised. (i) To give effect to an order under the Code; (ii) To prevent abuse of the process of the Court; (iii) To otherwise to secure ends of justice. Courts have been given wide powers under Section 482, Cr.P.C. to do right and to undo wrong in course of administration of justice on the principle that when law gives a person anything it gives him that without which it cannot exist. In the case of M/s. Jhandu Pharmaceuticals Works Ltd. (supra), the Apex Court while analysing the powers of the Court under Section 482, Cr.P.C., observed thus : “xxxx While exercising powers under the Section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permis¬sible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” 6. The observation of the Apex Court noted above, clearly suggests that the Courts have wide power to quash a proceeding if such proceeding amounts to abuse of the process of the Court or otherwise it is necessary to secure ends of justice. The observation of the Apex Court noted above, clearly suggests that the Courts have wide power to quash a proceeding if such proceeding amounts to abuse of the process of the Court or otherwise it is necessary to secure ends of justice. It also suggests that when from the allegations and materials placed by the prosecution, no case is made out, then continuance of the proceeding would amount to abuse of the process of the Court. 7. In the case of State of Orissa v. Debendra Nath Padhi (supra), reference was made to a larger Bench of the Apex Court to decide as to whether at the stage of cognizance/framing of charge, the materials filed by the accused can be considered. Their Lordships after examining the provisions of Section 227 and 228 of the Cr.P.C. and considering the findings and ratio laid down in the earlier cases, came to hold that at the stage of cognizance/framing of charge, the materials filed by the accused are not to be considered and that the Court should consider only the materials placed before it by the prosecution. It was, howev¬er, indicated that scrutiny of materials placed by the prosecu¬tion before the Court should not be in the form f a roving or fishing enquiry. It was also candidly clarified that if the materials produced by the prosecution even if accepted in toto, do not reveal any prima facie case for the alleged offence, then the proceeding of the case should be quashed as otherwise, it will amount to abuse of the process of the Court. 8. In view of the clear dictum of the Apex Court in the above noted cases, the documents and materials now produced on behalf of the petitioner cannot be perused or taken into consid¬eration. It is only to be seen if the materials produced by the prosecution accepted in its entirety reveal prima facie case for any of the alleged offences. Admittedly, the petitioner was Minister of Health and Family Welfare and Women and Child Welfare Department during the relevant period and in that capacity, she had passed orders on the file of the Department. Admittedly, there was an agreement between M/s. Prince International Pvt. Ltd. and the State Govern¬ment for supply of I.F.Salt to all the districts of the State for Mid-day meal programme. Admittedly, there was an agreement between M/s. Prince International Pvt. Ltd. and the State Govern¬ment for supply of I.F.Salt to all the districts of the State for Mid-day meal programme. The allegation of the prosecution is that in spite of the reports of the Collector that the salt was not conducive for the beneficiaries and was excess in quantity and in spite of the note of the Health Secretary, the petitioner passed orders for supply of the said I.F.Salt. It is also revealed that the Chief Minister of the State passed orders to reduce the quan¬tity of I.F.Salt for the beneficiaries from 5 gram to 2 gram per day and directed to revise the agreement accordingly. It is alleged that in spite of the order of the Chief Minister, no step was taken for revising the agreement or for stopping or reducing the supply of quantity of I.F.Salt, rather direction was given by the petitioner to all the Collectors to receive the I.F.Salt supplied by M/s. Prince International Pvt. Ltd. 9. Learned counsel for the petitioner submits that in view of the order of this Court available at Annexure-14, the petitioner had no other way than to direct the Collectors to receive the stock. Learned Standing Counsel (Vig.) on the other hand, submits that Annexure-14 would show that the Department of the petitioner did not file any parawise comments or rejoinder in the said writ petition, thereby facilitated M/s. Prince Interna¬tional Pvt. Ltd. to obtain an order from this Court. Be that as it may, this controversies will be sorted out by the trial Court after examining the evidence and materials placed by the parties during trial. At the stage of taking cognizance, there is no scope either for the Court of cognizance or the Court considering the petition under Section 482, Cr.P.C. to examine the materials produced by the parties and to decide as to which version is correct. The only thing such Court is empowered is to peruse the materials produced by the prosecution and find out if on accepting those materials in toto, prima facie is made out. In the present case, the records and case diary do contain materials to constitute prima facie case for the alleged offences and after looking at the materials one cannot infer that there is absolute¬ly no case against the petitioner. In the present case, the records and case diary do contain materials to constitute prima facie case for the alleged offences and after looking at the materials one cannot infer that there is absolute¬ly no case against the petitioner. In that situation, the ratio laid down in the case of Mukesh Dhirubhai Ambani (supra) relied on by the learned counsel for the petitioner is not applicable as in that case no material was there at all to constitute a prima facie case against the petitioner. 10. Considering the above noted facts and circumstances, I feel that continuance of the proceeding in T.R.No. 85 of 2002 pending in the Court of learned Special Judge (Vigilance), Bhuba¬neswar will neither be abuse of the process of the Court nor quashing of the proceeding of that case at this stage is essen¬tial for the ends of justice. 11. In the result, therefore, the prayer of the petitioner to quash the proceeding in T.R.Case No. 85 of 2002 is rejected. 12. CRLMC is accordingly dismissed. CRLMC dismissed.