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2006 DIGILAW 36 (ORI)

Nimain Charan Pattnaik v. State of Orissa

2006-01-20

A.K.PARICHHA

body2006
JUDGMENT A. K. PARICHHA, J. : The petitioner, who is an accused in Vigilance P.S. Case No.37 of 1998 corresponding to T.R. Case No.7 of 1996 of the Court of learned Special Judge (Vigilance), Bhuba¬neswar for the offences under Sections 13(2) and 13(1) (C) of P.C. Act read with Sections 409 and 34, I.P.C., has filed this petition under Section 482, Cr.P.C. to quash the above noted pro¬ceeding basically on the grounds that there is no prima-facie case for the alleged offences, but the proceeding has been mali¬ciously initiated after his retirement and that inordinate delay has been caused in disposal of the proceeding. 2. Mr. Bijan Ray, learned Senior Counsel, appearing for the petitioner submitted that the petitioner, who has retired since 1988 and is now virtually in his death bed has been maliciously implicated for an alleged incident of 1982. He argued that considering the want of prima facie case, inordinate delay that has occasioned in disposal of the proceeding and the meager¬ness of the amount of alleged misappropriation, it would be just and proper to quash the proceeding. In support of his contention, Mr. Ray relied on the cases of Rajkishore Mohanty v. State of Orissa, 79 (1995) CLT 88; Omprakash Saha v. M. Mohanty and anoth¬er, 1998 (I) OLR 340 and State of West Bengal and others v. Swapan Kumar Guha and others, AIR 1982 SC 949 . 3. Mr. D. K. Mohapatra, learned Standing Counsel (Vigi¬lance), on the other hand, submitted that the fact of misappro¬priation of public fund by the petitioner and his associates was discovered in the year 1988 and accordingly, the F.I.R. was initiated in that year and because the matter was an old one and a thorough investigation was required, charge-sheet was submitted in the year 1992. He submitted that the delay in disposal of T.R. Case is basically due to the stay order that has been passed in the present misc. case. He further argued that the materials on record establish a clear prima-facie case against the petitioner and there is no hint of mala fide intention of the investigating agency or the prosecution any where. 4. The cardinal principle in the matter of cognizance is that a Court shall not take cognizance of the offences alleged in the charge-sheet unless prima-facie materials for such offences are available. 4. The cardinal principle in the matter of cognizance is that a Court shall not take cognizance of the offences alleged in the charge-sheet unless prima-facie materials for such offences are available. So, if an offence is disclosed, then cognizance is to be taken by the competent Court and in such situation the High Court under Article 226 of the Constitution or u/s 482, Cr.P.C. will not normally interfere because justice requires that person who commits an offence has to be bought to book. This view finds support from the ratio laid down in the cases of Swapan Kumar Guha (supra) and Omprakash Saha (supra) relied on by the peti¬tioner. Now it is to be seen whether in the present case prima-facie materials for the alleged offences are available or whether charge-sheet has been submitted against the petitioner with malafide intention. 5. The prosecution case in brief is that there was heavy flood in Jagatsinghpur area in the year 1982-83 and a number of houses were damaged in that flood. The State Government decided to help the flood victims in the construction of their houses and raised a scheme to supply building materials to them through Jagatsinghpur Block. The petitioner was at that time working as B.D.O. of that Block. It is alleged that without supplying bricks, cement and other materials, the petitioner, his Junior Engineer and the supplier prepared forged vouchers and misappro¬priated an amount of Rs.8,000/-. The allegation is clearly sup¬ported by the F.I.R. and statements of some of the witnesses. Whether the allegation is true or false will be decided after the trial. No doubt, the F.I.R. was registered after the retirement of the petitioner, but there is no material any where to suggest that F.I.R. or investigation was actuated with malice against the petitioner. 6. The admitted fact is that charge-sheet was submitted in the year 1992 and T.R. Case before the Vigilance Judge was regis¬tered in 1996. The Certified copy of the order sheet shows that the petitioner appeared on 21.4.1999 and was released on bail. Thereafter, he filed the present misc. case in the year 2000 and got trial of the case stayed. In such situation, the inordinate delay in disposal of the case cannot be attributed to the prose¬cution alone and the ratio in the case of Rajkishore Mohanty (supra) cannot be applied to the present case. Thereafter, he filed the present misc. case in the year 2000 and got trial of the case stayed. In such situation, the inordinate delay in disposal of the case cannot be attributed to the prose¬cution alone and the ratio in the case of Rajkishore Mohanty (supra) cannot be applied to the present case. Considering the aforesaid facts, circumstances and the legal position, this Court is of the view that there is no good ground for quashing the charge-sheet or the proceeding of T.R. Case No. 47 of 1996 pending in the Court of Special Judge (Vigilance), Bhubaneswar. However, taking note of the submission of learned counsel for the petitioner that the petitioner is a very old and critically ill, learned Special Judge (Vigilance), Bhubaneswar would do well to dispose of the case as expeditiously as possible preferably within a period of one year from the date of receipt of this order. 8. CRLMC is accordingly disposed of. CRLMC disposed of.