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2007 DIGILAW 922 (ORI)

Jaganmaya Mishra v. State of Orissa

2007-12-13

M.M.DAS

body2007
JUDGMENT M. M. DAS, J. — The order dated 31.1.2006 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R.No. 7 of 2006 where-under he has taken cognizance of offence under Section 13 (2) read with Sections 13(1)(d)/7 of the Prevention of Corrup¬tion Act, 1988 (for short, ‘the Act’) against the petitioner and another, is impugned in this application under Section 482 Cr.P.C. 2. An F.I.R. was lodged on 27.2.2005 by one Ramakanta Nayak, inter alia, alleging that after a Civil Suit bearing No. 897 of 1990 being decreed on 27.11.2004, the father of the informant filed a Mutation Case, being Mutation Case No. 1501 of 2005 on 14.2.2005. The Tahasildar, Balasore on receiving the application for mutation from the father of the informant, directed the Revenue Inspector-Narayan Chandra Behera to enquire and submit a report by 21.2.2005. The informant visited the Office of the Revenue Inspector and requested him to expedite the inquiry. The Revenue Inspector-Narayan Chandra Behera demanded an illegal gratification of Rs. 500/- to do the needful. Upon such demand being made, the informant stated his inability to pay the amount. The R.I. thereupon demanded at least Rs. 400/- to give the report. The informant apprehending that the R.I. may give an adverse report, handed over Rs. 100/- to him on that day. The R.I. thereupon threatened that if the balance amount of Rs. 300/- is not paid to him by the coming Monday, he will give an adverse report to the Tahasildar. Apprehending that, after so much of labour, the father of the informant may not get the fruits of the decree, he agreed to pay Rs. 300/- to the R.I. on 28.2.2005. 3. Upon receipt of the above F.I.R., the S.P., Vigilance finding that a cognizable offence is made out under the Act, directed Shri S.K.Mohanty, Inspector of Vigilance to take up investigation and lay a trap. From the report of the Inspector of Vigilance, it appears that on 28.2.2005 the Inspector of Vigi¬lance, Shri S.K.Mohanty, in presence of other staff laid the trap. One of the witnesses, namely, Sankarsan Mohallik, Forester was instructed to follow the informant to the Office of the R.I. maintaining a reasonable distance, to hear the conversation. After following due procedure of personal search of the witnesses and demonstration of the use of phenolphthalein powder and reac¬tion with Sodium Carbonate solution the tainted money of Rs. One of the witnesses, namely, Sankarsan Mohallik, Forester was instructed to follow the informant to the Office of the R.I. maintaining a reasonable distance, to hear the conversation. After following due procedure of personal search of the witnesses and demonstration of the use of phenolphthalein powder and reac¬tion with Sodium Carbonate solution the tainted money of Rs. 300/- was wrapped in a white paper and kept in the pocket of the informant who was instructed to deliver the same to the R.I. on demand only. On the money being handed over to the R.I.-Narayan Chandra Behera, others entered into the room and the Inspector disclosed his identity. 4. The accused-Narayan Chandra Behera stated that he has not accepted any bribe. On enquiry from the informant, it was ascertained that the R.I. demanded the money and directed his staff to keep the same and the money was accepted by the present petitioner. When the hands of both the R.I.-Narayan Chandra Behera and the present petitioner were washed with Sodium Carbon¬ate solution, it was seen that on washing of the hand of the present petitioner, the colour of the solution turned light-pink. However, the colour of the solution did not change in the case of the R.I. 5. After completion of the investigation, charge-sheet has been filed under the afore-mentioned sections of the P.C.Act as stated earlier and the learned Special Judge, Vigilance, Bhubaneswar on receiving the case record from the C.J.M., Balasore, perused the same and took cognizance of the said offences against the petitioner and the Revenue Inspector-Narayan Chandra Behera. 6. Mrs. Sujata Jena, learned counsel for the petitioner vehemently argued that the order taking cognizance of the afore¬said offences against the petitioner is contrary to law and not based on any material produced by the Vigilance Police. She drew the attention of the Court to the First Information Report wherein the informant has clearly stated that demand for payment of Rs. 500/- as illegal gratification was made by the accused-Narayan Chandra Behera and there is no material to show that the present petitioner has ever demanded any amount from the inform¬ant as illegal gratification. She drew the attention of the Court to the First Information Report wherein the informant has clearly stated that demand for payment of Rs. 500/- as illegal gratification was made by the accused-Narayan Chandra Behera and there is no material to show that the present petitioner has ever demanded any amount from the inform¬ant as illegal gratification. She further submitted that no doubt the present petitioner being subordinate to the other co-accused-Narayan Chandra Behera, on being directed by the said co-accused, to receive the money from the petitioner, received the same and kept it on the table of the R.I. under a stamp-pad. Necessarily when the hands of the present petitioner were washed the colour of the Sodium Carbonate solution changed. But, in order to make out a case under Sections 7 and 13 of the P.C.Act, it is mandato¬ry on the prosecution to show prima facie material against the petitioner that there was a demand made by the petitioner for illegal gratification and it was received by him in compliance with his demand. She, therefore, submitted that there being absolutely no material either in the F.I.R. or in the statements recorded during investigation of various persons that the peti¬tioner made a demand to the informant for the illegal gratifica¬tion, even if it is considered that the petitioner received the said tainted currency notes, the same would not amount to an offence under the afore-mentioned sections. 7. Learned counsel for the State on the contrary submitted that even if there may not be any material to show that the present petitioner demanded illegal gratification from the informant but since he admittedly received the amount from the informant, which admittedly was paid as bribe, the same would constitute an offence under Sections 7 and 13 of the Act. 8. Before delving into the question as to whether the impugned order of taking cognizance of the aforesaid offences against the petitioner is liable to be quashed or not, it would be profitable to deal with the question as to whether this Court should exercise its inherent power under Section 482 Cr.P.C. for quashing an order of cognizance. 9. 8. Before delving into the question as to whether the impugned order of taking cognizance of the aforesaid offences against the petitioner is liable to be quashed or not, it would be profitable to deal with the question as to whether this Court should exercise its inherent power under Section 482 Cr.P.C. for quashing an order of cognizance. 9. It is now well settled law that where the allegations set out in the complaint or the charge sheet did not constitute any offence, it is competent for this Court to quash the said order by exercising its inherent jurisdiction under Section 482 Cr.P.C. 10. It is, therefore, now left to this Court to consider as to whether the allegations set out in the F.I.R. and the charge sheet constitute an offence under the aforementioned provisions of the Act against the petitioner. Upon such consideration, if it would be concluded that no offence under the aforementioned sections of the Act has been made out against the petitioner, it would be apt for this Court to quash the impugned order under which cognizance of the said offences has been taken against the petitioner. 11. As already stated, charge sheet has been submitted alleging commission of offence under Sections 13 (2)/13(1)(d)/7 of the Act. Bereft of the irrelevant portions, for the purpose of this case, Sections 7, 13 (1)(d) and 13(2) of the Act are quoted hereunder : “7. Public servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person .......... shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.” “13. shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.” “13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct : (a) to (c) xx xx (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or xxx xxx xxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.” 12. From the provisions of the act, the followings are to be prima facie shown by the prosecution : (i) The accused is a public servant. (ii) He accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification which does not amount to a legal remuneration with a motive or reward to do any official act, and (iii) While exercising his official functions accepts any gratification to show favour to any person. 13. The admitted case of the prosecution is, as already narrated above, that the informant was demanded to pay Rs. 500/- by the R.I., Narayan Chandra Behera (accused) for giving a favourable enquiry report in connection with Mutation Case filed by his father. Showing his inability to pay, the said R.I. demanded a payment of at least Rs. 400/-. The informant, on the date of demand paid Rs. 100/- and he was directed by the accused R.I. to pay the balance amount of Rs. 300/- on the following Monday. This information was lodged upon which, finding that a cognizable offence has been committed, a trap was laid by the Vigilance Authorities. On the fateful day, the currency notes amounting to Rs. 100/- and he was directed by the accused R.I. to pay the balance amount of Rs. 300/- on the following Monday. This information was lodged upon which, finding that a cognizable offence has been committed, a trap was laid by the Vigilance Authorities. On the fateful day, the currency notes amounting to Rs. 300/- were tainted with “phenolphthalein powder” and an independent witness was directed to follow the informant and hear the conversation between the accused Narayan Chandra Behera and the informant. The said independent witness, namely, Sankarsan Mohallik was examined during the investigation and his statement was recorded under Section 161 Cr.P.C. From his statement, it is revealed that on the informant entering into the office of the R.I., Narayan Chandra Behera, asked the informant whether he has brought the money or not. On being answered in the affirmative by the informant and on being asked as to whether his work has been done or not, the accused Narayan Chandra Behera stated that the work has not been done and if the money is paid, the report will be submitted. The informant took out the currency notes to give it to the said accused and the said accused Narayan Chandra Behera asked the informant to hand over the money to the present petitioner and keep the money on the table for that purpose. He also asked the present petitioner to count the money. The informant kept the money on the table which was counted by the present petitioner and again kept on the table. Thereafter, the said witness along with other members of the raiding party entered the room. 14. It is, therefore, clear from the prosecution case, as per the charge sheet, that it was the R.I.-Narayan Chandra Behera who demanded the money and the informant paid the said to him. No doubt, the present petitioner only counted the money kept on the table as per the direction of his immediate authority, Narayan Chandra Behera. If the prosecution story is to be accepted, an offence under Section 7 of the Act is prima facie made out against the accused-Narayan Chandra Behera as he has demanded the money and has obtained the same as illegal gratification for doing an official act. 15. If the prosecution story is to be accepted, an offence under Section 7 of the Act is prima facie made out against the accused-Narayan Chandra Behera as he has demanded the money and has obtained the same as illegal gratification for doing an official act. 15. The present petitioner, except counting the currency notes paid by the informant and keeping it on the table of the other co-accused, as directed by the co-accused, had no role to play in the occurrence. There is no allegation by the prosecution that the petitioner demanded any illegal gratification and in lieu thereof received the money paid by the informant for doing any official act. 16. This Court is, therefore, satisfied that there is no prima facie case whatsoever made out against the present petitioner, of committing offence under the above mentioned sections of the Act. Thus, the impugned order by which cognizance of offences under the above sections has been taken against the petitioner is liable to be quashed and the said order, however, shall be held to be legal and valid as against the co-accused Narayan Chandra Behera. 17. In the result, therefore, the impugned order dated 31.1.2006 passed in T.R.No. 7 of 2006 by the learned Special Judge (Vigilance), Bhubaneswar taking cognizance of the offences under the aforementioned sections of the Act, as it relates to the present petitioner, is quashed. The said order, however, is not interfered with as it relates to the other co-accused Narayan Chandra Behera. The learned Special Judge (Vigilance), Bhubaneswar shall proceed with the case only against the co-accused Narayan Chandra Behera and the petitioner shall be delet¬ed from the array of accused in the case. The CRLMC is accordingly allowed. CRLMC allowed.