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2008 DIGILAW 512 (ORI)

Laxmikanta Sahoo v. State of Orissa

2008-07-08

M.M.DAS

body2008
JUDGMENT M. M. DAS, J. — In this application under Section 482, Cr.P.C., the petitioner - Laxmikanta Sahoo, who is an accused in Vigilance G.R. Case No.7 of 2005 pending in the Court of the learned Special Judge (Vigilance), Sambalpur, has prayed for deleting his name from the charge-sheet submitted in the said case, or, in other words, has prayed for quashing the said pro¬ceeding, so far as it relates to the petitioner. 2. On a complaint lodged by one Oram Lakra on 15.02.2005 before the Superintendent of Police (Vigilance), Sambalpur through the Deputy Superintendent of Police (Vigilance), Rourkela making allegation that while the informant was attached to Spe¬cial Squad, Rourkela, he applied for the driving licence to the R.T.O., Rourkela in September, 2005, and received the learners driving licence. On 15.02.2005, he asked the dealing clear - Sanjit Kumar Ray of the R.T.O. office for issuance of a permanent driving licence and the said clerk demanded Rs.200/- over and above Rs.230/- already paid by him to the said clerk. A trap party proceeded to the Office of the R.T.O. on the next date. The F.I.R. was registered as Sambalpur Vigilance P.S. Case No.7 of 2005 under Section 13 of the Prevention of Corruption Act, 1988 (for short, ‘the Act’). The trap was led in the presence of the witnesses, namely, Shri Bijaya Kumar Mohanty, who was working as the S.D.O., National Highway Sub-Division, Rourkela and Shri Ananda Sankar Das, who was working as Drug Inspector, Rourkela. The informant was introduced to the said witnesses. He proceeded to the accused Sanjit Kumar Ray. After necessary preparation, the currency notes, which the complainant was going to offer to the said clerk - Mr. Ray, were treated with phenolphthalein powder by the A.S.I. and the same was kept in the left pocket of the com¬plainant, who was instructed to hand over the said amount to the accused, who was the dealing clerk in the Office of the R.T.O. All the witnesses gave their personal search and the witnesses stood at a little distance from the complainant. The petitioner, who was the Process Server of the R.T.O. office was at that time standing very close to Shri Ray, the Clerk in-charge of the driving licence section. The petitioner, who was the Process Server of the R.T.O. office was at that time standing very close to Shri Ray, the Clerk in-charge of the driving licence section. Shri Ray, received the said amount of Rs.200/- from the complainant and after counting the same with both his hands handed it over to the petitioner for keeping the same with him. The raiding party disclosed their identity. There¬after, on washing of hand of Shri Ray with the solution, his hand became pink in colour. 3. After completion of investigation, charge-sheet has been filed under Section 13(2) read with Sections 13(1) (d)/7/12 of the Act against the main accused Sanjit Kumar Ray and the present petitioner. 4. Mr. P.C. Kar, learned counsel for the petitioner sub¬mitted that there is absolutely no material found during investigation so as to implicate the petitioner with the alleged offence. He further submitted that even accepting the entire prosecution case as brought out during investigation, it would be seen that the provisions of Section 13 of the Act under which the charge-sheet has been filed cannot be attracted towards the petitioner. He, therefore, submitted that the charge framed against the petitioner should be set aside and the petitioner should be discharged from the case or in the alternatively, the criminal case should be quashed so far as it relates to the present petitioner. 5. Mr. D.K. Mohapatra, learned counsel for the Vigilance Department, on the contrary, submitted that though the petitioner may not be liable for the main offence of receiving illegal gratification, but he is an abettor to the offence. Mr. Mohapatra vehemently urged that the petitioner was found to be standing very close to the main accused. Mr. Ray, the main accused, received the money from the complainant and handed over the same to the petitioner asking him to keep the same and, therefore, a presumption under law can be drawn that the petitioner knowing that the main accused received the said amount as illegal grati¬fication abetted the offence by keeping the said amount with him, as instructed by the main accused. In support of his contention he relied upon Section 20(1) of the P.C. Act. Mr. Mohapatra also relied upon the decision in the case of Girja Prasad (Dead) by L.Rs. In support of his contention he relied upon Section 20(1) of the P.C. Act. Mr. Mohapatra also relied upon the decision in the case of Girja Prasad (Dead) by L.Rs. v. State of M.P. AIR 2007, SCW, 5589, where Section 4 of the P.C. Act, 1947 (since repealed) was under consideration, the said Section 4, being in pari materia with Section 20 of the Act. 6. Mr. P.C. Kar, learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of K. Subba Reddy v. State of Andhra Pradesh, AIR 2007 SCW, 6205 and a deci¬sion of this Court in the case of Jaganmaya Mishra v. State of Orissa, 2008 (I) OLR, 249. In the case of Girja Prasad (Supra), the appellant before the Supreme Court challenged the judgment passed by the Madhya Pradesh High Court in a Criminal Appeal by which the High Court set aside the order of acquittal recorded by the trial Court and convicted the appellant for an offence punishable under Section 161, I.P.C. and Section 5 (1) (d) read with Section 5(2) of the P.C. Act, 1947 (since repealed). The Supreme Court in the said decision after interpreting the old Section 4 of the P.C. Act, 1947 with regard to presumption, where a public servant accepted gratification other than legal remuneration and further inter¬preting Section 161 of the Indian Penal Code and Section 5(1) of the P.C. Act, 1947 came to hold that it was of no consequence whether the accused had accepted the amount for and on behalf of another person. Once it is proved that he accepted the amount, he cannot escape from criminal liability of a specious ground that he was made “scapegoat” or was merely “innocent carrier”. The Su¬preme Court further held that it is also immaterial whether the accused was or was not in a position to oblige the complainant by preventing his suspension. 7. The facts involved in the case of Girja Prasad (supra) disclose that the complainant therein was asked by P.W.4 - Ramna¬rain Rajoria that either he should pay an amount of Rs.500/- through accused Girja Prasad or should suffer suspension. The complainant alleged to have paid Rs.300/- on the same day to the accused Girja Prasad and assured him to pay the remaining amount of Rs.200/- on October 5th, 1983 at Jabalpur. The complainant alleged to have paid Rs.300/- on the same day to the accused Girja Prasad and assured him to pay the remaining amount of Rs.200/- on October 5th, 1983 at Jabalpur. Thereafter, he lodged the complaint in writing and the trap was led. According¬ly, on October 5th, 1983, the accused was called to a hotel where two currency notes of Rs.100/- denomination each which was kept in the pocket of the complainant duly treated with chemical powder was handed over to the accused, when the accused asked the complainant as to whether he had brought the amount. In such back-drop, it was argued before the Supreme Court on behalf of the accused that he has not demanded any illegal gratification over and above his legal remuneration and he accepted the money for some one else. Considering such facts, the Supreme Court affirmed the judgment passed by the High Court by which the order of acquittal recorded by the trial Court was reversed. 8. It is, thus, clear that the facts of the present case are totally different from the facts in the case of Girja Prasad (supra) as in the said case, there was a clear allegation of the prosecution that the demand was made by the accused and the money was received by him. In the said case, also, the accused Girja Prasad was attributed with the knowledge that he is receiving illegal gratification though for someone else. In the instant case, however, there is no material to show that the present petitioner, either had the knowledge with regard to the demand of the main accused or himself demanded the complainant to pay Rs.200/-. The only material available is that the petitioner was standing close to the main accused and on the main accused, Mr. Ray, asking him to keep the currency notes, which were received by him on demand from the complainant, the petitioner received the said currency notes from the main accused and kept it. 9. Mr. Mohapatra, learned counsel for the Vigilance Department submitted that even if the petitioner cannot be said to be the main accused, who demanded illegal gratification, but he is an abettor of the offence. 10. Section 107 of the Indian Penal Code defines abetment of a thing as follows : “107. 9. Mr. Mohapatra, learned counsel for the Vigilance Department submitted that even if the petitioner cannot be said to be the main accused, who demanded illegal gratification, but he is an abettor of the offence. 10. Section 107 of the Indian Penal Code defines abetment of a thing as follows : “107. Abetment of a thing - A person abets the doing of a thing, who - First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omis¬sion, the doing of that thing.” 11. In the instant case, none of the ingredients of the said section has been either alleged or supported by any material produced by the prosecution. Thus, the petitioner cannot be held to be an abettor of the offence alleged. In the case of K. Subba Reddy (supra), on similar circumstances, the Supreme Court, on analysing the facts of the said case, finding that there is no material to show about the knowledge of the accused No.2 regard¬ing the money being bribe and P.W. 1 having only stated that the accused No.1 asked him to hand over the money to the accused No.2, if he had gone out for checking of the shops and the ac¬cused No.2-K Subba Reddy had no role to play in the occurrence, came to the conclusion that the material is not sufficient to hold the accused - K. Subba Reddy guilty of the offence under Section 7 of the Act. In the case of Jaganmaya Mishra (supra), this Court had the occasion to deal with a case involving similar facts, where the petitioner therein received money on being asked by his superior, being the Revenue Inspector. This Court analysing the provisions of Sections 7 and 13 of the Act, finding that the Revenue Inspector demanded the money and the informant paid the said amount and the petitioner’s role was limited to only counting the said money on instruction of the Revenue Inspector, who is his immediate authority, had no other role to play in the occurrence, quashed the order of taking cognizance of the above offences against the petitioner. 12. 12. With regard to the contention of Mr. Mohapatra that a presumption can be drawn with regard to the culpability of the petitioner in commission of the alleged crime under Section 20 of the Act, it is felt necessary to refer to Section 20 (1) of the Act, which reads as follows : “20. Presumption where public servant accepts gratification other than legal remuneration :- (1) Where in any trial of an offence punishable under Sec¬tion 7 or Section 11 or clause (a) or clause (b) of Sub-section (1) of Section 13 it is proved that an accused person has accept¬ed or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person it shall be presumed, unless the contrary is proved, that he accept¬ed or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) & (3) xx xx xx” 13. A bare reading of the above provision clearly goes to show that such presumption can be drawn where prosecution proves that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other per¬son, any gratification (other than legal remuneration) or any valuable thing from any person, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward as mentioned in Section 7 of the Act. Such contingency, as contemplated under Section 20 of the Act does not arise in the facts of the present case, since there is no material brought before this Court by the prosecution, to show that the petitioner has accepted or obtained for himself or for any other person any gratification other than legal remuneration. No doubt, the petitioner on being handed over the currency notes by the main accused. Mr. No doubt, the petitioner on being handed over the currency notes by the main accused. Mr. Ray with instruction to retain the same, he being a Process Server in the office of the R.T.O. and a subordinate to the main accused, who was a clerk-in-charge of the Licence Section, in obedience to the instruction given by the main accused, received the said currency notes. 14. Thus, considering the prosecution case, as made out against the present petitioner, this Court is of the view that the petitioner cannot be termed to be an accused in Vigilance G.R. Case No.7 of 2005 pending in the Court of the learned Spe¬cial Judge (Vigilance), Sambalpur. 15. In view of the above, the proceeding in Vigilance G.R. Case No. 7 of 2005 is quashed so far as it relates to the peti¬tioner- Laxmikanta Sahoo. However, the said Vigilance G.R. Case shall proceed against the other accused Sanjit Kumar Ray. The CRLMC is accordingly allowed. CRLMC allowed.