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2008 DIGILAW 76 (ORI)

S. J. Alli v. State of Orissa (Vigilance)

2008-01-25

S.C.PARIJA

body2008
JUDGMENT S. C. PARIJA, J.— This application under Section 482 Cr.P.C. has been filed by the petitioner invoking the inherent jurisdiction of this Hon’ble Court to quash the order of cognizance dated 24.3.2007 passed by the Special Judge (Vigi¬lance) : Berhampur, Ganjam in G.R.Case No. 12 of 2005, taking cognizance of offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (“P.C.Act” for short) and Section 120-B, I.P.C. 2. The main contention of the petitioner is that the impugned order of cognizance suffers from non-application of mind and has been mechanically passed without considering the materials on record and taking all relevant facts and circumstances into consideration and prima facie satisfying itself with regard to involvement of the petitioner in the commission of alleged of¬fence under Section 13(2) read with Section 13(1)(d) of the P.C.Act and Section 120-B I.P.C. The petitioner in this regard relies on a decision of this Court in the case of Gundicha Behera and another v. State of Orissa reported in (2003) 26 OCR 730 wherein it has been held that in absence of prima facie satisfaction regarding availability of materials for taking cognizance, the order taking cognizance becomes vulnerable and the Court proceeded to quash the order. 3. In the instant case, the Special Judge (Vigilance) : Berhampur, Ganjam in his order dated 24.3.2007 has not made any mention with regard to the prima facie satisfaction regarding availability of materials for taking cognizance against the petitioner. The impugned order of cognizance is extracted below : “Case record is received on transfer from C.J.M., Court, Berhampur and taken to my file. Register. Perused the F.I.R. Charge-sheet, case diary and connected its papers. Cog. of offence under Sec. 13(2)(i)(d) r/w. 13(1)(d) P.C.Act/120-B, IPC is taken against the accused persons. Issue summons to the accused persons fixing 3.5.2007 for appearance.” 4. In a decision of this Court reported in the case of Tribikram Misra v. State of Orissa and another, reported in 67 (1989) CLT 729, a Division Bench of this Court while dealing with the sustainability of the order of cognizance in absence of prima facie satisfaction, has held as follows : “At the stage of cognizance, however, the Court is not required to enter into a detailed discussion of the merits or demerits of the case so as to find out if the allegations and the charges are true or not. It is nevertheless desirable for the Court to see that innocent persons are not roped in so as to suffer the rigour of a trial with the sword of Damocles hanging on his head, merely because some of the witnesses make bald statements implicating him in criminal offences. It is also settled law that the Magistrate taking cognizance of offences should not act as an automation and believe and swallow what a few witnesses state about a person having been involved in a criminal offence, but has to apply his judicial mind and test the materials on record with eagle eyes so as to discern the complic¬ity or otherwise of the person concerned. For this purpose, he is bound to give free play to his sense of criticism. Unless this course is adopted at the initial stage of a criminal case, it is very likely that innocent persons would be involved in criminal cases, may be falsely and without any basis. It is also to be borne in mind that unless this salutary caution is exercised, crafty litigants will be encouraged to implicate innocent persons or their rivals in criminal cases by setting up a few band fol¬lowers to speak against such persons.” 5. In the case of Punjab National Bank v. Surendra Prasad Sinha, reported in AIR 1992 SC 1815 , the Supreme Court has observed that judicial process should not be an instrument of oppression or needless harassment. There lies the responsibility and duty on the Magistrate to find out whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the accused persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the rele¬vant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the pri¬vate complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. 6. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. 6. Keeping in view the above principles with regard to the duty of the Magistrate in taking cognizance, it can be said that the impugned order does not disclose the prima facie satisfaction of the trial Court regarding availability of materials for taking cognizance against the petitioner, inasmuch as the subjective satisfaction of the trial Court with regard to the complicity of the petitioner in the alleged offence has not been disclosed while proceeding to take cognizance of the offence under Section 13(2) read with Section 13(1)(d) of the P.C.Act and Section 120-B, I.P.C. 7. For the aforesaid reasons, I allow this application under Section 482 Cr.P.C. and quash the impugned order of cogni¬zance dated 24.3.2007 passed by the Special Judge, Vigilance : Berhampur, Ganjam in G.R.Case No. 12 of 2005 and remit the matter back to the trial Court to peruse the materials on record, in¬cluding the charge-sheet and arrive at a prima facie satisfaction whether the materials are available for taking cognizance of the offence against the petitioner or not and thereafter proceed with the case in accordance with law. The Crl.M.C. is accordingly allowed. Crl. M.C. allowed.