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2008 DIGILAW 875 (ORI)

PREMANIDHI SETH v. STATE OF ORISSA

2008-09-24

A.K.PARICHHA

body2008
JUDGMENT : A.K. Parichha, J. - The Petitioner, who is an accused in C.T.R. No. 29 of 2008 in the file of Learned Special Judge (Vigilance), Sambalpur arising out of Sambalpur Vig. P.S. Case No. 58 of 2005 for offences under Sections 13 (2), 13 (1) (d) of Prevention of Corruption Act, 1998 and Sections 420 and 120-B, Indian Penal Code, has filed this petition u/s 482, Code of Criminal Procedure to quash the proceeding of the above noted case on the ground that the materials on record prima facie do not make out any of the offences alleged and there has been total no application of mind in the matter of grant of sanction for prosecution, and therefore, continuance of the proceeding will amount to abuse of the process of the Court. 2. Mr. Samir Kumar Mishra, Learned Counsel appearing for the Petitioner submits that cases were initiated by the Vigilance Department simultaneously regarding purchase of weighbridge by Regulated Market Committees (in short, 'RMCs') of Attabira, Bargarh, padmapur and Sambalpur, but prosecution was not launched against any of the Chairmans of such Committees on the plea that no case is made out against them, whereas, the present Petitioner, who was Sub-Collector-cum-Chairman, RMC, Sambalpur was charge-sheeted although the allegation and materials in all these cases were same. He states that the above noted RMCs purchased weighbridges from the same dealer at the same rate during the same time span; so, it was illegal and unfair on the part of the investigating agency and the sanctioning authority to launch prosecution against the Petitioner-Chairman. According to him, the Petitioner had no direct dealing with the supplier-firm and the materials reveal no malafide intention or misuse of power by the Chairman. In essence, Mr. Mishra demands quashing of the above noted proceeding against the Petitioner on the ground of lack of material to constitute prima facie case for the offences as well as discrimination in the matter of prosecution. 3. Mr. D.K. Mohapatra, Learned Standing Counsel (Vig.) stoutly opposes the prayer of the Petitioner stating that launching of prosecution against a particular accused depends on the facts, circumstance and evidence available and therefore, the proceeding against the present Petitioner cannot be quashed on the plea that the Chairmen of the other RMCs were not charge-sheeted. 3. Mr. D.K. Mohapatra, Learned Standing Counsel (Vig.) stoutly opposes the prayer of the Petitioner stating that launching of prosecution against a particular accused depends on the facts, circumstance and evidence available and therefore, the proceeding against the present Petitioner cannot be quashed on the plea that the Chairmen of the other RMCs were not charge-sheeted. He states that the materials collected during investigation reveal a clear prima facie case against the Petitioner for commission of offence u/s 13(2), 13(1)(d) of Prevention of Corruption Act, 1998 and Sections 420, and 120-B, Indian Penal Code and therefore, launching of prosecution was justified. Mr. Mohapatra produced the case diaries of Sambalpur Vigilance P.S. Case No. 6 of 2006, Sambalpur Vigilance P.S. Case No. 70 of 2005, Sambalpur Vigilance P.S. Case No. 58 of 2005 and File No. 39 of 2004 relating to Ex-Secretary of RCM, Attabira. 4. Before examining the merit of the rival contentions of Learned Counsel for the parties, it will be profitable to recount the prosecution case in Sambalpur Vigilance P.S. Case No. 58 of 2005, which relates to the present Petitioner. 5. In order to facilitate proper weighment of agriculture produces in different market yards for RMC, Sambalpur, the Secretary of RMC, Sambalpur requested the Administrative Officer, Orissa State Agriculture Marketing Board, Bhubaneswar for permission to purchase weighbridges. In response to the said request, the A.O., Orissa State Agriculture Marketing Board, Bhubaneswar permitted the Secretary, RMC, Sambalpur to purchase the weigh bridges and other weighing instruments at the competitive price following due tender procedure. The Director, Orissa State Agriculture Marketing Board, Bhubaneswar also issued blanket permission to purchase adequate number of weighbridges and other Instruments required at the marketing yards. It is alleged that neither the Secretary nor the Chairman of RMC, Sambalpur ascertained the DGS and D rate or the actual cost of the weighbridge and on 19.10.2001 on the suggestion of the Secretary of the RMC, the Petitioner, who was the Chairman of RMC, Sambalpur approved the lowest bid amount of M/s. Weigh Care, SRIT Colony, Sambalpur who had quoted Rs. 4,57,000/- per weigh bridge of 30 MT capacity, without following the tender procedure and violating the provisions of OGFR and OPWD Code. It is alleged that because of such purchase of the three weigh bridges and four Electro Mechanical Conversion Kits by the Secretary and the Petitioner, there was a loss of Rs. 4,57,000/- per weigh bridge of 30 MT capacity, without following the tender procedure and violating the provisions of OGFR and OPWD Code. It is alleged that because of such purchase of the three weigh bridges and four Electro Mechanical Conversion Kits by the Secretary and the Petitioner, there was a loss of Rs. 9,16,760/- to the state exchequer. It is specifically alleged that the Petitioner and the Secretary of the RMC by entering into criminal conspiracy with M/s. Weigh Care allowed illegal pecuniary gain to the said firm and cheated the RMC/Government. 6. The case diaries produced by the Learned Standing Counsel (Vigilance) shows that similar allegation was raised against the Secretary and Chairman of RMC, Padampur in Sambalpur Vigilance P.S. Case No. 70 of 2005 against the Secretary of the RMC, Bargarh in Sambalpur Vigl. P.S. Case No. 6 of 2006 and against the Secretary and Chairman of Attabira RMC in Sambalpur File No. 39 of 2004. But after investigation, charge-sheet was submitted against the Secretary of RMC, Padampur and Secretary, RMC, Bargarh for the offence under Sections 13(2), 13(1)(d) of Prevention of Corruption Act and Sections 420, and 120-B, Indian Penal Code and final report was submitted in File No. 39 of 2001 indicating that there was insufficient evidence against the accused persons and simply Departmental Proceeding was contemplated against Sri Sasanka Sekhar Sahani, Ex-Secretary of RMC, Attabira. After investigation, the I.O. has observed that he did not find any Irregularity or malafide intention committed by the Chairman of Attabira RMC, Bargarh RMC and Padmapur RMC. It is worthwhile to note from the contents of all these case diaries and file that during the relevant point of time, the weighbridges were purchased by the RMCs, Sambalpur, Padampur, Attabira and Bargarh from the same firm, namely, M/s. Weigh Care, Sambalpur at the same rate, i.e., Rs. 4,57,000 adopting the same procedure. So, there was no scope to say that only the Chairman of Sambalpur RMC by making similar purchase had malafide intention and cheated the RMC or the Government. It appears from the FIR and case diary that allegations were basically against the Secretary of the RMCs, but only in the case of RMC, Sambalpur, a deviation was made and the Chairman of RMC was roped in. Such approach on the part of the Investigating agency was not legal, fair and amounted to discrimination. It appears from the FIR and case diary that allegations were basically against the Secretary of the RMCs, but only in the case of RMC, Sambalpur, a deviation was made and the Chairman of RMC was roped in. Such approach on the part of the Investigating agency was not legal, fair and amounted to discrimination. The sanctioning authority also did not consider these aspects at all before granting sanction. 7. Section 482, of the Code of Criminal Procedure envisages three circumstances under which Inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. The Courts, therefore, have inherent powers apart from express provision of law, which are necessary for proper discharge of function and duties imposed upon them by law and such power is to be exercised ex-debito justiae to do real and substantial justice for administration of which alone Courts exist. So, if the Court is satisfied that there is great miscarriage of justice or abuse of process of law or required statutory provision has not been complied with or there is failure of justice, then it becomes its duty to have it corrected at the inception. Analysing the scope and power of Section 482 of the Code of Criminal Procedure, the Apex Court in the case of S.W. Palanitkar and others Vs. State of Bihar and another, observed that to prevent judicial process from being an instrument of oppression or harassment, exercise of Inherent power is not only desirable but necessary also so that the judicial forum of the Court may not be allowed to be utilized for any oblique motive. 8. As has been indicated in the foregoing paragraphs, on the same set of allegations, facts and circumstances the Investigating agency concluded that no prima facie case is made out against the Chairmen of RMC, Bargarh, RMC, Padmapur and RMC, Attabira, but in the case of RMC, Sambalpur they choose to prosecute the Chairman. When there was no prima facie case against the other Chairmen, it cannot be said that there was prima facie case against the Petitioner. In such a situation, continuance of the criminal proceeding In C.T.R. No. 29 of 2008 in the file of Learned Special Judge (Vigilance), Sambalpur arising out of Sambalpur Vig. When there was no prima facie case against the other Chairmen, it cannot be said that there was prima facie case against the Petitioner. In such a situation, continuance of the criminal proceeding In C.T.R. No. 29 of 2008 in the file of Learned Special Judge (Vigilance), Sambalpur arising out of Sambalpur Vig. P.S. Case No. 58 of 2005 will be abuse of the process of the Court and law because such prosecution will be against the norms of equity, good conscience and judicial procedure. 9. In the result, therefore, the proceeding in C.T.R. No. 29 of 2008 in the file of Learned Special Judge (Vigilance), Sambalpur arising out of Sambalpur Vig. P.S. Case No. 58 of 2005 is quashed against the Petitioner and the Crl. MC is allowed. Final Result : Allowed