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2009 DIGILAW 160 (ORI)

STATE OF ORISSA v. MANAGOBINDA SAHOO

2009-02-25

I.MAHANTY

body2009
JUDGMENT : Indrajit Mahanty, J. - In the present application filed u/s 378 Cr.P.C, leave has been sought for to file an appeal against the order and Judgment of acquittal dated 31.5.2000 passed by the Learned Special Judge (Vigilance), Jaipur in Vigilance G.R. Case No. 98 of 1997. 2. Shorn of unnecessary details, according to the Learned Counsel for the Vigilance Department, the prosecution case is that on 30.9.1997 at about 2.45 P.M. the Vigilance Raiding Party raided the business premises of the accused and on physical verification of stock of distribution register were produced but no stock register of both sugar and kerosene could be produced. 3. Based on the result of such raid, the accused-Opposite Party stood for trial for offence u/s 7 and 9 of the Essential Commodities Act. The defence plea was complete denial and that the business premises of the accused has never been raided nor verified by any of the vigilance staff. The Trial Court concluded the trial and passed orders of acquittal on the following two essential grounds: (i) The prosecution evidence fails short of proving the mens rea or the intention of the accused relating to culpability thereof in the matters of non-maintenance or irregular maintenance of the registers and records. (ii) The investigation had been done by a witness (P.W.7) who is an interested witness for the prosecution case is, therefore, susceptible to reasonable doubt having regard to the principles decided by the Hon'ble Supreme Court in the case of Jamuna Chaudhary and Others Vs. State of Bihar, . 4. Mr. Mohapatra, Learned Counsel for the Vigilance Department raised various grounds and laid stress on the observations of the Learned Trial Court in paragraph-II thereof where the Learned Trial Court came to conclude that "however, from the facts of the case the evidence led there seems some negligence in matters of maintenance of registers and display of the price board etc." Mr. Mohapatra submits that this finding itself is adequate for the purpose of prosecution and should not have been ignored. Apart from that Sri Mohapatra gives much stress on the evidence of P.W.7-Inspector of police (Vigilance) who is a member of the Raiding Party. 5. Mohapatra submits that this finding itself is adequate for the purpose of prosecution and should not have been ignored. Apart from that Sri Mohapatra gives much stress on the evidence of P.W.7-Inspector of police (Vigilance) who is a member of the Raiding Party. 5. Considering the submissions made by the Learned Counsel for the Vigilance Department, I am afraid that since admittedly, the investigation of the case had been conducted by the P.W.7 who was a party to the vigilance raid and a witness for the prosecution. In this respect, in my view, the Trial Court has correctly placed reliance upon the Judgment in the case of Jamuna Chaudhary (supra) and come to conclude that investigation of a case by a witness is not desirable, inasmuch as, there is possibility of tainted investigation in order to bolster up a prosecution case so as to create evidence which may enable the Court to record a conviction. The Hon'ble Supreme Court in paragraph-II of the aforementioned case has clearly laid down that "the duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth." This principles of law is embedded in order to ensure that the rule of law survives and an accused is entitled in law to a fair and impartial investigation. Therefore, in order to ensure the fair and impartial investigation, it also must be ensured that investigation is carried out by a person who is absolutely impartial, unbiased and unmotivated. The rule of law makes it unthinkable to allow a witness to a crime to himself/herself became the investigator into the said crime. Therefore, the requirement of the Investigating Officer to bring out "the real unvarnished truth" would never been possible by the said Investigating Officer who is also a witness to the said proceeding. The rule of law makes it unthinkable to allow a witness to a crime to himself/herself became the investigator into the said crime. Therefore, the requirement of the Investigating Officer to bring out "the real unvarnished truth" would never been possible by the said Investigating Officer who is also a witness to the said proceeding. Apart from the above, it is also a fact that an Investigating Officer into an offence under the Essential Commodities Act, must also record the statement of the members of the Raiding Party and, therefore, if a member of the said Raiding Party himself becomes the Investigating Officer, it would give rise to a situation where the Investigating Officer would be recording his own statement as a witness to the alleged crime and this by no stretch of imagination, can be permissible in law. 6. For the aforesaid real reasons as noted hereinabove, I am of the considered view that this is a fit case where prayer for leave to appeal against an order of acquittal should not be entertained and should be consequently rejected. Accordingly, the CRMC stands rejected. Final Result : Dismissed