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2010 DIGILAW 268 (ORI)

SAROJ KUMAR MOHAPATRA v. STATE OF ORISSA

2010-04-09

A.S.NAIDU

body2010
JUDGMENT : A.S. Naidu, J. - The order dated 16.8.2004 passed by learned Special Judge (Vigilance), Bhubaneswar in T.R. No. 71 of 1997 is assailed in this Criminal Revision. By the said order, the petition filed by the Petitioner to discharge was rejected. 2. The Petitioner was working as an Inspector in O.M.V.D. On 13.8.1986 the house of the Petitioner was searched on the strength of a search warrant issued by the Chief Judicial Magistrate, Cuttack and an inventory was made in respect of the house-hold articles and other movables found during the search. After conducting the investigation, an F.I.R. was lodged alleging that the Petitioner being a public servant has acquired assets disproportionate to the known sources of income to the tune of Rs. 1,16,404.40 and a case u/s 13(2) read with 13(1)(e) of Prevention of Corruption Act was registered and investigation was taken up. After completion of investigation, charge-sheet was submitted. Considering the materials available in the case diary, cognizance of the offence punishable u/s 13(2) read with 13(1)(e) of the P.C. Act, 1988 was taken. While the matter stood thus, the Petitioner filed an application u/s 239, Code of Criminal Procedure praying for discharge. Learned Special Judge after discussing the materials available on record, by the impugned order dated 16.8.2004 came to the conclusion that perusal of the police papers like F.I.R., details of the income-expenditure, assets statement, statement of witnesses, sanction order and other documents reveal sufficient materials to presume that the accused was guilty, consequently the petition praying for discharge was rejected. 3. Learned Counsel for the Petitioner assails the said order mainly on the ground that the allegations levelled are mischievously false and that sufficient materials are there with the Petitioner to reveal that his income is much more than what has been assessed by the Vigilance Department. It is submitted that as the learned Special Judge failed to appreciate the said facts and did not take into consideration the materials produced by the Petitioner, it is a fit case where the order refusing to discharge the Petitioner needs to be interfered with. 4. The submission made by the Petitioner is stoutly repudiated by learned Counsel for the Vigilance Department. 4. The submission made by the Petitioner is stoutly repudiated by learned Counsel for the Vigilance Department. It is submitted that while taking cognizance of offence, the court below need not take into consideration the documents other than which are available in the case diary and as such, the impugned order suffers from no infirmity at all. 5. Heard learned Counsel for the parties at length. Perused all the materials. Admittedly, the accused is a public servant and he has been charge-sheeted u/s 13(1)(e) of the Prevention of Corruption Act, 1988 for possessing disproportionate assets. The submission of the Petitioner that while submitting charge-sheet, the investigating officer did not take note of some of the documents explaining the source of income, which he had produced and that the trial court has also acted illegally in not taking into consideration such documents while considering the petition filed by the Petitioner to discharge him is not in accordance with law. It is well settled that while framing charges, the court below is only to consider the materials placed by the investigating agency and not to interfere on hypothesis, imagination and other reasons which amount to interdicting trial. A similar view was expressed by this Court in the case of Dr. Shallendrea Kumar Tomatia v. Republic of India (2003) 25 OCR 617. In the said case, relying upon several judgments of the Supreme Court, this Court came to the conclusion that while taking cognizance, the Court is only to consider the materials produced before it by the investigating agency. 6. In view of the aforesaid clear pronouncement and the statutory obligation of the court being not to interfere at the initial stage of framing charges merely on hypothesis and imagination, this Court is not inclined to interfere with the impugned order and disposes of the revision giving liberty to the Petitioner to produce the materials, which he wants to rely upon in his defence in course of trial.