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2012 DIGILAW 267 (ORI)

DHANESWAR PRADHAN v. STATE OF ODISHA

2012-06-26

I.MAHANTY

body2012
JUDGMENT : I. Mahanty, J. - In the present application u/s 482 Cr.P.C. the petitioner has sought for quashing the order dated 30.6.2011 passed by the learned Special Judge (Vigilance), Jeypore in G.R. Case No. 42 of 2010 (V) arising out of Koraput Vigilance P.S. Case No. 42 of 2010 pending before the learned C.J.M.(Vig.), Jeypore taking cognizance against him for the alleged commission of offence under Sections 7/13(2) read with 13(1)(d)/7 P.C.Act,1988 Dr. Gangadhar Tripathy, learned counsel for the petitioner contended that on perusal of the F.I.R. under Annexure-1 and detection report under Annexure-2, it appears that the initiation of the proceeding against the petitioner is wholly baseless and it also establishes that no offence as alleged has been made out. 2. It is submitted by the learned counsel for the petitioner that that the allegation of demanding of Rs. 300/-by the petitioner from the informant to submit the enquiry report before the Tahasildar, Kolnora does not arise since before the date of the alleged offer of gratification, the report of enquiry prepared by the petitioner had already been forwarded to the Tahasildar since the complainant though requested but the petitioner had not provided the requisite documents for the purpose of enquiry and hence, the report has been submitted by the petitioner to the Tahasildar on 20.09.2010 prior to the date of trap. 3. The next contention of the learned counsel for the petitioner relating to the present fact that the money has not been found from the possession of the petitioner but inside the register and the petitioner's hands do not touch the tented money. Apart from the above, strong reliance was placed by the learned counsel for the petitioner on the detection report under Annexure-2 where it is noted that the accompanying cum over hearing witness Sri Alekha Ranjan Mahankuda had been instructed to see the transaction of bribe money between the complainant and the accused and over hear their conversation and give the pre arrange signal to the remaining members of the trap team. Dr. Dr. Tripathy submits that it would be evident from the detection report that the accompanying witness-Alekha Ranjan Mahankud is stated to have been accompanied the complainant-Sri Siba Sankar Hikaka to the office room of the petitioner but the accompanied witness did not either over hear the conversation between the petitioner and the complainant nor did he see handing over any bribe to the petitioner. The accompanying witness-Alekha Ranjan Mahankud further submitted that he gave a signal to the trap party on being informed by the complainant that he was handing over the bribe money to the petitioner. Therefore, it is submitted on behalf of the petitioner that in view of the fact that the accompanied witness neither over hear any conversation where the petitioner demanded any gratification nor saw the transaction of handing over the illegal gratification and merely giving the signal to the trap party only based on the submission made to the accompanied witness by the informant/complainant. Hence, it is asserted that there is absolutely no possibility of the petitioner being found guilty in trial and the proceeding ought to be quashed. 4. Dr. Tripathy, learned counsel for the petitioner placed reliance on the judgment of this High Court in the case of Jaganmaya Mishra v. State of Orissa, 2008 (1) OLR 249 and in particular, Paragraphs-15 and 16 thereof which is quoted herein below: 15. The present petitioner, except counting the currency notes paid by the informant and keeping it on the table of the other co-accused, as directed by the co-accused, had no role to play in the occurrence. There is no allegation by the prosecution that the petitioner demanded any illegal gratification and in lieu thereof received the money paid by the informant for doing any official act. 16. This Court is, therefore, satisfied that there is no prima facie case whatsoever made out against the present petitioner, of committing offence under the above mentioned sections of the Act. Thus, the impugned order by which cognizance of offences under the above sections has been taken against the petitioner is liable to be quashed and the said order, however, shall be held to be legal and valid as against the co-accused Narayan Chandra Behera. 5. Mr. Pani, learned Addl. Thus, the impugned order by which cognizance of offences under the above sections has been taken against the petitioner is liable to be quashed and the said order, however, shall be held to be legal and valid as against the co-accused Narayan Chandra Behera. 5. Mr. Pani, learned Addl. Standing Counsel (Vigilance), on the other hand, submitted that whether the adequacy or otherwise of the evidence can only be agitated on conclusion of the trial and in the present case since charge-sheet has been submitted and order of cognizance has been passed which is premature any evidence to submit whatsoever. He further submits that the F.I.R. and detection report together fairly establish the prima facie case and, therefore, does not justify any interference whatsoever. He submits that it has now been well settled by the Hon'ble Supreme Court in the case of State of A.P. v. P. Satyanarayana Murthy, 2009 (1) CCC 533 (S.C.) that the conviction on the basis of sole testimony of the complainant is also permissible in view of the presumption raised u/s 20 of the P.C. Act. For better appreciation of the fact, Paragraphs-3 and 5 of the said judgment is quoted hereinbelow: 3. Learned counsel for the appellant-State submitted that the High Court by a cryptic order has set aside the well reasoned judgment of the trial Court. Merely because some persons were not examined, same cannot be a ground to discard the evidence of a reliable witness. It is pointed out that the bribe money purported to have been given by Narsimha Reddi was also seized. The Investigating Officer had clearly stated the reasons for the non examination of Narsimha Reddi. It was stated that he had joined naxalites. The presumption available u/s 20 of the Act was not kept in view by the High Court. It is submitted that the High Court's conclusions are based on surmises and, therefore, the judgment of acquittal cannot be maintained. 5. It is to be noted that the evidence of P.W.1 has not been discarded by the High Court. But it is observed by the High Court that there was no corroboration to the evidence of P.W.1 and therefore it recorded the order of acquittal. The evidence of P.W.1 does not suffer from any infirmity. Mere non-examination of any other person would not render his evidence suspect. But it is observed by the High Court that there was no corroboration to the evidence of P.W.1 and therefore it recorded the order of acquittal. The evidence of P.W.1 does not suffer from any infirmity. Mere non-examination of any other person would not render his evidence suspect. The IO has categorically stated that Narsimha Reddi was not available to be examined as a witness. Further, there was no suggestion given by the accused that money was forced on his hands and thereafter he put it on the table. No such suggestion was given and for the first time during examination u/s 313 of the Code of Criminal Procedure, 1973 (in short 'the Code') such a stand was taken. The High Court has also not considered the effect of the presumption flowing from Section 20 of the Act. It is not understood as to the basis on which the High Court found that accused would not put the application form and the money in different places. The conclusion has no basis. The accused did not dispute that the application form Ext.P5 was found in a brief case. In fact the bribed money from Narsimha Reddi was also seized. It has been clearly indicated by the witness that the money given by PW1 and money given to Narsimha Reddi were kept side by side and were not mixed up. In the present case, the trial Court had elaborately dealt with the evidence to record conviction. The High Court has not indicated any reason as to how the conclusions of the trial Court are wrong. In any event, the High Court by a cryptic conclusion held that the evidence led was not sufficient. As noted above, reasons for Narsimha Reddi's non examination has been disclosed by the prosecution. 6. Relying on the aforesaid judgment, learned Addl. Standing Counsel (Vigilance) submitted that since the complainant himself averred that the demand had been made by the petitioner and pursuant to the demand, he had handed over the bribe demanded, there is no reason as to why the present proceeding should be quashed and the matter should be left for consideration for the trial court on completion of the trial. 7. 7. Therefore, while I refrain to express any opinion on the contentions advanced by the learned counsel of either side since it is likely to cause prejudice to the parties, it is suffice for me to note that in the present case, the informant/complainant has categorically stated that he offered the bribe on being demanded by the R.I. Hence, I find no justifiable reason to enter into any elaborate consideration thereto and also of the considered view that the present case is not a fit case where the order of cognizance ought to be quashed. 8. Accordingly, since a prima facie case has been made out for the purpose of taking cognizance, the prayer for quashing the order of cognizance dated 30.06.2011 passed by the learned Special Judge (Vigilance), Jeypore in G.R. Case No. 42/2010 (V) stands rejected. However, it is made clear that nothing stated in this order shall prejudice to either side and the parties are at liberty to raise all such contentions as may be available to them in course of such trial. With the aforesaid observation, the CRLMC stands dismissed.