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2012 DIGILAW 291 (ORI)

Dandapani Pradhan v. State of Orissa

2012-07-09

B.K.NAYAK

body2012
ORDER 09.07.2012 - Heard learned counsel for the petitioners and Mr. Pani, learned Additional Standing Counsel for the Vigilance Department. Perused the case records The petitioners, in this application under Section 482 of the Code of Criminal Procedure, pray for quashing of the order dated 09.08.2004 passed by the learned Special Judge, (Vigilance), Berhampur in T.R. No.30 of 2004 arising out of Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act and directing for issuance of process against the petitioners. It is submitted by the learned counsel for the petitioners that nowhere in the impugned order, the learned Special Judge has said that on going through the records, he was satisfied prima facie about commission of the offences by the petitioners and therefore, the order of cognizance is bad as it suffers from complete non-application of mind by the learned Special Judge. In this connection, he places reliance on the decisions of this Court reported in (2003) 26 OCR 730; *2003 (Supp.) OLR (NOC) 9681 *Gundicha Behera and another v. State of Orissa and 2008 (II) OLR 85 ; Saroj Kumar Mahapatra v. State of Orissa. In the case of Gundicha Behera and another (supra), this Court quashed the order of cognizance on the ground that the Magistrate has neither perused the material nor arrived at prima facie satisfaction about commission of the offences by the accused so as to take cognizance of the same. In absence of prima facie satisfaction, the order of cognizance becomes vulnerable. In the case of Saroj Kumar Mahapatra (supra) where the cognizance order is almost similar to the order passed in the present case, it was held by this Court as follows: "8. 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(1)(d) read with Section 13(2) of the P.C. Act." In, the instant case, the impugned order of cognizance runs as under: "SI. the petitioner in the alleged offence has not been disclosed while proceeding to take cognizance of the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act." In, the instant case, the impugned order of cognizance runs as under: "SI. No. - Date of Order 9.8.03 :- Case record is received on transfer from C.J.M.., Berhampur and taken to my file. Register. Perused the same. F.I.R. C.D. and connected its papers. Cog. of offence U/s 13(2) r/w 13(1)(c) of P.C. Act is taken against the accused persons. Issue summons to the accused persons fixing 06.10.04 for appearance." The impugned order does not disclose the prima facie satisfaction of the learned Special Judge regarding availability of materials about commission of the offence, by the petitioners so as to take cognizance of the same. The matter needs reconsideration by the learned Special Judge. In the circumstances, I allow this CRLMC, quash the impugned order of cognizance passed in T.R. No. 30 of 2004 arising out of G.R. Case No. 25 of 2003 and the matter is remitted back to the learned Special Judge (Vigilance), Berhampur to reconsider the question of cognizance after going through all the materials available on record and reaching prima facie satisfaction about the commission or otherwise of the offences by the petitioners. Issue urgent certified copy. CRLMC allowed.