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2012 DIGILAW 516 (ORI)

Ananda Chandra Behera v. State of Orissa

2012-11-21

SANJU PANDA

body2012
JUDGMENT S. PANDA, J. : The petitioner in this criminal revision challenges the orders dated 6.8.2012 and 8.8.2012 passed by the learned Special Judge, Vigilance, Bolangir in connection with CTR No.47/104 of 2006-2007 rejecting the application filed by him under Section 227 Cr.P.C. and issuing summons to the charge sheeted witnesses to proceed with the trial. 2.The petitioner is an accused in connection with Sambalpur Vigilance P.S. Case No.8 of 2005 which was registered as CTR No.47/104 of 2006-2007 pending before the learned Special Judge, Vigilance, Bolangir. The offences alleged against the petitioner are under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short, “the Act”). The Court below framed charge under Sections 13(1)(e) read with Section 13(2) of the Act against the petitioner. Thereafter, the petitioner filed an application under Section 227 Cr.P.C. to discharge him from the said charges stating, inter alia, that the materials collected by the I.O. as well as the materials available on record do not justifying framing of charge against him. The I.O. did not take into consideration the income of the wife from the source of Tuition and Diary business. The petitioner’s income from the date of his joining and agriculture were taken into consideration as Rs.50,000/- only which was incorrect. The price of the articles seized during investigation was shown exorbitantly. The house at Chandra Sekharpur is shown as the assets of the petitioner. However, the same belongs to his late father, who was the recorded owner of the house. As such, that property is to be excluded as it was not acquired from the income of the petitioner. The sale proceed of an old car belonging to the brother of the petitioner was included towards the income of the petitioner. The said car was sold prior to the raid conducted. Therefore, the investigation is not proper and sanction was accorded without application of mind. Hence, the prosecution should not be allowed to continue against the petitioner. Accordingly, he should be discharged from the aforesaid charges. 3.An objection was filed to the said application by the opposite party taking a stand that the plea of the petitioner regarding income of his wife had not been disclosed before the I.O. during investigation and as such, it was an after thought. Accordingly, he should be discharged from the aforesaid charges. 3.An objection was filed to the said application by the opposite party taking a stand that the plea of the petitioner regarding income of his wife had not been disclosed before the I.O. during investigation and as such, it was an after thought. The investigating agency during investigation from the materials available on record found that the petitioner possessed movable and immovable properties which were disproportionate to his known sources of income by abusing his official position. The investigating agency had also meticulously calculated the income, expenditure and assets found taking into consideration the price and year of acquisition of the seized articles. Regarding house at Chandra Sekharpur of Bolangir town is concerned, it was the exclusive property of the accused-petitioner. The old car, if any, was of the brother of the petitioner and the petitioner is not entitled for its sale proceed. The sanctioning authority taking into consideration the materials available on record and after due inquiry accorded sanction. Hence, the application filed by the petitioner to discharge him from the aforesaid charges is liable to be rejected. 4.On the above allegations and objection, the learned Special Judge, Vigilance, Bolangir, after hearing the learned counsel for both the parties rejected the application by the impugned orders on the finding that before consideration of the charge, the Court is required to consider whether there are sufficient materials on record to proceed against the accused. As reveals from the contentions of the accused raised in his petition, he tried to adduce evidence in defence. The questions raised by the accused are required to be ascertained only after production of evidence by both the parties on all factual aspects of the case which cannot be dealt with at this stage. Accordingly, on 8.8.2012 the Court below proceeded with the trial by issuing summons to the charge sheeted witnesses. 5.Learned counsel appearing for the petitioner submitted that while framing charge, the Court below has to deal with all the grounds raised by the accused-petitioner and if on the face of the record it appears that the prosecution is not able to make out a prima facie case, the Court below should not have proceeded with the trial by framing charge which amounts to abuse of process of Court. He further submitted that the Court below has not taken into consideration the income of the wife and the house which belongs to the father of the petitioner. Therefore, on the face of the record, there was no material against the petitioner to frame charge and proceed with the trial. The Court below has also not assigned the reasons in framing the charge under the aforesaid sections. Therefore, the order needs to be interfered with. In support of his contention, he has cited the decisions of the apex Court in the case of State of Karnataka v. L. Muniswamy and others reported in AIR 1977 SC 1489 and Niranjan Singh Karam Singh Punjab, Advocate v. Jitendra Bhimraj Bijjaya and others reported in AIR 1990 SC 1962 . 6.Learned counsel appearing for the Vigilance Department, however, submitted that since there are sufficient materials available on record, the Court below proceeded with the trial by issuing summons to the charge sheeted witnesses. In support of his contention, he has cited a decision of the apex Court in the case of State of Orissa v. Debendra Nath Padhi reported in (2005) 30 OCR (SC) 177. 7.This Court has considered the rival submissions of the parties. On perusal of the case diary, it appears that after due investigation, an F.I.R. was lodged on the basis of the materials available on record. The trial Court at the time of framing charge has considered those materials on record and prima facie satisfied that sufficient materials are available on record and proceeded against the accused by framing charges on the presumption that at the time of framing charge, the accused has no right to produce or adduce rebuttal materials to dislodge the prosecution case. The apex Court in the case of State of Orissa v. Debendra Nath Padhi (supra) has held that at the time of framing charge or taking cognizance, the accused has no right to produce any material. Therefore, the contention of the petitioner that the Court has not considered those materials while framing charge is not sustainable, as those are subject to trial. Therefore, the contention of the petitioner that the Court has not considered those materials while framing charge is not sustainable, as those are subject to trial. 8.The apex Court in the case of the State of Karnataka v. L. Muniswamy (supra) while considering Section 227 of the Code of Criminal Procedure held that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. However, the said decision, it was also held that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. 9.In view of the above position of law, this Court is not inclined to interfere with the impugned orders. However, it is open to the petitioner to raise all the above points at the subsequent stage of the trial. Accordingly, the criminal revision is dismissed. Appeal dismissed.