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2013 DIGILAW 206 (ORI)

Bibhudhendu Prasad Mohanty v. State of Orissa

2013-07-12

M.M.DAS

body2013
JUDGMENT M.M. DAS, J. – As both the aforesaid Criminal Misc. Cases filed by the accused – petitioner arise out of one T.R. Case, being T.R. Case No. 27 of 2008, corresponding to Cuttack Vigilance P.S. Case No. 43 of 2007 (G.R. Case No. 43 of 2007) pending before the learned Special Judge (Vigilance), Cuttack, they were heard together and are being disposed of by this common judgment. 2. CRLMC No. 1693 of 2008 has been filed by the accused-petitioner to quash the FIR, upon which, Cuttack Vigilance P.S. Case No. 43 of 2007 was registered. As during pendency of the said case, a charge sheet has been filed and the learned Special Judge, Vigilance, Cuttack in T.R. Case No. 27 of 2008 took cognizance of the offences under section 13(2) read with 13(1)(d)/7 of the P.C. Act against the accused-petitioner, CRLMC No. 33 of 2009 has been filed to quash the said order dated 23.12.2008 taking cognizance of the above offences against the petitioner. 3. The short facts involved in both the cases are that one Debadutta Mishra, who happens to be a reporter of the daily Oriya newspaper, “The Dharitri”, lodged a report before the Superintendent of Police, Vigilance, Cuttack regarding a land dispute, inter alia, alleging that he lodged an F.I.R. about the said land dispute before the present petitioner, who was discharging the duty as I.I.C., Jajpur Town Police Station and the said F.I.R. was entered as a Station Diary by the petitioner, but he did not take any action thereon. It was alleged in the said report lodged by Mr. Debadutta Mishra that when he again and again requested the petitioner to take action against the culprits, the petitioner demanded Rs. 3,000/-for taking action. On such information being lodged, the Vigilance police on maintaining proper procedure along with the official witnesses proceeded to Jajpur Police Station, where it was found that the petitioner was in the Government quarters. The complainant and the over hearing witnesses went to the petitioner’s quarter and they were asked by the petitioner to sit on the Sofa which was on his verandah and instructed the complainant to follow him to his bed room, where he demanded and accepted the gratification from the complainant. After receipt of the money, he examined the notes and kept the tainted money in his right side Pant pocket. After receipt of the money, he examined the notes and kept the tainted money in his right side Pant pocket. Then the money was immediately recovered from his Pant pocket and his hand was washed with Sodium Carbonate solution when the colour of the solution turned light pink. 4. The petitioner’s case is that the allegation of demand of illegal gratification by him is not corroborated by any witness including the over hearing witness. The report of the Vigilance Department itself categorically indicates that the over hearing witness has not heard regarding the demand, but has seen the acceptance, which is evident from the detection report available in the case diary. The further case of the petitioner is that the dispute is purely civil in nature between the informant’s father-in-law and the land owner, where the petitioner had nothing to do in the criminal case initiated by the informant by lodging information before him. Admittedly, the over hearing witness has not seen the occurrence, but has only stated to have seen the acceptance of the money which, according to the petitioner, is not sufficient to prove the case, once the demand is not proved. 5. It was contended on behalf of the petitioner that even if there is acceptance of money in absence of any demand, it cannot be accepted to be a case of bribery. 6. Mr. Pani, learned counsel for the State, however, submitted that on the facts of the case, acceptance of the money by the petitioner itself is sufficient to draw an inference that it was a gratification accepted “ as motive or reward” for doing or forbearing to do any official act and the word ‘gratification’ need not be stretched to mean reward because reward is the out-come of the presumption which the court has to draw on the factual premises that there was payment of gratification. Mr. Pani has relied in support of his contention on the decision of the Hon’ble apex Court in the case of B.Noha v. State of Kerala and another, (2007) 36 OCR (SC) 47. Mr. Pani has relied in support of his contention on the decision of the Hon’ble apex Court in the case of B.Noha v. State of Kerala and another, (2007) 36 OCR (SC) 47. He further submitted that even accepting that the dispute was purely civil in nature, the Hon’ble apex Court in the case of Syed Ahmad v. State of Karnataka, (2012) 53 OCR (SC) 173 laid down that explanation (d) to Section 7 of the P.C. Act clearly says that whether the accused could or could not deliver results becomes irrelevant in view of the acceptance of the testimony of P.Ws 1 and 2 in the said case. He also relied upon various judgments of the Hon’ble apex Court in support of his contention that when a public servant is charged under section 161 IPC and it is alleged that illegal gratification was taken by him for doing or procuring an official act, it is not necessary for the court to consider whether or not the accused public servant was capable of doing or intended to do such an act. 7. Learned counsel for the petitioner, also relied upon various decisions of different High Courts as well as the Hon’ble apex Court in contending that if the fact of demand has not been proved, no offence is made out under sections 13 (2) and 13 (1) (d) read section 7 of the P.C. Act. 8. It is trite that in a trap case for taking bribe, mere recovery of tainted money divorced from circumstances under which it is paid is not sufficient to convict the accused. When there is no corroboration of the testimony of the complainant regarding demand of bribe by the accused, it has to be accepted that the complainant’s version is not corroborated and, therefore, evidence of the complainant cannot be relied on. 9. Exercise of power under section 482 Cr.P.C. has been succinctly dealt with in various judgments of the Hon’ble apex Court, wherein it has been held that the entire materials produced by the prosecution, if do not make out a case against the accused, the continuance of such a criminal proceeding will amount to abuse of the process of the Court and will be a travesty of justice. In the oft quoted judgment of the Hon’ble apex Court in the case of State of Haryana and others v. Ch. In the oft quoted judgment of the Hon’ble apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 , the Hon’ble apex Court has laid down the guidelines, which are to be followed while exercising inherent power by this Court under section 482 Cr.P.C. One of the grounds mentioned is that where un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, the Court can exercise the inherent power under section 482 Cr. P.C. for quashing the proceeding. 10. Reverting back to the facts at hand and referring to the materials available on record, it appears that it is a fact that at the time of trap, a sum of Rs. 3,000/-in currency notes was received from the complainant by the accused-petitioner. But from the detection report, it appears that after the accused –petitioner accepted the money from the complainant, the Investigating Officer disclosing his identity and the identity of other members, charged the petitioner about acceptance of bribe and he (accused-petitioner) disclosed that the complainant had taken Rs. 3,000/-from him as hand loan and today he has repaid the same which was accepted by him. It is an admitted fact that the tainted notes on being accepted and the petitioner’s hand being washed, the solution/chemical changed its colour which only shows that the said currency notes were received by the accused-petitioner in his own hand. However, the statement of the over hearing witness before the I.O. was that as per plan, he accompanied the complainant Shri Mishra to the residence of the accused-petitioner. Both of them entered inside his residence. He waited in the inner verandah, which is in between the bed room and the entrance room and the complainant entered inside the bed room. Seeing him, the Orderly of the petitioner made query about his identity to which he gave clarification that he has come with complainant since he is one of his relations. He has not heard the demand, but has seen the transaction and acceptance, after which, he relayed the information to the other members of the trap party. After getting information from him, the Vigilance team arrived and took follow up action. (emphasis supplied) 11. He has not heard the demand, but has seen the transaction and acceptance, after which, he relayed the information to the other members of the trap party. After getting information from him, the Vigilance team arrived and took follow up action. (emphasis supplied) 11. In the case of Panalal Damodar Rathi v. State of Maharashtra (1979)4 SCC 526 , a three Judge Bench of the Hon’ble apex Court held that when there was no corroboration of the testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , it was held by the Hon’ble apex Court referring to its earlier judgment in the case of Suraj Mal v. State (Delhi Admn.), (1979)4 SCC 725 that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. (emphasis supplied) 12. In the above backdrop, on consideration of the facts involved in the present case, this Court is firmly certain that there is no prospect of the case ending in conviction of the petitioner and allowing the criminal case to be continued would amount to wastage of valuable time of the court for holding a fruitless trial for the purpose of formality of completion of the procedure to pronounce the conclusion on a future date. It is an admitted position that most of the Vigilance Courts in the State are under heavy pressure of work and in such situation, if a case of the present nature is allowed to be continued, it would amount to adding fuel to the fire, ultimately serving no purpose. It is an admitted position that most of the Vigilance Courts in the State are under heavy pressure of work and in such situation, if a case of the present nature is allowed to be continued, it would amount to adding fuel to the fire, ultimately serving no purpose. This Court, therefore, concludes that the learned court below should not have taken cognizance of the offences as done in his order dated 23.12.2008 against the accused-petitioner and the case should not be permitted to be continued as otherwise the same would amount to abuse of the process of the Court as well as a travesty of justice. 13. In the result, the order dated 23.12.2008 passed by the learned Special Judge, Vigilance, Cuttack taking cognizance of the offences, as stated above, against the accused-petitioner stands quashed and, consequently, the proceedings in T. R. Case No. 27 of 2008 pending before the said court also stands quashed. Both the Criminal Misc. Cases are allowed.