Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 395 (ORI)

Shipra Kumar v. State of Orissa

2013-09-19

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. SARANGI, J. 1. The petitioner, who is the wife of a State Bureaucrat, files this application seeking to quash the FIR in Bhubaneswar Vigilance P.S. Case No. 62 of 13.11.2003 corresponding to VGR No. 63 of 2003 and the entire proceeding pending in the Court of learned Special Judge, Bhubaneswar for the offence under Section 13(2) read with Section 13(1)(e) and Section 12 of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. 2. The short fact of the case in hand is that the petitioner's husband Vinod Kumar, IAS, Additional Secretary to the. Government of Odisha in the School and Mass Education Department was found to be in possession of assets in his name and in the name of his wife, Shipra Kumar disproportionate to his known 'source of income to the tune of Rs. 89,68,970/-, which is 241% of his Income as per the statement given in the FIR. It was found that Vinod Kumar joined Government service in the Indian Administrative Service cadre on 21.8.1989 and at the time of lodging of the FIR, he was discharging his duties as Additional Secretary to the Government of Odisha, School and Mass Education Department since 16.5.2001. He started a Beauty Parlour-cum-Health Club in the name and style of 'BODY STEPS" in VIP Area, Nayapalli, Bhubaneswar during 1998 in the name of the his wife and sold the same to one Aswin Kumar Pattnaik on 26.5.2001 for Rs. 5,50,000/-. He also started a Beauty' Parlour in the name and style of 'FEMI GRACE", Janpath, Kharvela Nagar, Bhubaneswar on 2.3.2001, which was closed since May, 2002. Out of his two daughters, the elder one is reading in Class IX in Welham Girls School, Dehradun, Uttaranchal and the second daughter is reading in Class V in Delhi Public School, Kalinga at Adhalia, Fulnakhara, Cuttack. During enquiry, taking into consideration the net salary income from the Health Club, Beauty Parlour in the name of his wife, agricultural income from the landed property said to have been purchased in the name of Shipra Kumar, loan from ORHDC, Union Bank of India, HDFC, sale proceeds of BODY STEPS, the total probable income of Vinod Kumar during the period from 21.8.1989 to 23.10.2003 comes to Rs. 37,21,000.00. 37,21,000.00. So also the probable expenditure towards food, clothing, repayment of loan investment in BODY STEPS, FEMI GRACE, Educational expenses, Telephone, Electricity, Air Travel, Car conveyance etc. come to Rs. 42,02,772.00 On 23.10.2003 at 6AM. when the Vigilance Search party arrived in the Government quarters of Vinod Kumar in the VIP Colony, Bhubaneswar, his wife Shipra Kumar did not open the lock of entrance grill door and told that Vinod Kumar, IAS was out on tour to Puri and she went inside the house and did not respond for about 10 minutes. It was found that smoke was coming out through the vent of the exhaust fan of the kitchen room and smell of burning of papers was felt. Only after repeated knocks on rear side door, the petitioner opened the same. On entering, it was found that a heap of documents and papers was burning on the gas stove of the kitchen and the fire was put off. It was found that Vinod Kumar was found sitting on the commode of the attached bath room of the bed room and the torn documents such as cheque books, papers relating to shares, bank deposits were found inserted inside the commode as well as the cistern of the bath room, which were recovered with the help of the plumber of P.H.D. Thus, it was found that Vinod Kumar and his wife, Shipra Kumar, the petitioner herein, had intentionally attempted to destroy the incriminating materials pertaining to possession of disproportionate assets. 3. Mr. Pitambar Acharya, learned Sr. Advocate appearing for the petitioner stated that the provisions of the Prevention of Corruption Act, 1988, hereinafter to be referred to as "P.C. Act", in short, is not applicable in case of the petitioner as she is not a public servant within the meaning of Section 2(c) of the P.C. Act. In order to attract the provisions of P.C. Act, under Section 13 a person must be a public servant within the meaning of Section 2(c) and as such, on perusal of the FIR, no such allegations have been made out and the police had submitted chargesheet in which it is stated that no case is made out against the petitioner. In order to attract the provisions of P.C. Act, under Section 13 a person must be a public servant within the meaning of Section 2(c) and as such, on perusal of the FIR, no such allegations have been made out and the police had submitted chargesheet in which it is stated that no case is made out against the petitioner. Apart from the same, he stated that due to enactment of Orissa Special Courts Act, 2006, hereinafter to be referred to as "Act, 2006" by virtue of the notification issued and published in Official Gazette on 10.7.2012, the case has been transferred to the Special Court so far as it relates to the petitioner's husband. Therefore, he urged that initiation of the proceeding against the petitioner cannot be sustainable and is liable to be quashed. In support of his contention, he relied upon the judgments of the apex Court in Viswanath Chaturvedi v. Union of India and others, (2007) 4 SCC 380 , which has undergone a review under Article 137 read with Article 145 of the Constitution of India reported in (2013) 2 SCC 1 (Akhilesh Yadav v. Viswanath Chaturvedi and others), in which the case of Dimple Yadav v. Viswanath Chaturvedi and others has been considered. Mr. Acharya learned Sr. counsel referring to paragraphs 2, 6, 7, 12, 21 and 35 of the aforesaid judgment urged that Dimple Yadav had neither held any office nor Government post and essentially a private person notwithstanding her proximity with Akhilesh Yadav and Mulayam Singh Yadav and on consideration of her case, the apex Court had taken a view that the investigation conducted against her on the issue of amassing wealth beyond her known source of income is liable to be dropped. The review petition so far as Dimple Yadav is concerned has been allowed and the investigation conducted by CSI has been dropped. Referring to these paragraphs, Mr. Acharya urged that the petitioner being not a public servant, the proceeding should be dropped in view of the ratio decided by the apex Court in the judgments referred to supra. The review petition so far as Dimple Yadav is concerned has been allowed and the investigation conducted by CSI has been dropped. Referring to these paragraphs, Mr. Acharya urged that the petitioner being not a public servant, the proceeding should be dropped in view of the ratio decided by the apex Court in the judgments referred to supra. He further stated that since Section 5 of the Act, 2006 requires declaration of cases to be dealt with under the said Act, such declaration having not been made and only the case of her husband has been transferred to the special Court by virtue of the notification dated 10.7.2012, the proceeding so initiated as against the petitioner should be quashed. 4. Mr. Pani, learned Standing counsel appearing for the Vigilance Department, opposed the contention raised by Mr. Acharya and stated that this is not the stage where the proceeding can be quashed by invoking the power under Section 482, Cr.P.C. and as such, the claim of the petitioner cannot be sustainable. Mr. Pani referring to Section 6(2) of the Act, 2006 stated that where any declaration made under Section 5 relates to an offence in respect of which a prosecution has already been instituted and the proceedings in relation thereto are pending in a Court other than, Special Court, such proceeding shall, notwithstanding anything contained in any other law for the time being in force, stand transferred to Special Court for trial of the offence in accordance with this Act. Therefore, he stated that by the time the Act, 2006 came into force, the prosecution had already been launched against the petitioner and the proceeding in relation thereto, is pending for consideration by the special Court and therefore, notwithstanding anything contained in any other law for the time being in force, the same can be transferred to the special Court for trial of the offence. Thus, the case of the petitioner is protected under Sub-section (2) of Section 6 of the Act, 2006. It is further reiterated that charge-sheet has been submitted by the police after causing a full-dress investigation where it is stated that prima facie case of criminal misconduct is made out under Section 13(2) read with Section 13(1)(e) of the P.C. Act read with Section 109, IPC against Vinod Kumar and his wife, Shipra Kumar. It is further reiterated that charge-sheet has been submitted by the police after causing a full-dress investigation where it is stated that prima facie case of criminal misconduct is made out under Section 13(2) read with Section 13(1)(e) of the P.C. Act read with Section 109, IPC against Vinod Kumar and his wife, Shipra Kumar. Even though Shipra Kumar is not a public servant, but she can be considered as an abettor in view of the provisions contained in Section 109, IPC. By virtue of the charge-sheet submitted, an abettor can only be tried along with the principal accused and he has also referred to Section 7 of the Act, 2006, which speaks about jurisdiction of Special Courts for trial of offences, to mean a Special Court shall have jurisdiction to try any person alleged to have committed the offence in respect of which a declaration has been made under Section 5, either as principal, conspirator or abettor and for all the other offence? and accused persons as can be jointly tried therewith at one trial in accordance with the Code. Therefore, he stated that being an abettor, the petitioner can be tried in view of Section 7 of the Act, 2006. Mr. Pani further referring to Section 9 of the Act, 2006, which states about appeal against the orders of the Special Court, urged that notwithstanding anything contained in the Code, an appeal shall lie from any judgment and sentence of a Special Court or order of a Special Court to the High Court of Orissa both on facts and law. Referring to Sub-section (2) of Section 9 of the Act, 2006, he stated that except as aforesaid, no appeal or revision shall lie in any Court from any judgment, sentence or order of a Special Court, thereby the statute prohibits to file any application in the garb of appeal or revision against any order passed by the Special Court. Thus, the petitioner has invoked the jurisdiction under Section 482, Cr.P.C. to quash the proceeding just to bypass the provision contained in the Act, 2006. Mr. Pani also distinguished the case cited by Mr. Acharya so far as it relates to the case of Dimple Yadav stating that she was not an abettor in the said case and therefore, the said judgment cannot be taken into consideration in the present context. Mr. Mr. Pani also distinguished the case cited by Mr. Acharya so far as it relates to the case of Dimple Yadav stating that she was not an abettor in the said case and therefore, the said judgment cannot be taken into consideration in the present context. Mr. Pani referring to the judgment in P. Nallammal and another v. State, represented by Inspector of Police, 1999 (6) SCC 559 stated that the trial of a non-public servant for abatement of offence under Section 13(1)(e) along with the public servant by the Special Judge is not barred. He also referred to the judgment in Bharat Lal and another v. Central Bureau Investigation, 2006 (2) Crimes 209 , where the judgment of the apex Court in P. Nallammal and another (supra) has been referred to and the fact of that case is akin to the fact of the present case where the High Court of Chhatisgarh has held that any person who abates commission of offence by the public servant under Section 13(1)(e) of the P.C. Act is liable to be prosecuted under the Act, 2006. 5. There is no dispute that the petitioner is the wife of Vinod Kumar, a top bureaucrat of the State holding high position in the rank of Additional Secretary to the Government in School and Mass Education Department and a member of the Indian Administrative Service. Due to accumulation of property, disproportionate to his known source of income, search was conducted by the Vigilance Police of the State at his house and business premises of his brother-in-law at Bhubaneswar, his father's house at New Delhi on the strength of search warrant issued by the Special C.J.M. 6. Admittedly, Vinod Kumar married to the petitioner during 1986, i.e., prior to his entry into the Indian Administrative Service. On the basis of the documents available, it is found that Vinod Kumar has invested substantially in the industry in the name and style of "Satyam Enterprises" setup by his brother-in-law at Bhubaneswar. On enquiry, it is found that the net salary income from the Health Club, Beauty Parlour in the name of his wife Shipra Kumar, agricultural income from the landed property said to have been purchased in the. On enquiry, it is found that the net salary income from the Health Club, Beauty Parlour in the name of his wife Shipra Kumar, agricultural income from the landed property said to have been purchased in the. name of Shipra Kumar, roan from ORHDC, Union Bank of India, HDFC, sale proceeds of BODY STEPS, the total probable income of Vinod Kumar during the period from 21.8.1989 to 23.10.2003 comes to Rs. 37,21,000.00 and the probable expenditure towards' food, clothing, repayment of loan investment in BODY STEPS, FEMI GRACE, Educational expenses, telephone, electricity, air travel, car conveyance etc. comes to Rs. 42,02,772.00. It is also evident from the record that when the vigilance search party arrived in the Govt. quarters of Vinod Kumar on 23.10.2003, the petitioner did not open the lock of entrance grill door and told that Vinod Kumar was out on tour to Puri and tried to destroy the documents by burning in gas stove in the kitchen room and the investigation further reveals that the petitioner had intentionally attempted to conceal and destroy incriminating records/documents pertaining to possession of disproportionate assets to the tune of Rs. 89,68,970.00, which is 241% of his income, thereby criminal case has been instituted under Section 13(2) read with 13(1)(e)/12 of the P.C. Act and Section 120-B of IPC against Vinod Kumar and his wife, Smt. Shipra Kumar. Therefore, on perusal of the FIR, it is found that there is prima facie allegation against the petitioner. Thus, the contention raised by Mr. Acharya, learned Sr. Counsel for the petitioner that on bare perusal of the FIR, no case is made out against the petitioner, has no legs to stand. Accordingly, the said contention is rejected. 7. So far as the applicability of Act, 2006 is concerned, on consideration of the contentions raised by Mr. Pani, it is found that there is ample force on his contention. Section 5 of the Act, 2006 though requires a declaration, in view of Section 6(2) where any declaration made under Section 5 relates to an offence in respect of which prosecution has already been instituted and proceeding in relation thereto are pending in a Court other than Special Court, such proceedings shall notwithstanding anything contained in any other law for the time being in force, stand transferred to Special Court for trial of the offence in accordance with this Act. Therefore, the contention made by Mr. Therefore, the contention made by Mr. Acharya to this extent that there is no declaration under Section 5 of the Act, 2006, is not sustainable, rather the contention raised by Mr. Pani has ample force to state that the proceeding initiated is protected under Section 6(2) of the Act, 2006. 8. The further contention raised by Mr. Pani with regard to Section 7 of the Act, 2006, it is made clear that Special Court has jurisdiction to try "any person" alleged to have committed offence in respect of which a declaration has been made under Section 5, either as principal, conspirator or abettor and all other offences and accused persons, as can be jointly tried therewith at one trial in accordance with the Code. It may kindly be noted that on perusal of the charge-sheet, it is found that after causing investigation, the Deputy Superintendent of Police, Vigilance, Bhubaneswar submitted charge-sheet under Section 13(2) read with Section 13(1)(e) of the P.C. Act and Section 109 of the Indian Penal Code against Vinod Kumar and Shipra Kumar. The same should be tried in the Court of law and for that sanction of prosecution has already been obtained against Vinod Kumar from the competent authority. Even though the petitioner is not a public servant due to the insertion of the provision under Section 109, IPC, she can be tried as abettor under the provisions of Section 7 of the Act, 2006. 9. The further contention raised by Mr. Pani is that in the garb of invoking the inherent jurisdiction of this Court under Section 482, Cr.P.C. the petitioner has approached this Court, which is contrary to Section 9 of the Act, 2006. In particular, relying upon Sub-section (2) of Section 9 of the Act, 2006, which speaks, that except as aforesaid, no appeal or revision shall lie in any Court from any judgment and sentence or order of a Special Court, he submitted that when Section 9 prohibits preferring any revision to nullify the effect of the same, the petitioner has approached this Court by invoking the jurisdiction under Section 482, Cr.P.C. and therefore, the same cannot be sustainable. 10. Mr. Acharya, learned Sr. 10. Mr. Acharya, learned Sr. Counsel appearing for the petitioner submitted that in view of Clause 7 of para 108 of the Judgment in State of Haryana v. Bhajanlal, AIR 1992 SC 604 , this Court can exercise power under Section 482, Cr.P.C. and quash the proceeding as there is bleak chance of conviction in the case. 11. Orissa Special Courts, Act, 2006 is a special statute, which has been enacted with specific purposes and with specific objectives, which has come into force with effect from 15.10.2007 and to give effect to the provisions of the Act, 2006, Orissa Special Courts Rules, 2007 has come into force with effect from 30.1.2008, which is governing the field. The provisions of the Act relate to offence and punishment for acquiring property or assets disproportionate to the known source of income of the public servants who held or are holding high public or political office. The expression "person holding high public or political office" has not been defined in the Act, but defined in the Rule. Therefore, the Special Courts Act is a criminal legislation. In the 7th Schedule, List-III Concurrent List of the Constitution of India, 1950 at Serial 1 "Criminal law" finds place and hence both the Parliament and the State Legislature are competent to enact law on criminal matters. As per the provisions of Article 254(2). "where the law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provision to an earlier law made by the Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent prevail in that State. The aforesaid enactment has received the Presidential assent on 19th September, 2007, thereby it is valid piece of legislation by virtue of the provision of Article 254(2) of the Constitution of India so far as the power of the State Legislature to enact such a law is concerned. Therefore, the provisions' that the Orissa Special Courts Act will have overriding effect over the Prevention of Corruption Act, 1988 and provisions of Criminal Procedure Code, 1973 and Criminal Law (Amendment) Ordinance 1974 springs from the fact of assent given by the President. Therefore, the provisions' that the Orissa Special Courts Act will have overriding effect over the Prevention of Corruption Act, 1988 and provisions of Criminal Procedure Code, 1973 and Criminal Law (Amendment) Ordinance 1974 springs from the fact of assent given by the President. This being the purpose behind enactment of the Special Courts Act, 2006, now it is to be examined whether this Court can exercise power under Section 482, Cr.P.C. to quash the proceeding initiated against the petitioner. 12. In order to answer the above question, reference is to be made to the reported judgment of the Supreme Court in Amaresh Sarkar v. Siba Charan Bose and another, 2013 (2) OLR 441 in which reference has been made to the judgment of the Apex Court in paragraphs 6, 7, 8 and 9 to the following effect: "6. The next question which arises for consideration in this case is in view of the settled legal position whether the High Court ought to have quashed the proceedings in exercise of its inherent power under Section 482 of the Cr.P.C. in the facts and circumstances of this case ? The Hon'ble apex Court in R.P.Kapur v. State of Punjab, AIR 1960 SC 866 summarized some categories of cases where the High Court in its inherent power can quash the proceeding. 7. In State of Karnataka v. L. Muniswamy & others (1977) 2 SCC 699 , the apex Court observed that the wholesome power under Section 482, Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the Court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this Court and other Courts. 8. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551 , a three Judge Bench of this Court held as under: "..... This case has been followed in a large number of subsequent cases of this Court and other Courts. 8. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551 , a three Judge Bench of this Court held as under: "..... In case the impugned order clearly brings out a situation which is an abuse of the process of the Court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming that the invoking of the revisional power of the High Court is impermissible." 13. The principles involving the power under Section 482, Cr.P.C. have been laid down by the apex Court in catena of decisions including R.P.Kapur (supra), Bhajan Lal (supra), Central Bureau of Investigation v. Duncans Agro Industries Limited, Calcutta, 1996 (5) SCC 591 , M/s. Pepsi Foods Limited v. Special Judicial Magistrate and others, AIR 1998 SC 128, Asim K. Roy v. Bipin Bhai Vadilal Mehta, AIR 1997 SC 3976, Madhavrao Jiwaji Rao Scindia and another v. Sambhaji Rao Chandroji Rao Angre and others, AIR 1988 SC 709 . 14. Keeping in view the parameters fixed by the apex Court referred to in the aforesaid judgments, the power under Section 482, Cr.P.C. may be very wide and very plentitude of the power requires great caution in its exercise and the Court must be careful to see that the decision in exercise of this power is based on some principle. As held by the Apex Court such power should be exercised sparingly in rarest of rare cases. 15. As held by the Apex Court such power should be exercised sparingly in rarest of rare cases. 15. On perusal of the FIR and the contentions raised by the parties, I am of the considered opinion that this is not a fit case where power under Section 482, Cr.P.C. can be invoked either to quash the FIR or to quash the proceeding against the petitioner who is the wife of a high official involved on prima facie case of criminal misconduct against her and more so, the charge-sheet contemplates initiation of proceeding referring to Section 109, IPC as an abettor. 16. In view of such facts and circumstances of the case and the position of law governing the field, I am of the considered view that this application filed by the petitioner merits no consideration. Accordingly, the CRLMC, is dismissed. CRLMC dismissed.