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2014 DIGILAW 376 (ORI)

Saroj Kumar Sahoo v. Republic of India

2014-06-24

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. : This judgment arise out of a bunch of revision applications under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’ for brevity) challenging the various orders passed by the learned Special Judge (CBI), Bhubaneswar in T.R. No.10 of 2009. 2.In Criminal Revision Nos.926 and 927 of 2011, the petitioners being an accused T.R. Case No.10 of 2009 have assailed the order dated 02.09.2011 passed by the learned Special Judge (CBI), Bhubaneswar rejecting their application under Section 239 of the Code to discharge the petitioners from the alleged charge under Sections 120-B, 420 and 511 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’ for brevity) read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘P.C. Act’ for brevity). In Criminal Revision Nos. 1115 and 1114 of 2013, the accused assailed the order passed by the learned Special Judge (CBI) framing charge against them for the aforesaid offences. 3.From the examination of the record, it is apparent that the petitioners along with others have been charge-sheeted for the aforesaid offences on the allegation that accused-Saroj Kumar Sahoo and Ajay Kumar Das, who happens to be the Agent and Development Officer (D.O.) of the LIC, respectively, were instrumental in issuing five LIC policies. Three policies have been booked in favour of Rajendra Satpathy for total sum of Rs.70 lakhs and LIC policy of Rs. 15 lakhs, in favour of Netramani Nanda and a policy of Rs.14 lakhs, in favour of Dutika Satpathy on false information. In all the policies, accused-Jollyrani Mohapatra has been mentioned as the nominee. 4.In course of investigation, it came to light that the above five LIC policies were booked in the name of Rajendra Satpathy, Dutika Satpathy and Netramani Nanda by submitting false information regarding income, profession, address, relationship with the nominee, etc. Information relating to previous LIC policy taken by the proposer has been suppressed by the accused-Ajay Kumar Das, D.O. of LIC in connivance with LIC Agents-Saroj Kumar Sahoo, Prabhakar Mohapatra and Jollyrani Mohapatra, facilitated for booking two LIC policies in the name of Rajendra Satpathy making Jollyrani Mohapatra as nominee. Information relating to previous LIC policy taken by the proposer has been suppressed by the accused-Ajay Kumar Das, D.O. of LIC in connivance with LIC Agents-Saroj Kumar Sahoo, Prabhakar Mohapatra and Jollyrani Mohapatra, facilitated for booking two LIC policies in the name of Rajendra Satpathy making Jollyrani Mohapatra as nominee. Further, the aforesaid accused, who is the D.O., certified in the Agents’ Confidential Report/Moral Hazard Report and verified the same being satisfied with the identity of the policy holder as well as the genuineness of facts relating to income, occupation, educational qualification, age, state of health and other information mentioned in the proposal forms of policy holder-Rajendra Satpathy. Similarly, accused-Saroj Kumar Sahoo in connivance with Prabhakar Mohapatra and Jollyrani Mohapatra facilitated for booking three LIC policies. Accused-Mahendra Kumar Padhi in connivance with Prabhakar Mohapatra and Jollyrani Mohapatra booked one LIC policy in the name of Rajendra Satpathy making Jollyrani Mohapatra as nominee. During investigation, it revealed that on 24.11.2005, accused-Jollyrani Mohapatra intimated the Branch Manager of LIC, Bhubaneswar about the death of policy holder-Rajendra Satpathy in a vehicular accident on 30.07.2005. Similarly, death of policy holders-Dutika Satpathy and Netramani Nanda has been reported due to vehicular accident. It came to light that policy holder-Rajendra Satpathy was mentally retarded person. Similarly, policy holder-Dutika Satpathy died at the age of 102. Policy holder-Netramani Nanda died due to old age at the age of 91. It further came to light that the above policy holders have no income to make such policy for such huge amount. The Investigating Officer opined that there has been conspiracy among the accused persons in booking the policies in the names of three deceased persons for such huge amount. The Investigating Officer after completion of investigation has submitted charge-sheet against the five accused persons. 5.While considering the application for discharge, the learned Special Judge (CBI), Bhubaneswar has observed that the five policies have been booked in the name of Rajendra Satpathy for such huge amount of Rs. 70 lakhs and Rs. 15 lakhs in the name of Netramani Nanda and Rs. 14 lakhs in the name of Dutika Satpathy though they have no such income to pay huge amount of premium. The learned Special Judge (CBI) further held that the documents filed at the time of opening of policy did not disclose the income of the policy holders. 15 lakhs in the name of Netramani Nanda and Rs. 14 lakhs in the name of Dutika Satpathy though they have no such income to pay huge amount of premium. The learned Special Judge (CBI) further held that the documents filed at the time of opening of policy did not disclose the income of the policy holders. It was further held that there is no reason as to why Jollyrani Mohapatra should have been described as the nominee in the five policies. Death certificate has been procured by the accused Pravakar Mohapatra with the reasons known to him to defraud the Corporation. Therefore, the learned Special Judge (CBI) has come to the conclusion that there is strong prima facie case against the accused persons for the commission of offences alleged and, therefore, he was not inclined to allow the application under Section 239 of the Code to discharge the accused-Saroj Kumar Sahoo and Ajay Kumar Das. 6.After rejection of the application, the learned Special Judge (CBI), Bhubaneswar has on 24.10.2013 considered the materials placed before him and after being satisfied about the existence of prima facie case framed charge against all the accused persons for the offences under Section 120-B read with Sections 420 and 511 of the IPC and Section 13(1)(d) punishable under Section 13(2) of the P.C. Act. Such orders of framing charge have been assailed in these revision applications. 7.In course of hearing, the learned counsel for the petitioners painstakingly argued regarding the duties and functions of LIC Agents and D.Os. & it is submitted that they have done their duty in good faith and, therefore, charge cannot be framed against them. The learned Standing Counsel for the CBI, on the other hand, stated that the materials on record reveal that a prima facie case is well made out against the present petitioners and rejection of application under Section 239 of the Code as well as framing of charge against the petitioners are perfectly legal and requires no interference. The learned counsel for the petitioners states that the Agent initiates the proposal. The total system of LIC believes the agent and his/her proposed party basing on the facts and documents submitted by the agent for execution of an insurance contract. When agent is a special class performer like Chairman’s club member, then his recommendation is considered with high priority. The learned counsel for the petitioners states that the Agent initiates the proposal. The total system of LIC believes the agent and his/her proposed party basing on the facts and documents submitted by the agent for execution of an insurance contract. When agent is a special class performer like Chairman’s club member, then his recommendation is considered with high priority. It is therefore contended that the order framing charge against the present petitioners are illegal. 8.An examination of the record reveals that the Investigating Officer has found that, in furtherance of their conspiracy, the LIC Agents prepared the Agents' Confidential Report/Moral Hazard Report and certified to have verified and satisfied with the identity of the policy holder as well as the genuineness of the information relating to income, occupation, educational qualification, age, state of health and other information mentioned in the proposal forms of the policy holder, which resulted in booking of three LIC policies. It further reveals that, on 24.11.2005, accused-Jollyrani Mohapatra, nominee intimated the Branch Manager, LIC, Bhubaneswar that Rajendra Satpathy died in a vehicular accident on 27.07.2005 at 8.30 P.M. at Digapahandi road. He was admitted to the M.K.C.G. Medical College & Hospital, Berhampur. He died on 30.07.2005 at 12.40 A.M. Similarly, she also intimated Branch Manager, LIC, Angul that the death of policy holder-Rajendra Satpathy for the other policy. Investigation revealed that Prabhakar Mohapatra has intimated the Registrar of Births & Deaths, Berhampur that Rajendra Satpathy died on 30.07.2005 on the way while shifting to Visakhapatnam Seven Hill Medical due to vehicular accident. Investigation further revealed that Prabhakar Mohapatra has also intimated the Registrar of Births & Deaths and Health Officer, Berhampur that Dutika Satpathy died on 27.04.2005 due to scooter accident. Death certificate was issued accordingly and the same was submitted by Jollyrani Mohapatra to the LIC for death claim. Investigation also revealed that Prabhakar Mohapatra has intimated the Registrar of Births and Deaths and Health Officer, Berhampur that Netramani Nanda died on 27.04.2005 due to Scooter accident. The death certificate was issued accordingly and the same was submitted by Jollyrani Mohapatra to the LIC for death claim. During investigation it revealed that Rajendra Satapathy has got treatment at City Hospital, Berhampur on 28.07.2005 vide OPD Regd No.7313 in which the treating doctor has mentioned that the neurology patient had a Trauma neurological counseling and referred to MKCG Hospital, Berhampur. During investigation it revealed that Rajendra Satapathy has got treatment at City Hospital, Berhampur on 28.07.2005 vide OPD Regd No.7313 in which the treating doctor has mentioned that the neurology patient had a Trauma neurological counseling and referred to MKCG Hospital, Berhampur. There was no evidence that Rajendra Satpathy has got treatment at City Hospital due to vehicular accident on 27.07.2005. Subsequently, Rajendra Satpathy was admitted to MKCG Hospital on 28.07.2005 at 10.45 A.M. in the Male Surgical Ward IV unit with the OPD ticket No.4334/28.07.2005 having writing alleged H/o fall from height at 8.30 PM/27.07.2005. as per the bed head ticket Regd No.1417/28.07.2005 of MKCG Hospital in respect of Rajendra Satpathy. There is also writing that the alleged history of road traffic accident at Gonianala, P.S.-Digapahandi at 8.30 p.m. on 27.07.2005. The bed head ticket has also written that the patient is a mental retarded child and the attendant of the patient was not willing to do X-ray and CT scan though it was very much necessary for treatment. On 29.07.2005, the patient was referred to SCB Medical College for further treatment and was discharged. On 30.07.2005, the dead body of Rajendra Satpathy was brought to MKCG Hospital on the plea that he died while being taken to Visakhapatnam for treatment. Investigation revealed that Santilata Satpathy accompanied by Prabhakar Mohapatra submitted FIR regarding vehicular accident in respect of Rajendra Satpathy at near Gonianala on 27.07.2005 at about 8.30 PM while coming from Digapahandi to Berhampur in a Scooter vide Digapahandi P.S. Case No.125/2005 dated 28.07.2005. Further, investigation revealed that the transfer certificate in respect of Rajendra Satpathy as evidence of date of birth was also submitted to the LIC along with proposal forms for booking of the LIC policy. It revealed that Rajendra Satpathy was never the student of Baunsia High School, Ganjam and the transfer certificate submitted to the LIC for booking Policy is a fake one. Further, it revealed that the school certificates of Siaria School, Siaria in respect of policy holders-Dutika Satpathy and Netramani Nanda showing their date of birth submitted to the LIC for booking the policies are fake. On 08.11.2007, the Investigating Officer in the presence of Tahasildar-cum-Executive Magistrate searched the residence of Dutika Satpathy and found that she was alive and bedridden. Further, it revealed that the school certificates of Siaria School, Siaria in respect of policy holders-Dutika Satpathy and Netramani Nanda showing their date of birth submitted to the LIC for booking the policies are fake. On 08.11.2007, the Investigating Officer in the presence of Tahasildar-cum-Executive Magistrate searched the residence of Dutika Satpathy and found that she was alive and bedridden. It also revealed that on 14.11.2007 she died at her residence due to old age after attending the age of 102 years, which was registered by Registrar, Deaths and Births, Kaniha vide Regd. No.604/20.11.2007 as per the death intimated given by Santilata Satpathy. It was further established from the voter identity card of Dutika Satpathy seized from her residence that she was 80 years as on 01.01.1994. The Investigating Officer after further investigation found that the death of Netramani Nanda on 20.04.2007 at her residence due to old age at the age of 91 years has been registered by Registrar, Deaths and Births, Kaniha vide Regd. No.244/01.05.2007, as per the death information given by Mini Behera, Asha Worker. 9.These materials on record reveal that there has been misrepresentation of the proposal regarding the age, income, mental condition and physical health of the proposers and other relevant information. It is the duty of the LIC Agent and Development Officer to personally contract the proposers. In these cases, all the proposers are dead and from the records, it is apparent that one of the deceased proposers was a mentally ill-person having no income and other deceased proposers are of advanced age. These facts can be seen plainly by the Agent as well as the D.O. Such being the situation, it can be said that in connivance with the agents, employees and D.Os. of the LIC, such fraudulent practice could have been achieved. 10.The learned counsel for the petitioners emphatically argued that in these cases there is no chance of their conviction and, therefore, they should be discharged. 11.In the three Judge Bench decision of the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 30 OCR (SC) 177, it has held that at the time of framing of charge the defence could only be heard but could not be given opportunity to produce evidence for consideration of the Court. 11.In the three Judge Bench decision of the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 30 OCR (SC) 177, it has held that at the time of framing of charge the defence could only be heard but could not be given opportunity to produce evidence for consideration of the Court. In the reported case of Rukmini Narvekar v. Vijaya Satardekar and others, (2008) 41 OCR (SC) 853, the Hon’ble Supreme Court has held that there is no provision in the Code that the accused has right to file material or any document at the stage of framing of charge. The right is only granted at the stage of trial. So, the documents filed by the petitioners before this Court to show the duties and responsibility of the LIC Agents and D.Os. cannot be taken into consideration at this stage. Moreover, such documents do not in any way help the petitioner’s case. In the case of Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460 , the Hon’ble Supreme Court laid down the principles that guides the power and jurisdiction of the High Court in revision application under Section 397 of the Code and the cases where an order of charge can be quashed. 12.The above-stated principles clearly show that inherent as well as revision jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution aforenoticed, in that event, the revision jurisdiction, particularly while dealing with framing of charge, has to be even more limited. 13.Framing of charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the Court is required to consider the record of the case and documents submitted therewith and after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 of the Code is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. 14.It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter Court remedy is available in such cases. Of course, it may be subject to jurisdiction of the Supreme Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases. 15.In the aforesaid case, the Supreme Court, however, held that it is not obligatory for the Judge at the stage of trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Sections 227 or 228 of the Code. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Sections 227 or 228 of the Code. The Hon’ble Supreme Court further held that at the stage of trial the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of guilt at the conclusion of the trial. At the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. 16.The observations made by the Supreme Court in the aforesaid case are squarely applicable to the cases at hand. The material available on the record shows a strong suspicion against the present petitioners. It also indicates that there is enough material on record to show that there is a prima facie case against the petitioners to frame charge against them. In that view of the matter, this Court is of the opinion that no illegality has been committed by the learned Special Judge (CBI), Bhubaneswar in rejecting the application under Section 239 of the Code and thereafter framing of charge against the present accused. Therefore, this Court is not inclined to allow the revision applications filed by the petitioners and, therefore, the revision applications are dismissed being devoid of any merit. Application dismissed.