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2014 DIGILAW 409 (ORI)

Kamdev Dip v. State of Orissa

2014-07-15

I.MAHANTY

body2014
Judgment I. Mahanty, J. The present application under Section 482 Cr.P.C. has come to be filed by the petitioners seeking to challenge an order of cognizance dated 15.12.2010 passed by the learned Special Judge (Vigilance), Balangir in C.T.R. Case No.15 of 2010, inter alia, on the ground that the composite order of cognizance and issuance of process passed by the learned Special Judge (Vigilance), Balangir had been passed in a mechanical manner without prima facie satisfaction regarding the complicity of the petitioners in the alleged commission of the offence and as such the impugned order indicates non-application of judicial mind. 2. Mr. T. Nanda, learned counsel for the petitioners contended that Section 190 Cr.P.C. which stipulates the requirement of taking of cognizance and Section 204 Cr.P.C. deals with the requirement for issue of process and consequently contends that an order of cognizance cannot be equated with the issuance of process and an order of cognizance does not ipso facto require issuance of process which can only be issued by a Magistrate taking cognizance of an offence to form an opinion whether there is sufficient ground for proceeding or not. Accordingly, it is submitted that it would be clear from the order impugned that the court below has formed no opinion regarding his subjective satisfaction about commission of alleged offences by the petitioners and the court below has erroneously equated the order of cognizance with that of issuance of process in a mechanical manner without recording his prima facie satisfaction. In this respect, reliance has placed by the learned counsel for the petitioners on the judgment rendered by this Court in the case of Saroj Kumar Mahapatra V. State of Orissa, (2008) 39 OCR 895 as well as several other judgments referred therein. In the aforementioned case, this Court came to conclude that the order of taking cognizance impugned therein did not disclose the prima facie satisfaction of the trial court regarding availability of materials for taking cognizance against the petitioners, inasmuch as the subjective satisfaction of the trial court with regard to the complicity of the petitioners 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. Accordingly, the order of cognizance was set aside and the matter was remitted back to the trial court to peruse the materials on record and thereafter to arrive at prima facie satisfaction as to whether materials were available for taking cognizance of the offence against the petitioners. 3. Mr. P.K. Pani, learned Additional Standing Counsel for the Vigilance Department, on the other hand, contended that the fact situation that arose for consideration in the case of Saroj Kumar Mahapatra (supra) and the case at present hand are distinct and, therefore, the earlier judgment of this Court would have no application to the present circumstances of the case. In this respect, it would be relevant to quote the order of cognizance in the case of Saroj Kumar Mahapatra (supra), which is as follows: “Case record is received from C.J.M., Berhampur. Register. Cognizance U/s.13(1)(d) r/w Sec.13(2) of P.C. Act is taken against the accused-Prahalad Palo and others. Issue summons to the accd. Persons, fixing 12.9.2002 for appearance of accd.” And, in the present case, the impugned order reads as under: “Record is received from the court of C.J.M., Sambalpur and taken to my file. Register. Charge sheet No.44 dt.16.8.10 is received. Perused the F.I.R, C.S., C.Ds. and other connected papers available on records. The materials available on record reveals commission of offences U/s.13(2) r/w 13(1)(e) P.C. Act/ 109 IPC. Hence cognizance of the said offences is taken against the accused person. Issue summons to the accused persons fixing 5.1.11 for appearance.” It is submitted on behalf of the State that in the case at hand, the trial court has applied its judicial mind and in its order taking cognizance and the same would be clearly visible from the words “perused”, “reveals commission of offence” and “found that there is prima facie case”. 4. In the light of the submissions as recorded hereinabove, it would also be relevant at this stage to take note of the basic allegations against the present petitioners which would appear from the records appended to the application. It appears that Sambalpur Vigilance P.S. Case No.4 of 2008 came to be registered on 31.01.2008 under Section 13(2) r/w 13(1)(e) of the P.C. Act, 1988 purportedly on the basis of an acquisition of disproportionate assets by the petitioners. 5. It appears that Sambalpur Vigilance P.S. Case No.4 of 2008 came to be registered on 31.01.2008 under Section 13(2) r/w 13(1)(e) of the P.C. Act, 1988 purportedly on the basis of an acquisition of disproportionate assets by the petitioners. 5. On perusal of the records of the case here, it is clear from the impugned order that it is not necessary for a Court to record a detailed discussions on the merits of a case so as to find out if the allegations and the charges are true or not, but the Court has to apply its judicial mind and test the materials on records. In the case at hand, I am satisfied that the order of cognizance in the present case which indicates perusal of the F.I.R. as well as charge sheet, seizure list and sanction order itself clearly establishes the existence of a prima facie case and, therefore, I am of the considered view that the judgment of this Court in the case of Saroj Kumar Mahapatra (supra) do not apply the fact situations that arise for consideration in the present case and are distinct on facts. Consequently, the present CRLMC has no merits and stands dismissed.