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2016 DIGILAW 1054 (ORI)

RAMA CHANDRA SETHY v. DANDAPANI SAHU

2016-11-07

S.PUJAHARI

body2016
JUDGMENT : S. Pujahari, J. - I have heard the learned counsel appearing for the petitioners and Mr. P.K. Pani, the learned Standing counsel appearing for the Vigilance Department. 2. This application under Section 482 of the Criminal Procedure Code (for short "Cr.P.C ") has been filed to quash the orders dated 17.04 1998, 19.06.1998 and 07.02.2002 of the learned Special Judge (Vigilance), Berhampur passed in I.C.C. Case No. 1 of 1998. 3. Brief facts of the case is that the opposite party No. 1 filed I.C.C. Case to. 1 of 1998 under Section 13(2) read with Section 13(1)(d) of the Prevention of ' Corruption Act before the Special Judge (Vigilance), Berhampur against the present petitioners and four others alleging against them regarding demand of bribe. The earned Special Judge (Vigilance), Berhampur vide order dated 17.04.1998 in exercising power under Section 156(3) of Cr.P.C. directed the O.I.C., Vigilance Police Station, Berhampur to investigate into the allegations. On 29.04.1998, some of the accused persons appeared through advocate and filed a petition to recall the order dated 17.04.1998 and the learned Special Judge (Vigilance), Berhampur vide order dated 19.06 1998 rejected that petition. On 03.10.2001 the accused persons filed another petition to recall the order dated 1.7.04.1998 and the learned Special Judge (Vigilance), Berhampur vide order dated 07.02.2002 held that there was no convincing ground to take a different view than one taken by that Court as per order dated 19.06.1998. The learned Special Judge (Vigilance), Berhampur, inter-alia, held that the petitioners had no locus standi to challenge the prosecution case. The said order dated 07.02.2002 is under challenge in this Criminal misc. case. 4. During course of hearing of this criminal misc. case, the learned counsel for the petitioners submitted that the order of the learned Special Judge (Vigilance), Berhampur directing investigation under Section 156(3) of Cr.P.C. without valid sanction of the competent authority for prosecution of the accused persons is not sustainable in law. After receipt of the complaint petition, the learned Special Judge (Vigilance), Berhampur should have examined the complainant and proceeded under Section 202 of Cr.P.C. which was the only course opened to the learned Special Judge (Vigilance), Berhampur under Chapter-XV of Cr.P.C. 5. On the other hand, Mr. After receipt of the complaint petition, the learned Special Judge (Vigilance), Berhampur should have examined the complainant and proceeded under Section 202 of Cr.P.C. which was the only course opened to the learned Special Judge (Vigilance), Berhampur under Chapter-XV of Cr.P.C. 5. On the other hand, Mr. Pani the learned standing counsel appearing for the Vigilance Department supported the impugned orders and further contended that the petitioners have no locus standi to challenge the order as till now the Court has not taken cognizance of the matter. 6. The impugned order dated 19.06.1998 shows that the learned Special Judge (Vigilance), Berhampur while rejecting the contention of the accused persons had placed reliance on a decision of the Apex Court in the case of R.S. Nayak v. A.R. Antualay, AIR 1984 SC 684 . In the said order, the learned Special Judge (Vigilance), Berhampur held that since no cognizance had been taken of the offences alleged and the Court had not decided for issuance of any process against any or all the accused persons, the accused-petitioners had no locust standi to appear in the Court and challenge the said order. So, in such facts, situation, it cannot be said that the Court had taken cognizance of the offences. When cognizance was not taken and when no process was issued to the accused persons, have they any locus standi to challenge the impugned order ? In the order dated 19.06.1998, the learned Special Judge (Vigilance), Berhampur also held that unless and until cognizance is taken and the Court decides to issue process, they cannot be legally turned an accused persons. 7. At this stage, it would be appropriate to refer to a three Judge Bench decision of the Apex Court in the case of Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, AIR 1976 S.C. 1672 wherein it has been held as follows : "14. 7. At this stage, it would be appropriate to refer to a three Judge Bench decision of the Apex Court in the case of Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, AIR 1976 S.C. 1672 wherein it has been held as follows : "14. xxx Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taker cognizance of the offence within the meaning of Section 190(1)(a), if, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence." It would also be appropriate to refer to a Full Bench decision of the Allahabad High Court in the case of Father Thomas v. State of U.P. and Another, (2011) Cri.L.J. 2278 wherein the Full Bench of the Allahabad High Court referring to a series of decision of the Apex Court and other High Courts, in paragraphs - 32, 46 and 55 held as follows : "32. In the light of the aforesaid discussion, it is abundantly clear that the prospective accused has no locus standi to challenge a direction for investigation of a cognisable case under Section 156(3), Criminal Procedure Code before cognizance or issuance of process against the accused. The first question is answered accordingly. 46. As the direction for investigation passed by the Magistrate under Section 156(3) is purely interlocutory in nature, and involves no substantial rights of the parties, we are of the view that the bar under Section 397(2) Criminal Procedure Code to the entertainment of a criminal revision can also not be circumvented by moving an application under Section 482 Criminal Procedure Code. As observed in State, through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and others, in paragraph 29. 55. As observed in State, through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and others, in paragraph 29. 55. In view of the aforesaid, our answer is that the revision against that the order under Section 156(3) of the Code directing the police to investigate is clearly an interlocutory order and a Criminal Revision (as also an order under Section 482 Criminal Procedure Code against the same) is barred in view of Section 397(2) of the Code." 8. Admittedly, no section order was obtained from the competent authority for prosecution of the accused persons by the time of filing of the complaint petition. It is also not in dispute that after receipt of the complaint petition, the ed Special Judge (Vigilance), Berhampur had directed the O.I.C., Vigilance Police Station under Section 156(3) of Cr.P.C. for investigation. Neither cognizance of the offences was taken nor any process was issued against the accused persons by the learned Special Judge (Vigilance), Berhampur. 9. Therefore, keeping in view the settled position of law as cited above, it is held that the orders of the learned Special Judge (Vigilance), Berhampur directing an investigation under Section 156(3) of Cr.P.C. do not suffer from any illegality, so also the finding of the learned Special Judge (Vigilance), Berhampur holding that the petitioners had no locus standi to challenge the said order do not suffer from any perversity and the same needs no interference by this Court. 10. Hence this CRLMC stands dismissed being devoid of any merit. 11. Before parting with this case, it may be mentioned here that in the meantime after completion of investigation, the Vigilance has submitted charge-sheet against the petitioners and some others. In case the learned Special Judge (Vigilance), Berhempur would take cognizance of the offences then the petitioners, if so advised, may raise all their contentions before the learned Special Judge (Vigilance), Berhampur who shall address the same in accordance with law without being influenced by any of the observations made by this Court in this order which are only meant for just decision of the present CRLMC. Final Result : Dismissed