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2017 DIGILAW 1027 (ORI)

Hari Shankar Upadhaya v. State (Vigilance)

2017-09-12

J.P.DAS

body2017
JUDGMENT J.P.DAS, J. - This is an application under Section 482, of the Cr.P.C. with a prayer to quash the order dated 01.12.2015 passed by the learned Special Judge, Vigilance, Sambalpur in CTR Case No.70 of 2007 rejecting the petition filed by the present petitioner under Section 239 of the Cr.P.C. to discharge the petitioner as an accused from the charges levelled against him under Sections 13 (2) read with Section 13 (d) of the Prevention of Corruption Act, 1988 and under Sections 468/471/120-B of the Indian Penal Code. 2. The case of the prosecution is that the petitioner was posted as D.F.O., Sundargarh (Territorial) during the period from 10.11.1997 to 02.06.2000. Some private persons made applications to the petitioner for removal of certain trees from their recorded plots. The petitioner forwarded the application to the Tahasildar, Rajgangpur calling for a report about the ownership of the concerned land. Thereafter, the petitioner directed for joint verification by Tahasildar and Range Officer which was duly submitted by the said authorities in favour of the applicants. On receipt of a field verification report from the Tahasildar, the tenants were intimated to submit the conversion list and after submission of the same, the petitioner who was the D.F.O. sent the said conversion list of the trees to the Range Officer to pass the Timber and Firewood and also directed Assistant Conservator of Forests to issue T.T. permit in favour of the tenants to remove the trees from the recorded lands. All these were done during the year 1999-2000. In the year 2001 the Inspector of Vigilance, Sundargarh Vigilance Squad drew up one F.I.R. on receipt of some allegation that the tenants on the strength of the T.T. permit issued in their favour, had removed some trees from the Government land in connivance with the forest and revenue officials. The field verification was made and investigation was taken up examining the witnesses and the documents. On completion of investigation, charge sheet was submitted in the year 2007 with the allegations that the present petitioner as D.F.O. along with other forest and revenue officials entered into a criminal conspiracy being hand in gloves with one Pawan Kumar Ghananiar @ Agrawal, a forest contractor and facilitated removal of trees from the Government land, as a result of which, the Government sustained loss of Rs.4,64,988/-. The charge sheet was submitted against the present petitioner, the then Range Officer Ashok Kumar Tripathy as well as above named forest Contractor and one revenue supervisor. 3. It has been submitted on behalf of the petitioner that excepting some imaginary allegations that the petitioner in connivance with one private forest contractor and other officials made wrong demarcation of the lands thereby facilitating removal of trees from the Government land, there was absolutely no material to implicate the present petitioner with the alleged offences on the admitted facts situation of the case. It was submitted that the petitioner was working as D.F.O. during the relevant period and on receipt of applications from the private individuals, he forwarded the same to the concerned Tahasildar who along with the concerned Forest Range Officer conducted joint verification and field enquiry and submitted the report to the D.F.O. Thereafter, the D.F.O. followed all official formalities and directed for issuance of T.T. permit as per Rules. Thus, admittedly, there was absolutely no role played by the present petitioner in making the field enquiry or demarcating the lands of the private individuals so as to fasten him with the liability of facilitating removal of trees from the Government land. It was submitted that some statements have been manufactured by the Investigating Agency mentioning that the said forest contractor was coming to the office and was getting the papers signed by the present petitioner and that none of the private individual applicants had ever come to the said office for the said purpose. It was further submitted that even if the argument is conceded to be true that the official formalities were looked after by one forest contractor, still there is no material on record to show that the present petitioner had any role to play in demarcating the alleged lands nor there is any whisper that the present petitioner ever influenced or tried to influence the revenue and other officials to submit a false report. Hence, it was submitted that the learned trial court without proper application of judicial mind, framed the charges merely basing on the charge-sheet which has dragged the petitioner to unnecessary criminal liability for which he was never responsible. 4. Hence, it was submitted that the learned trial court without proper application of judicial mind, framed the charges merely basing on the charge-sheet which has dragged the petitioner to unnecessary criminal liability for which he was never responsible. 4. It was submitted by the learned Counsel for the State, Vigilance, that the evidence collected in course of investigation revealed that one forest contractor was managing the entire affairs and the present petitioner being head of the system, did not make any tangible effort to be satisfied that the joint verification report was correct and also did not make any cross verification by preparing a pro-forma prescribed by the Forest Department in that regard. Thus, it was submitted that the petitioner had criminal intention of committing the alleged acts. It was further submitted that the plea taken by the petitioner could not have been considered at the time of framing of charge and can only be considered in course of trial. 5. In this regard it was submitted on behalf of the petitioner that it was incumbent upon the D.F.O. to make a further enquiry in case of any discrepancy found out by him in the joint verification report and if he considers it expedient, he may proceed for a fresh check either by himself or through any other forest officials. It was submitted that in this case, there was no occasion to find out any discrepancy in the report since the joint verification was conducted by the revenue authorities who are the appropriate authorities to demarcate private and Government lands. It was further submitted that the contention raised on behalf of the prosecution regarding a pro-forma prescribed by the Forest Department, is not correct since as per information obtained on behalf of the petitioner under the R.T.I. Act no such proforma has ever been prescribed by the Forest Department. Relying on a decision of the Hon’ble Apex Court reported in (2010) 2 SCC 398 (P.Vijayan Vrs. State of Kerala and another) it was submitted that at the stage of framing of charge, the Court has to find out whether or not there were sufficient grounds for proceeding against the accused which takes within its fold the nature of the evidence recorded by the Police or the documents produced before the Court which ex-facie disclosed that there was suspicious circumstances against the accused so as to frame a charge against him. The trial court is not to act as merely a post office to take the cognizance of the offences or proceed against the accused merely on the allegations in the charge-sheet submitted by the Investigating Agency. Of course, the Court at that stage is not required to make a roving enquiry into the pros and cons of the matter or to weigh the evidence but it must be prima-facie satisfied that there is a grave suspicion as to the guilt of the accused so as to proceed against him. It was held in the case of P. Vijayan (Supra): “If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion as to the guilt of the accused, the trial Judge will be empowered to discharge the accused and at this stage the trial Judge is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” in Section 227 Cr.P.C. clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.” 6. It was also held by the Hon’ble Apex Court in the case of State of Bihar vrs. In assessing this fact, it is not necessary for the Court to enter into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.” 6. It was also held by the Hon’ble Apex Court in the case of State of Bihar vrs. Ramesh Singh (1977) 4 SCC 39 that : “if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted, before it is challenged in the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” In the case at hand, as detailed hereinbefore, excepting the allegation that one forest contractor was coming to the office and was looking after the affairs which created a suspicion that the present petitioner connived with him resulting in loss to the State exchequer, there is absolutely no other material showing any role played by the present petitioner in the entire process, more so in the process of demarcation of the lands so as to wrongly demarcate some Government lands. As quoted herein before mere suspicion is distinguished from grave suspicion as to the guilt of the accused. 7. Considering the materials placed before the Court and the submissions made on behalf of the parties, I am of the considered view that there was no sufficient material against the accused so as to be charged for the alleged offences and to face the trial being fastened with the criminal liability for the acts in which he had no role to play. 8. Accordingly, the application is allowed and the petitioner is discharged from the charges under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and under Sections 468/471/120-B of the Indian Penal Code in C.T.R. Case No.70 of 2007 on the file of learned Special Judge, Vigilance, Sambalpur setting aside the impugned order dated 01.12.2015 passed by the concerned Court. The CRLMC is disposed of accordingly. CRLMC disposed of.