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2017 DIGILAW 1359 (ORI)

Gobardhan Roul v. State of Orissa

2017-11-27

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. Heard Mr. Prasanta Kumar Jena, learned counsel appearing for the petitioner and Mr. Prasanna Kumar Pani, learned Addl. Standing Counsel appearing for the Vigilance Department. 2. In this application under section 482 of Cr.P.C., the petitioner has challenged the impugned order dated 21.07.2003 passed by the learned Chief Judicial Magistrate, Balasore in V.G.R. Case No. 30 of 2000 in taking cognizance of the offences under sections 409, 468, 471 read with section 120-B of the Indian Penal Code and sections 7 & 8 of the Essential Commodities Act, 1955. 3. It appears that on 28.06.2000 on the basis of the first information report submitted by one A.K. Ashe, Inspector of police, Vigilance, Balasore Division, Balasore, Balasore Vigilance P.S. Case No. 30 of 2000 dated 28.06.2000 was registered under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act and sections 468, 471, 409 read with section 34 of the Indian Penal Code and section 7 of the Essential Commodities Act against Suryanarayan Sahoo, Ex-Storage agent, Balasore Municipality and Atithi Charan Sahoo, Ex-Marketing Inspector, Balasore. After completion of investigation, charge sheet was submitted against the aforesaid two persons against whom the F.I.R. was registered so also the petitioner who is stated to be the Asst. Civil Supplies Officer. 4. In the first information report, it is mentioned that during the period from May 1998 to July 1998 total quantity of 13,866 tins of palm oil was shown to have been received in Balasore Municipality area and the cost of one tin of palm oil was Rs.542.20 paisa and therefore, the value of total quantity of palm oil comes to Rs.75,18,145.20 paisa. It is further mentioned that the total quantity of palm oil which was issued by coaccused S.N. Sahu, Ex-Storage agent was 625 tins, total value of which comes to Rs.3,38,875.00 @ Rs.542.20 paisa per tin and the quantity of palm oil black marketed by the said co-accused comes to 13,241 tins and the cost comes to Rs.71,79,290.00 and the same has been done in connivance with Atithi Charan Sahu, Ex-Marketing Inspector of Balasore Municipality. 5. During course of investigation, it was found that 35 retailers of Balasore town proved that they have received only 625 tins from S.N. Sahu and claimed that the signatures on the Sales Day Book etc. were forged. 5. During course of investigation, it was found that 35 retailers of Balasore town proved that they have received only 625 tins from S.N. Sahu and claimed that the signatures on the Sales Day Book etc. were forged. The specimen signatures, admitted signatures were sent for expert’s examination along with the questioned documents. The handwriting expert opined that the signatures are not genuine and on further investigation, it was ascertained that there is no entry in the incoming and outgoing registers of the vehicle in Gopalpur, Khurda and Jagatpur bypass check gate regarding the passing of the trucks carrying palm oil to Balasore side. The R.T.O., Cuttack also proved such aspects. The owners of the trucks recorded to have transported palm oil also proved that their trucks have not been used for transportation of palm oil to Balasore on the dates in question. On the basis of such materials, the investigation agency came to hold that the accused Marketing Inspector as well as the petitioner who was the CSO were in the charge of PDS palm oil have falsely submitted arrival/storage of palm oil and distribution of the same and conspired with Sri S.N. Sahu, Ex-Storage agent, forged documents and used the same as genuine and the distribution of 13866 tins of palm oil was shown during the period from May 1998 to July 1998 against the actual distribution of 625 tins and thereby misappropriated a sum of Rs.1,38,567.95 paisa of the government. 6. Mr. Prasanta Kumar Jena, learned counsel appearing for the petitioner raised two specific points for challenging the impugned order of taking cognizance. It is the contention of the learned counsel for the petitioner that since the petitioner’s name does not find place in the first information report which has been specifically lodged against two persons namely Surya Narayan Sahu, Ex-Storage agent of Balasore Municipality area and Atithi Ch. Sahu, Ex-Marketing Inspector of Balasore, the submission of charge sheet against the petitioner is per se illegal without any clinching material against him collected during course of investigation. Sahu, Ex-Marketing Inspector of Balasore, the submission of charge sheet against the petitioner is per se illegal without any clinching material against him collected during course of investigation. It is further contended that since the petitioner is a public servant and he was discharging his official duty at the relevant point of time, if anything was alleged to have been done during performance of his duty then without obtaining sanction as mandated under section 197 of Cr.P.C., the order of taking cognizance is vitiated in the eye of law. 7. Mr. Prasanna Kumar Pani, learned Addl. Standing Counsel appearing for the Vigilance Department on the other hand submitted that during course of investigation, it was found that the petitioner had submitted five numbers of arrival reports regarding arrival of the palm oil in the godown of accused storage agent Surya Narayan Sahu in between 11.05.1998 to 13.06.1998 within which the accused storage agent had lifted 13,266 tins of palm oil in twenty three numbers of trucks. It was further revealed during course of investigation that none of the twenty three trucks ever reached Balasore crossing the three check gates in between Khurda and Balasore. It was further found out during physical verification that the stock of palm oil and distribution of the same is also false. He further contended that in a case of this nature, no sanction is necessary and therefore, the learned Chief Judicial Magistrate has not committed any illegality in taking cognizance of the offences when prima facie case is well made out against the petitioner. 8. Adverting to the contentions raised by the learned counsels for the respective parties, it is no doubt true that the first information report was lodged against two persons who are the Ex-Storage Agent of Balasore Municipality area and Ex-Marketing Inspector of Balasore but when during course of investigation, materials also came against the petitioner as contended by the learned counsel for the Vigilance Department then it cannot be said that the investigation agency is precluded from filing charge sheet against the petitioner merely because his name does not find place in the first information report. Law is well settled that the first information report is not the encyclopedia of the case and be all and end all of the matter. Law is well settled that the first information report is not the encyclopedia of the case and be all and end all of the matter. When during course of investigation, it was found that the ingredients of the offences under which the charge sheet is likely to be submitted are also made out against the petitioner, I am of the view that the investigating agency was quite justified in submitting the charge sheet. 9. So far as the sanction aspect is concerned, in the case of Om Kr. Dhankar Vs. State of Haryana reported in (2012) 52 Orissa Criminal Reports 63, where the complainant challenged the order of quashing the issuance of process against the accused for offence punishable under sections 420, 406 and 161 of the Indian Penal Code, relying on the decision of Prakash Singh Badal Vs. State of Punjab reported in (2007) 1 SCC 1 , it was held that sanction of the competent authority for prosecuting the accused for such offence is not required as by no stretch of imagination by their very nature such offences be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In case of Sarat Chandra Dehury Vs. Sankirtan Behera reported in 1989 (1) Orissa Law Reviews 321, it is held that the act of misappropriation or criminal breach of trust of Gram Panchayat fund cannot be held to have been done while the Sarpanch acts or purports to act in the discharge of his official duty. Criminal misappropriation and criminal breach of trust are offences of purely personal character unconnected with any official duty. Therefore, prior sanction of the Govt. under section 197 of the Code for the prosecution of the accused for commission of offences under sections 409 and 420 of the Indian Penal Code was not necessary. In case of Iswar Chandra Behera Vs. State of Orissa reported in (2003) 25 Orissa Criminal Reports 36, it is held that preparing false records and making false endorsement in Govt. records as alleged by the prosecution cannot come within the purview of due discharge of official duty and therefore, no sanction under section 197 Cr.P.C. is necessary. 10. In case of Iswar Chandra Behera Vs. State of Orissa reported in (2003) 25 Orissa Criminal Reports 36, it is held that preparing false records and making false endorsement in Govt. records as alleged by the prosecution cannot come within the purview of due discharge of official duty and therefore, no sanction under section 197 Cr.P.C. is necessary. 10. In view of the proposition of law as enumerated in the aforesaid decisions, considering the factual scenario, I am of the humble view that in a case of this nature, no sanction as contemplated under section 197 of Cr.P.C. is necessary for the Court to take cognizance of the offences basing on the charge sheet submitted by the investigating agency. 11. Therefore, both the submissions made by the learned counsel for the petitioners having failed, I am not inclined to invoke my inherent power under section 482 Cr.P.C to interfere with the impugned order dated 21.07.2003 passed by the learned C.J.M., Balasore in V.G.R. Case No.30 of 2000. 12. Accordingly, the CRLMC application stands dismissed. 13. The order of interim stay dated 08.08.2005 passed in Misc. Case No.1365 of 2005 stands vacated. 14. Since it is a case of the year 2000, the learned trial Court shall do well to expedite the trial.