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2018 DIGILAW 685 (ORI)

Bhabeswar Rana v. State of Odisha (Vigilance)

2018-07-25

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This revision is directed against the order dated 13.09.2017 passed by the learned Special Judge, Vigilance, Phulbani in G.R. Case No. 70 of 2013 (V)/G.R. Case No. 29 of 2011(V) framing charges against the present petitioner under Section 12 of the Prevention of Corruption Act, 1988, rejecting an application filed on behalf of the petitioner under Section 239 of the Cr.P.C. to discharge him from the alleged offences. 2. Prosecution case is that the present petitioner as informant lodged an F.I.R. before the Deputy Superintendent of Police, Vigilance, Phulbani on 23.06.2011 alleging that he had been to the electric office at Manamunda and requested the Junior Engineer concerned, the principal accused, Brahmananda Sahu for giving electric connection to his shop. He alleged that the said Junior Engineer demanded an amount of Rs. 20,000/- for giving such commercial connection and the request made by the informant-petitioner to waive such demand, was not paid heed to. Basing on his F.I.R., Vigilance P.S. Case No. 29 of 2011 was registered under Section 7 of the Prevention of Corruption Act and a trap was laid on 26.06.2011. It is further alleged that the concerned Junior Engineer was caught red handed by the vigilance officials with tainted money of Rs. 20,000/- and the investigation was taken up. 3. In course of investigation, the witnesses were examined. But, the informant-petitioner while giving his statement under Section 164 of the Cr.P.C. resiled from his earlier version denying any such demand by the concerned Junior Engineer or payment made by him. Since he resiled from his earlier version he along with the concerned Junior Engineer was charge-sheeted under Section 13(2) read with Section 13(1)(d)/7 and 12 of the Prevention of Corruption Act, 1988 with the allegation that the present petitioner by not supporting his earlier version, abetted the commission of the alleged offence by co-accused. 4. Both the accused persons filed separate petitions under Section 239 of the Cr.P.C. and by the impugned order, the learned trial Court rejecting the applications framed charges as per the charge-sheet subsequently. 5. It is submitted in the present application that the learned trial Court seriously erred in law by holding that the petitioner having resiled from his earlier statement became an abettor to commission of the offence by the co-accused. 5. It is submitted in the present application that the learned trial Court seriously erred in law by holding that the petitioner having resiled from his earlier statement became an abettor to commission of the offence by the co-accused. It was submitted on behalf of the petitioner that the alleged trap was laid on 24.06.2011 wherein the concerned Junior Engineer was allegedly caught red handed and the statement of the petitioner was recorded on 01.11.2011. Thus, it was submitted that the petitioner having his statement five months after the alleged occurrence, could not have been an abettor by retrospective effect for the offence. It was further submitted that in this context the observation of the learned trial Court that by resiling from his earlier statement, the petitioner relegated to the date of occurrence to be an abettor is unacceptable in law. It was also submitted by the learned counsel for the petitioner that simply because the petitioner did not support the prosecution case in his statement, he cannot be charged as an abettor in view of the settled proposition of law as has been held in a decision of this Hon’ble Court reported in (2017) 67 OCR 81 (Kamal Kumar Nanda versus State of Orissa, Vigilance). 6. Per contra, it was submitted by learned Counsel for the State, Vigilance, that, the petitioner submitted the F.I.R. and also participated in the operation and gave the tainted money to the co-accused. Further the other witnesses who took part in the operation have also supported the prosecution case in their statements. Hence, by deviating from his earlier version while giving his statement under Section 164, Cr.P.C. the petitioner became a conspirator to protect the offender and thereby became liable under Section 12 of the Prevention of Corruption Act. It was further submitted that a conspiracy is a continuing offence which continues to subsist till its executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B of the I.P.C.. Thus, it was submitted that the observation of the trial Court that the act of the petitioner on a subsequent date, can be relegated to the date of commission of offence was correct. 7. Thus, it was submitted that the observation of the trial Court that the act of the petitioner on a subsequent date, can be relegated to the date of commission of offence was correct. 7. Firstly, the petitioner has been charge-sheeted for the offence under Section 12 of the Prevention of Corruption Act, not under 120-B of the I.P.C. Section 12 of the P.C. Act provides that whoever abets any offence punishable under Section 7 or Section 11 of the Act whether or not that offence is committed in consequence of that abetment, shall be liable for punishment. Thus, the abetment always precedes the act of commission or omission whether implemented or not in order to create the liability. 8. It is profitable to note here that absolutely in a similar circumstance like the present case, on detailed discussion on the matter of abetment and liability of the accused, this Court in the case of Kamal Kumar Nanda (supra) has observed that if a witness in his deposition during trial deviates from his previous statement recorded either under Section 161, Cr.P.C. or Section 164, Cr.P.C., it cannot be said that he has abetted the accused who is facing trial for commission of an offence. Reference has been made to Section 107 of the I.P.C. wherein the explanation-2 provides: “whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that Act.” Thus, it was held that ‘abetment’ as per Indian Penal Code involves active complicity on the part of the abettor at a point of time prior to or at the time of the actual commission of the offence and it is the primary requirement that the abettor substantially assists the main accused towards the commission of the offence. In the instant case, as stated earlier, the petitioner did not support the prosecution case during the investigation while recording his statement under section 164 of the Cr.P.C.. In the cited case as aforesaid, the petitioner who was charged under Section 12 of the P.C. Act resiled from his earlier statement while deposing in the Court during the trial and it has been held that the alleged acts did not make out an offence under section 12 of the P.C. Act against the accused. 9. In the cited case as aforesaid, the petitioner who was charged under Section 12 of the P.C. Act resiled from his earlier statement while deposing in the Court during the trial and it has been held that the alleged acts did not make out an offence under section 12 of the P.C. Act against the accused. 9. Being in full agreement with the observation made in the cited decision in Kamal Kumar’s case (supra), I find absolutely no reason to take a different view to hold that the alleged acts against the petitioner made out the offence under Section 12 of the Prevention of Corruption act against him. 10. In view of the aforesaid facts, circumstances and the position of law, the impugned order dated 13.09.2017 passed by the learned Special Judge, Vigilance, Phulbani in G.R. Case No. 70 of 2013 (V)/G.R. Case No. 29 of 2011 (V) is set-aside and the petitioner is discharged from the offence punishable under Section 12 of the Prevention of Corruption Act, as alleged. The CRLREV is disposed of accordingly. CRLREV disposed of.