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2018 DIGILAW 703 (ORI)

Purna Chandra Das v. State of Odisha, Vigilance

2018-07-31

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This common order shall dispose of the aforesaid five applications filed under Section 482 of the Cr.P.,C. seeking exercise of inherent jurisdiction of this court assailing the judgment dated 03.07.2018 and the order of the said date passed by the learned First Additional Sessions Judge-cum-Special Judge, Vigilance, Bhubaneswar in T.R. Case No.62 of 2012. 2. All the five petitioners along with another co-accused faced trial in the aforesaid case for the offences punishable under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and under Sections 420/120-B of the Indian penal Code. 3. The allegation made by the prosecution in brief, was that the present applicants, excepting Sri Ashis Kumar Nayak, were officials of Orissa Rural Housing Development Corporation (in short, ‘ORHDC’). During the year 2000-2001 a financial assistance of Rs.2.5 crore was made available to HUDCO for establishing twenty building centres in coastal area of the State and the matter was entrusted to ORHDC to prepare a plan of action. One of such building was proposed to be constructed at Balipatna. One N.G.O. in the name of GRAMYA BIKAS MANCHA, of which the petitioner Asish Kumar Nayak was the Secretary, was recommended by the Collector, Cuttack to the Managing Director, ORHDC for being entrusted to construct the building centre. It was alleged that without completion of formalities and allotment of land in favour of the N.G.O., the work was executed and all the accused persons allegedly conspired to release the funds in favour of the said N.G.O. ignoring rules, regulations, circulars and guidelines applicable for disbursement and use of such financial assistance. The matter was taken up by the Vigilance and it was found out that the amount of Rs.22,32,510/- was released in favour of the N.G.O. on the basis of fabricated documents thereby causing severe loss to the State Exchequer. 4. The learned trial Court on completion of trial found all the accused persons excepting Ashis Kumar Nayak guilty of the offences punishable under Section 13 (2) read with Section 13 (1) (1) (d) of the Prevention of Corruption Act, 1988 and Sections 420/120-B of the Indian Penal Code and accused Ashis Kumar Nayak was found guilty of the offences punishable under Sections 420/120-B of the Indian Penal Code. All the accused persons were convicted accordingly. The judgment was pronounced on 03.07.2018. All the accused persons were convicted accordingly. The judgment was pronounced on 03.07.2018. At the time of pronouncement of the judgment, hazira was filed only by two accused persons namely, Sanjay Mohanty and Ashik Kumar Nayak but on call only accused Sanjay Mohanty was found present. Other accused persons were absent and learned Counsel on behalf of the accused Pradeep Kumar Rout and Chitta Ranjan Mallik had filed petition under Section 317, Cr.P.C. Learned Counsel for the accused Vinod Kumar filed a petition for time and learned Counsel for the accused Pradeep Kumar Rout filed another petition seeking time for argument. Learned trial court mentioned in the order-sheet that the case was posted for judgment directing all the accused persons to remain present physically. Hence, rejecting the petition for time, the learned trial Court pronounced the judgment since one of the co-accused was present. Thereafter, he heard the accused Sanjay Mohanty on the question of sentence and awarded sentences for different offences. Simultaneously, he directed issuance of N.B.W. (A) against the absent accused persons, namely, the present petitioners. 5. In the present application, the petitioner challenged the aforesaid pronouncement of judgment and subsequent issuance of N.B.W. (A) against the petitioners with the submissions that the learned trial Court committed gross illegality in conducting the trial so also, in rejecting the petitions filed on behalf of the accused persons. It was submitted by learned Counsel appearing for the petitioners that the statements of the accused persons recorded under Section 313, Cr.P.C. was not properly done .The prayer of some accused persons to examine defence witnesses was not properly considered and the learned trial Court closed the hearing abruptly. Applications to recall the Investigating Officer and to examine one of the petitioners as a defence witnesses were rejected on flimsy grounds. Further, no arguments were heard from either side but it was wrongly recorded by the learned trial Court that arguments were heard. Lastly, it was submitted that since the learned Presiding Officer of the trial court was to be relieved on the same date i.e. 03.07.2018, he hurriedly pronounced the judgment ignoring the mandates of law and without affording reasonable opportunities to the accused persons to place their case. Lastly, it was submitted that since the learned Presiding Officer of the trial court was to be relieved on the same date i.e. 03.07.2018, he hurriedly pronounced the judgment ignoring the mandates of law and without affording reasonable opportunities to the accused persons to place their case. On the aforesaid submissions, it has been prayed to quash the judgment pronounced by the learned trial Court so also to set aside the order directing issuance of N.B.W. (A) against the petitioners in exercise of inherent power under Section 482, of the Cr.P.C. 6. In course of hearing, without entering into the merits of the submissions as to the illegalities and irregularities allegedly committed by the learned trial Court, a question was raised as to whether the present applications filed by the petitioners under Section 482 of the Cr.P.C. are legally maintainable or not. The question was raised that after a judgment has been finally pronounced by a trial Court, the only remedy available to the convicts is to prefer an appeal and hence, instead of availing the appellate forum, whether an application under Section 482 of the Cr.P.C. can be entertained by this Court. 7. It was contended by the learned Counsel for the petitioners separately that gross irregularities and illegalities have been committed by the learned trial Court and the judgment has been hurriedly pronounced. It was further submitted that since the sentences have not been awarded against the present petitioners, the pronouncement of judgment was not complete apart from the fact that in absence of any sentence being awarded, the petitioners cannot approach the appellate forum. It was also submitted that since the concerned Presiding Officer has been transferred after pronouncement of judgment, his successor-in-office cannot award the sentences on the said judgment after hearing the accused-convicts on question of sentence. 8. Section 353 of the Cr.P.C. provides that the judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. 8. Section 353 of the Cr.P.C. provides that the judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. According to the proviso to Section 353 (6) of the Cr.P.C. where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. Further Section 353 (7) of the Cr.P.C. provides that no judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. 9. On the backdrop of aforesaid mandates of procedural law, there was no deviation in the facts of the learned trial Court in pronouncing the judgment. The copies of the order-sheet are placed also on behalf of the petitioners. It is seen that in order dated 02.07.2018 the learned trial Court considered the applications filed on behalf of the petitioners under Section 311, Cr.P.C. and Section 315, Cr.P.C. and rejected the same. Thereafter, it was mentioned that one witness was re-examined as per direction of this Court and was discharged. Then the learned trial Court posted the matter for judgment to 03,.07.2018 directing the accused persons to remain physically present on the date fixed. It was also mentioned in the said order that the accused persons may file written notes, if they so like, in course of the day. Stressing on this, it was submitted on behalf of the petitioners that no reasonable opportunity was given to the defence to place their case and the pronounce of judgment was posted to the next day and it was pronounced during the first hour of the day without waiting for the attendance of the accused persons. 10. Stressing on this, it was submitted on behalf of the petitioners that no reasonable opportunity was given to the defence to place their case and the pronounce of judgment was posted to the next day and it was pronounced during the first hour of the day without waiting for the attendance of the accused persons. 10. The contentions as above do not appear reasonable since it is found out that the date was fixed for judgment and the accused persons were directed to remain present. The judgment was pronounced hurriedly during the first hour of the day without waiting for the attendance of the accused persons is absolutely unacceptable since it is not expected that Court shall wait till the accused persons arrive. 11. Even conceding for the sake of argument that there were certain irregularities committed by the learned Trial Court in concluding the trial, still the fact remains that rightly or wrongful judgment was pronounced. The absent accused persons namely, the present petitioners instead of appearing before the learned trial Court for hearing on question of sentence have approached this Court under Section 482, Cr.P.C. It is obvious that unless the accused persons appeared before the learned trial court, no sentence could have been awarded. Hence, the plea that in absence of the sentence being awarded, the accused persons cannot prefer appeal, has no ground to stand. The submissions made on behalf of the petitioners that the successor-in-office cannot award the sentence on the judgment pronounced by his predecessor is not sustainable in law. As per the settled position of law, a judgment written and signed by the predecessor, cannot be pronounced by his successor but once the judgment has already been pronounced according to law, the awarding of sentence can only be made after hearing the accused-convict and that can very well be performed by the successors in office. 12. In the facts and circumstances as narrated above, while the petitioners have an alternative efficacious remedy to prefer appeal against the judgment of the trial court, wherein the grievances can well be taken care of, the present application under Section 482, Cr.P.C. is not maintainable in law. 12. In the facts and circumstances as narrated above, while the petitioners have an alternative efficacious remedy to prefer appeal against the judgment of the trial court, wherein the grievances can well be taken care of, the present application under Section 482, Cr.P.C. is not maintainable in law. This view of mine is fortified by a judgment of the Hon’ble Apex Court reported in (1996) 6 SCC 146 (Arun Shukla versus State of U.P. and others) as submitted and relied upon by the learned Counsel for the State, Vigilance. The facts and the circumstances of the case before the Hon’ble Apex Court were absolutely similar to the present circumstances, wherein setting aside an order of the High Court passed under Section 482 of the Cr. P.C., it was observed by their Lordships of the Hon’ble Apex Court in the aforesaid judgment as follows : “It appears that unfortunately the High Court by exercising its inherent jurisdiction under Section 482 of the Criminal Procedure Code (for short “the Code”) has prevented the flow of justice on the alleged contention of the convicted accused that it was polluted by the so-called misconduct of the judicial officer. It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expression “abuse of the process to law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. In the present case, the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence. The High Court has intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. 13. Learned Counsel for the petitioners citing some case laws, submitted that a finally delivered judgment can be set aside in exercise of power under Section 482, Cr.P.C. in order to secure the ends of justice and to prevent the abuse of process of Court. Learned Counsel for the different petitioners relied on the decisions reported in AIR 1977 S.C. 1489 (State of Karnataka vrs. L. Muniswamy and Ors), AIR 1987 Rajasthan 83 (Full Bench) (Habu vrs .State of Rajasthan), (2011) 14 SCC 813 (Vishnu Agarwal vrs. State of Uttar Pradesh and another), in judgment of the Hon’ble Apex Court obtained from SCC online in the matter of State of Punjab vrs. Davinder Pal Singh Bhullar and Ors, in Criminal Appeal Nos.753-755 of 2009. I have carefully gone through the citations as relied upon. With due respect, it may be mentioned that the facts and the circumstances apart from the positions of law as decided in the cited cases are absolutely different from those in the case at hand. The first case of State of Karnataka related to a quashing of a charge. The Full Bench decision of Rajasthan High Court related to the interpretation of Section 362 of the Cr.P.C. with the observation that the High Court can recall its judgment in exercise of powers under Section 482 of the Cr.P.C. in case the opportunity of hearing is not given to the accused and the bars under Section 362, Cr.P.C. would not be applicable. This related to disposal of one revision application by the High Court in absence of the accused petitioner which was held can be recalled in exercise of power under Section 482 of the Cr.P.C. Similar was the situation in the case of Vishnu Agarwal as has been relied upon, so also in the case of State of Punjab vrs. Bhullar. This related to disposal of one revision application by the High Court in absence of the accused petitioner which was held can be recalled in exercise of power under Section 482 of the Cr.P.C. Similar was the situation in the case of Vishnu Agarwal as has been relied upon, so also in the case of State of Punjab vrs. Bhullar. To put in brief, in all the cases as relied upon the Hon’ble Apex Court as well as the Hon’ble High Court of Rajasthan held that when an order or judgment has been pronounced by the High Court in violation of the principles of natural justice, it can be recalled in exercise of the powers under Section 482, Cr.P.C. and the bars provided under Section 362 of the Cr.P.C. would not be applicable. In all these case, there was no alternative statutory forum available to the aggrieved persons for redressal of their grievances. But as stated earlier, in the case at hand there is an alternate forum by way of appeal available for the accused persons to raise their grievances. As quoted earlier in the case of Arun Sankar Sukla (supra), it has been categorically held that the inherent power of the High Court is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provisions of the Code. It was also held by the Hon’ble Apex Court in another decision reported in AIR 1993 S.C. 892 (The Janata Dal vrs. H.S. Chawdhary) that – “the provision under Section 482, Cr.P.C. closely resembles Section 151 of the Code of Civil Procedure, 1908, (hereinafter called the C.P.C.), and, therefore, the restrictions which are there to use inherent powers under Section 151, Cr.P.C. are applicable in exercise of powers under Section 482,Cr.P.C. and one such restriction is that there exists no other provision of law by which the party would have sought relief. 14. In view of the aforesaid positions of law, I am of the opinion that the applications of the petitioners in the present forum are not maintainable. Accordingly, all the aforesaid applications stand rejected being not maintainable in law. 15. However, the petitioners are given liberty to appear before the learned trial Court on or before 4th August, 2018 so as to be heard on the question of sentence. Accordingly, all the aforesaid applications stand rejected being not maintainable in law. 15. However, the petitioners are given liberty to appear before the learned trial Court on or before 4th August, 2018 so as to be heard on the question of sentence. On their such appearance by the stipulated period, the learned trial Court shall proceed according to law. Till that date, the N.B.W. (A) issued against the petitioners hall not be executed. Applications rejected.