Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 739 (ORI)

Agani Charan Behera v. State of Orissa

2018-08-16

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - The petitioner Agani Charan Behera has filed this application under Section 482 of the Code of Criminal Procedure, 1973 for quashing the charge sheet and the entire criminal proceeding against the petitioner in V.G.R. Case No.39 of 2001 arising out of Cuttack Vigilance P.S. Case No.39 of 2001 pending on the file of learned Chief Judicial Magistrate, Cuttack (hereafter ‘the trial Court’). In the said case, the learned trial Judge as per order dated 07.09.2013 framed charges under Sections 406/120- B of the Indian Penal Code against the petitioner and co-accused persons Debadatta Das and Saroj Kumar Mishra. 2. On 15.10.2001 Sri P.K. Routray, Inspector of Police, Vigilance, Cuttack Division, Cuttack presented the first information report before the Superintendent of Police, Vigilance, Cuttack Division, Cuttack stating therein that he received reliable information on 12.10.2001 at 3.00 p.m. that the rice allotted under ‘Food for work programme’ to Saline Embankment Division, Cuttack stored at Jagatpur Godown, without being given to the labourers, are being disposed of at Malgodown, Cuttack in truck no.OSC 6731. The informant along with other police officials proceeded to Malgodown to verify the information. On reaching at Malgodown, they found truck no. OSC 6731 had been parked near the godown of M/s. Patra Traders being loaded with rice bags. The driver and helper of the truck so also the labourers who were unloading the rice bags from the truck fled away leaving the truck. On search, 200 bags of rice weighing 50 Kg. each were seized along with the vehicle. The vehicle was given in the zima of one B.K. Mohanty in presence of witnesses. It is the further case of the prosecution as per the F.I.R. that during verification, Sri Debendra Nayak, driver of the truck no. OSC 6731 was traced, who disclosed that the rice belonged to co-accused Saroj Kumar Mishra of Rajnagar of district Kendrapada who took delivery of the said rice from the store situated at Jagatpur on 12.10.2001 and as per his direction, he brought the rice in his truck on hire from Jagatpur to Malgodown for disposal. Co-accused Saroj Kumar Mishra was traced who disclosed that he had taken ten numbers of creek works at Kanak Nagar under Saline Embankment Division, Cuttack. Co-accused Saroj Kumar Mishra was traced who disclosed that he had taken ten numbers of creek works at Kanak Nagar under Saline Embankment Division, Cuttack. He completed the works in the month of May 2001 but due to non-availability of rice in the store, he could not lift the stock. It is the further case of the prosecution as per the F.I.R. that on verification of the records, it was found that co-accused Saroj Kumar Mishra was awarded to execute different area works vide F2 Agreement No.56, 57, 58, 59, 60, 61, 63, 65, 142 and 143 under ‘Food for work programme’ for Rs.4,74,970/- by the Executive Engineer, Saline Embankment Division, Cuttack. The works were to be executed under the direct supervision of the petitioner who was the J.E., Talchua Irrigation Section. The records further disclosed that 1400 MT of rice under ‘Food for work programme’ were received on 30.6.2001 by the Saline Embankment Division, Cuttack and the those rice bags were stored in three godowns at Jagatpur, Sikharpur and Rajnagar for distribution purpose. Though the works were completed during the month of May, the departmental officers without any reason kept rice unsupplied and undistributed to the labourers for whom alone it was meant for, for four long months and ultimately when it was decided to supply the rice, instead of supplying rice from Rajanagar store, the rice was supplied from Jagatpur store with an ulterior motive. It is the further case of the prosecution as per the F.I.R. that on 12.10.2001 the co-accused contractor Saroj Kumar Mishra took delivery of 216 bags of rice from co-accused Debadatta Das, J.E. in charge of store at Jagatpur godown on the strength of authorisation slip issued by the petitioner of Talchua Irrigation Section. Both the contractor and the co-accused J.E. Debadatta Das could not offer any valid explanation about the transportation of rice from Jagatpur store to Malgodown, Cuttack and about shortage of sixteen bags of rice. Co-accused J.E. Debadatta Das also kept stock and issue register pending without making up-to-date entries with an ulterior motive. Both the contractor and the co-accused J.E. Debadatta Das could not offer any valid explanation about the transportation of rice from Jagatpur store to Malgodown, Cuttack and about shortage of sixteen bags of rice. Co-accused J.E. Debadatta Das also kept stock and issue register pending without making up-to-date entries with an ulterior motive. It is further stated in the F.I.R. that the Government officials by making conspiracy with contractor without distributing the rice, supplied by the Government under ‘Food for work programme’ at Rajnagar, diverted the same to Malgodown, Cuttack for disposal for their pecuniary gain as a result the very purpose of the Government was defeated causing loss to the State Exchequer for which the petitioner who was J.E., Talchua, co-accused Debadatta Das, J.E., Store, both of Saline Embankment Division, Cuttack and co-accused Saroj Kumar Mishra, contractor are liable under Sections 406, 409 read with Section 120-B of the Indian Penal Code and 7 of Essential Commodities Act. 3. This CRLMC petition was filed on 03.12.2012 annexing the F.I.R., copy of letter dated 01.06.2001 issued by the Executive Engineer, Saline Embankment Division, Cuttack to the District Manager, FCI, Cuttack and copies of hand receipts and charge sheet dated 27.09.2002. This Court vide order dated 05.11.2013 in Misc. Case No.28 of 2012 granted interim stay of further proceeding of the case before the trial Judge. During the midst of hearing, a Misc. Case was filed by the learned counsel for the petitioner for amendment of the petition annexing the order dated 27.01.2004 by virtue of which cognizance of offences under Sections 406/120-B of the Indian Penal Code was taken on receipt of charge sheet, the order dated 20.05.2011 by virtue of which the discharge petition filed by the petitioner under Section 239 of Cr.P.C. was rejected and the order dated 07.09.2013 by virtue of which charges were framed by the learned trial Judge. The Misc. Case was allowed and a consolidated petition was filed. 4. Mr. Aditya Kumar Mohapatra, learned counsel for the petitioner challenging the rejection of discharge petition, order of framing charge and the continuance of the criminal proceeding against the petitioner contended that the prosecution case in its entirety does not make out any offence against the petitioner. It is argued that the role of the petitioner as a Junior Engineer was confined to supervision of work and measurement of work executed by the contractor. It is argued that the role of the petitioner as a Junior Engineer was confined to supervision of work and measurement of work executed by the contractor. After completion of work, the petitioner had measured the work which had been countersigned by the Asst. Engineer and it was recommended for payment. It is further contended that when the work was executed, at that relevant point of time no rice grains were available at any of the stores of the department and as per the standard practice of the department, the petitioner issued a hand receipt in favour of the contractor asking him to lift the stock as soon as it is made available in the nearby Govt. Stores. It is argued that there was no entrustment of rice stocks with the petitioner for distribution to the labourers and no breach of trust as alleged has been committed by the petitioner. There is no element of criminal conspiracy with the co-accused persons. It is contended that when the J.E., Stores, Jagatpur being the custodian of Govt. godown released 216 bags of rice on 12.10.2001 in favour of the contractor and there is no material that the petitioner had knowledge about the lifting of the rice stock from Jagatpur godown, it was not proper on the part of the investigating officer to submit charge sheet against the petitioner. It is submitted that after completion of work and its measurement, the measurement book was countersigned by the S.D.O. and authorisation was issued in favour of the contractor for taking the rice and for final payment of his bill and the contractor had not received the final payment of the work as he had not submitted the distribution receipts of the rice under the ‘Food for work programme’. Mr. Prasanna Ku. Pani, learned Addl. Standing Counsel for the Vigilance Department on the other hand submitted that the work was completed on 30.05.2001 and even though at that point of time the stock of rice was not available in the godowns but it was made available on 30.06.2001 and stored in three godowns i.e. Jagatpur, Sikharpur and Rajnagar and therefore, there was no justification for allowing the contractor to take delivery of rice of 216 bags at a belated stage on 12.10.2001. It is submitted that as per Clause 4 of Orissa Public Works Department/Electricity Department Contractors Labour Regulations, wages due to every worker has to be paid to him directly and as per Clause 5, no wages shall exceed one month and wages of every workman employed on the contract shall be paid before the expiry of ten days, after the last day of the wages period in respect of which wages are payable. It is argued that the last date as per the aforesaid regulation was expiring on 10.07.2001 for labour payment and during that period the required rice was available in all godowns including Rajnagar, however it was not lifted at that point of time but lifted only on 12.10.2001 which is more than three months after the availability of the stock of rice under ‘Food for work programme’ in the godowns. It is contended that deliberately the rice was not lifted from Rajnagar godown though the works were done at Kanaknagar under Rajnagar Block. It is further contended that the National Food for Work Programme (NFFWP) guidelines issued by the Govt. of India, Ministry of Rural Development in Chapter-II indicates that the foodgrains should be given as a part of wages under NFFWP to the rural poor at the rate of 5 kgs. per manday. The State Govt. will take into account the cost of foodgrains paid as part of wages, at a uniform BPL rate. In Chapter-IV of NFFWP which deals with allocation and release of resources, Clause 4.14.1 states that the full benefit of wages to be paid should reach the workers and cost of works should not involve any commission charges payable to such contractors, middleman or intermediate agency. It is argued that there is no rule, regulation or agreement which empowers the J.E. to release the rice meant for the purpose of ‘Food for work programme’ in favour of the contractor and the contractor after receiving the said rice to sale in the open market. It is contended that it was not proper to issue hand receipt in favour of the contractor which was misutilised in lifting rice stock from Jagatpur godown and taking it to Malgodown for sale. It is contended that it was not proper to issue hand receipt in favour of the contractor which was misutilised in lifting rice stock from Jagatpur godown and taking it to Malgodown for sale. It is contended that in view of the difference of costs of rice issued under BPL rate and market rate, there is possibility that unscrupulous persons with vested interest might divert grain to sale at higher rate. It is further contended that there is no illegality in the orders of rejection of the discharge petition and framing of charges and therefore, this Court should not interfere with the same invoking its inherent power under Section 482 of Cr.P.C. 5. The trial of the offences under which charges have been framed is to be dealt with in accordance Chapter-XIX of Cr.P.C. Section 239 Cr.P.C. deals with the discharge of an accused and Section 240 Cr.P.C. deals with framing of charge by the trial Court in cases which are instituted on a police report. When the Court considers the charge against the accused to be groundless which means without any basis or foundation, the accused can be discharged under Section 239 of Cr.P.C. The object of discharge is to save the accused from unnecessary and prolonged harassment and therefore, the mechanical approach at the stage of consideration of discharge petition by the trial Judge is impermissible as the next step i.e. the framing of charges substantially affects the person’s liberty. For exercising the power of discharge under Section 239 of Cr.P.C., it is not necessary even for the accused to file a petition for discharge. Bereft of the fact whether discharge petition is filed or not, the learned trial Judge is not absolved of his duty at that stage to decide whether the charge against the accused to be groundless. For arriving at such a conclusion, the Court has to consider the police report, the documents sent with it under Section 173 of Cr.P.C. and also if necessary, by examining the accused. After giving opportunity of hearing to the prosecution as well as to the accused, if the Court decides to discharge the accused then reasons are to be recorded. For arriving at such a conclusion, the Court has to consider the police report, the documents sent with it under Section 173 of Cr.P.C. and also if necessary, by examining the accused. After giving opportunity of hearing to the prosecution as well as to the accused, if the Court decides to discharge the accused then reasons are to be recorded. However, if the Court is of the opinion that there is ground for presuming that the accused has committed an offence which can be tried under Chapter-XIX then under Section 240 of Cr.P.C., the Court shall frame charge in writing against the accused. The truth, veracity and effect of the materials proposed to be adduced by the prosecution during trial are not to be meticulously adjudged. The likelihood of the accused in succeeding to establish his probable defence cannot be a ground for his discharge. At the stage of framing charge, it is to be seen whether a prima facie case has been made out. The Court would not delve deep into the matter for the purpose of appreciation of evidence. 6. The materials available on record indicate that as per tender and the measurement book, the work i.e. C.D.R. to Nallah on Kanakanagar commenced on 21.05.2001 and it was completed on 30.05.2001. The record reveals that the stock position of paddy (rice) in the godown of Rajnagar Saline Sub- Division Office under ‘Food for work programme’ from 01.05.2001 to 31.05.2001 was nil and no paddy was lifted during the month of May 2001. The first information report and other documents reveal that 1400 MT of rice under ‘Food for work programme’ were received on 30.06.2001 by the Saline Embankment Division, Cuttack and the said rice bags were stored in three godowns i.e. Jagatpur, Sikharpur and Rajnagar. Therefore, when the rice stock was not available in any of the three godowns when the work in question was under progress or completed, the question of distribution of rice to the labourers does not arise. After the rice was made available a month after the conclusion of work and its measurement, it seems no immediate steps were taken to lift the rice from the godown and distribute it to the labourers. After the rice was made available a month after the conclusion of work and its measurement, it seems no immediate steps were taken to lift the rice from the godown and distribute it to the labourers. It is needless to say that the contractor would only be entitled to get the final payment towards the work after submission of distribution receipts of rice under the ‘Food for work programme’ and in the present case the contractor had failed to produce the receipts and therefore, he had not received the final payment. The petitioner seems to have issued hand receipt for lifting of rice stock in favour of the contractor as per prevailing practice but there is nothing on record to show that the petitioner had asked the co-accused Saroj Kumar Mishra to lift rice from Jagatpur godown instead of Rajnagar godown. If the contractor co-accused produced the hand receipt and allowed to lift the rice from Jagatpur godown by the in charge of the godown and after receiving the rice bags, he carries it to Malgodown, Cuttack in a truck, it cannot be presumed that there was any criminal conspiracy of the petitioner with the co-accused persons. The petitioner was not in charge of Jagatpur godown nor was the rice stocked in that godown entrusted to him in any manner. Production of hand receipt issued by the petitioner at Jagatpur godown, entertaining such hand receipt, delivering the rice stock and carrying it to Malgodown in a truck seems to have got no nexus with the petitioner. Those acts have been alleged against the other two co-accused persons but not to the petitioner. Merely because the hand receipt for lifting of rice stock was issued by the petitioner as per prevailing practice in favour of the contractor a few months after it was made available in the godown, cannot be a factor for fixing any criminal liability on the petitioner. 7. In view of the forgoing discussions, I am of the considered opinion that there is no ground for presuming that the petitioner has committed offence of criminal breach of trust. There are no surrounding circumstances or any conduct of the petitioner from which it can be inferred that he was a party to criminal conspiracy and therefore, the order of rejection of the discharge petition filed by the petitioner was neither proper nor justified. There are no surrounding circumstances or any conduct of the petitioner from which it can be inferred that he was a party to criminal conspiracy and therefore, the order of rejection of the discharge petition filed by the petitioner was neither proper nor justified. The learned trial Court has committed illegality in framing charge against the petitioner under Sections 406/120-B of the Indian Penal Code. Therefore, the CRLMC application is allowed. The criminal proceeding in V.G.R. Case No.39 of 2001 in respect of the petitioner stands quashed. Application allowed.