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2018 DIGILAW 832 (ORI)

Jogendra Sekhar Sahu v. State Of Odisha

2018-12-06

S.PUJAHARI

body2018
JUDGMENT S.Pujahari, J. - Heard the learned counsel for the petitioner and the learned counsel for the State. 2. This application under section 482 of Cr.P.C., 1973 has been filed by the petitioner with a prayer to quash the order dated 22.12.2017 passed by the learned Special Judge (Vigilance), Sundargarh in Sundargarh Vigilance G.R. Case No. 10 of 2017 taking cognizance for alleged commission of offences punishable under Sections 13(2) read with Section 13 (1) (d)/7 of the P.C. Act, 1988. 3. Facts relevant for disposal of this application are as follows: One Banamali Kalo presented a written report addressed to the S.P., Vigilance, Sambalpur through the Dy. S.P., Vigilance, Sambalpur requesting to register a criminal case against one Harekrushna Sahu, Senior Clerk (Nazir Section), Tahasil Office, Gurundia for demanding bribe of Rs. 1,000/- from him in order to process for issuance of Land Holding Certificate and to give Land Holding Certificate in favour of his elder father. On receipt of the aforesaid complaint and as per the direction of the S.P., Vigilance, Sambalpur, a trap was laid against said Harekrushna Sahu on 08.02.2017 by the Rourkela Unit of the Vigilance Police. It reveals from the report that the decoy proceeded to the office concerned with the tainted money of Rs. 1,000/- smeared with phenolphthalein powder being accompanied by one Soumitra Pattnayak, Jr. Clerk of Regional Industries Centre, Rourkela who was set as accompanying witness to give signal soon after handing over the said money. So also, one Bhagirathi Patel, Agriculture Overseer under the Office of D.A.O., Panposh was instructed to remain with the Trap Party members and to act as an independent witness. It appears that at about 2.45 PM, the raiding party arrived near the Office of the Tahasildar, Gurundia and five minutes after their arrival in the Office, one accompanying witness intimated that the accused persons were not there and had left for lunch and thereafter, the raiding party waited them till their arrival and at about 2.45 PM, the accompanying witness came out and gave the signal as directed and immediately thereafter, the Vigilance Police with other independent witnesses proceeded to the spot and gave their identification to the accused Harekrushna Sahu and indicated that they stated to have received the bribe of Rs. 1,000/- which he had demanded for issuance of Land Holding Certificate to the complainant. He admitted to have received Rs. 1,000/- which he had demanded for issuance of Land Holding Certificate to the complainant. He admitted to have received Rs. 1,000/-from the complainant, but retained Rs. 800/- in his handbag and handed over Rs. 200/- to Sri Jogendra Sekhar Sahu, Sr. Clerk i.e. the present petitioner. Thereafter, the same was confirmed on his hand wash and the tainted money of Rs. 800/- was received from him. But, so far as the present petitioner is concerned, it appears that the aforesaid amount received by the petitioner stated to have been passed on by him to the peon i.e. Gayadhar Nayak who was sitting by the side of the present petitioner. 4. As it appears, the petitioner also stated to have admitted before Vigilance Police to have, received Rs. 200/- from said Harekrushna Sahu which he had kept in his table, but thereafter passed on the same to said Gayadhar Nayak seeing the arrival of Vigilance Official and but he denied that the same was given to him by the petitioner as his share. Said Gayadhar Nayak also produced the aforesaid amount of Rs. 200. The implication of the petitioner in the aforesaid case was also made as a co-accused for receipt of such share and on filing of the charge sheet, cognizance was taken against him as well as said Harekrushna Sahu for the aforesaid offences. But, said Gayadhar Nayak from whom the aforesaid amount was received has been shown as witness. 5. It is the case of the petitioner that the amount was not recovered from him even if the confession of the petitioner is taken to its entirety before the Vigilance Police as because such money has been passed through him, it cannot be said that the petitioner was an accused in the aforesaid case. The material as produced would go to show that the petitioner had no role to play in the demand or acceptance of the bribe or had anything to do for issuance of the Land Holding Certificate and without his sanction such Certificate could not have been issued. As such, it is submitted that the impugned order of cognizance against the petitioner is liable to be quashed. 6. However, Mr. As such, it is submitted that the impugned order of cognizance against the petitioner is liable to be quashed. 6. However, Mr. P.K. Pani, learned Standing Counsel appearing for the Vigilance Department submits that from the materials on record, admittedly, the money have been passed through the present petitioner and the principal accused has stated that the petitioner was given the same as his share. No doubt, the money was recovered from the Peon which the petitioner stated to have handed over on seeing the Vigilance Police. Hence, the Court at this stage of cognizance being required to take a prima facie view looking into the materials on record and not to appreciate the same before proceeding, the impugned order cannot be found fault with. Therefore, this application filed by the petitioner is liable to be dismissed. In this regard he has placed reliance on the decision rendered by the Apex Court in the case of State of M.P. v. Harishankar Bhagwan Pd. Tripathi, reported in (2010) 47 OCR (SC) 424 wherein at Paragraph 12, it has been categorically held that when money was recovered from a co-accused, it appears therefore that there was an understanding between him and the principal accused for the offence. 7. Before addressing the contention of the parties, it would be apposite to mention here that the tainted money has only been passed through the present petitioner and was recovered from one Gayadhar Nayak. However, said Gayadhar Nayak has not been made as an accused, but has been indicated as a witness. No material is produced indicating the fact that the petitioner had played any role or facilitate in commission of the offence by the principal accused Harekrushna Sahu. Only because said Harekrushna Sahu had given part of the amount of tainted money which the petitioner passed on to Gayadhar Nayak, he has been proceeded.with. In the decision cited supra, it appears that the tainted money was recovered from the accused concerned and when he could not account for the same in the trial, the Apex Court have rendered the finding that he was also guilty of the offence. However, in this case the tainted money was not recovered from the possession of the petitioner. The allegation was on receipt of Rs. 1,000/-, Rs. 200/- was passed on to the present petitioner which was recovered. However, in this case the tainted money was not recovered from the possession of the petitioner. The allegation was on receipt of Rs. 1,000/-, Rs. 200/- was passed on to the present petitioner which was recovered. In such premises, said Gayadhar Nayak is made a witness and not an accused, but the present petitioner has been made as an accused in the aforesaid case. 8. Be that as it may, since the money was not recovered from the petitioner and it was simply the principal accused gave Rs. 200/- of the tainted money which was also handed over to one Gayadhar Nayak, one of the witnesses in this case, this Court is of the view that prima facie there was no case against the petitioner and as such, the proceeding against the petitioner under Section 13(2) read with Section 13(1)(d) of the P.C. Act is misconceived. 9. Accordingly, this CRLMC is allowed. Consequently, the proceeding in the aforesaid case against the present petitioner is quashed. 10. Issue urgent certified copy as per rules.