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2019 DIGILAW 238 (ORI)

Rabindra Kumar Mallick v. State Of Orissa (VIG)

2019-03-26

A.K.MISHRA

body2019
JUDGMENT : A.K. Mishra, J. The order dated 30.09.2015 in T.R. No. 19 of 2013 arising out of V.G.R. No. 40 of 2008 passed by learned Special Judge (Vigilance), Balasore, refusing to discharge the petitioners under Section 239 Cr.P.C. is assailed in both the above cases, filed under Section 482 Cr.P.C. by the petitioners. 2. The essential facts presented are as follows:- The selection process for filling up of 1802 posts for engagement of Sikhya Sahayaks in the district of Bhadrak was undertaken as per the resolution No. 11676/SME dated 31.05.2006 of Government of Orissa in Department of School and Mass Education. The District Project Co-coordinator, Bhadrak was the convenor of the selection committee consisting of seven officers and the Collector of the district was the Chairman of the selection committee. 2-a. Petitioner-Debendra Nath Behera was the District Project Co-ordinator. Petitioner-Rabindra Kumar Mallick was the Junior Clerk. A merit list was to be prepared as per the eligibility criteria fixed. The final list for engagement of Sikhya Sahayaks was published on 29.10.2007. 2-b. On receipt of the allegation about manipulation of record to allow ineligible candidates for appointment, an F.I.R. was lodged by the DSP, Vigilance, Bhadrak Unit, Bhadrak on 30.09.2008.It was registered as Balasore, Vigilance P.S. Case No. 40 of 2008. 2-c. It is alleged in the F.I.R. that in respect of one Kiran Kumar Mahalick, his matriculation mark had been enhanced to 700 as against 343 and overall average mark was thereby enhanced to 46.02%. The said candidate did not have valid Physically Handicapped certificate, but was selected under that category. 2-d. In respect of one Narayan Chandra Panigrahi, another candidate, the practical mark was manipulated to show 224 as against 124 and total mark to be 522 as against 422 and the application form had been replaced to show higher mark and change of address. 2-e. In respect of one Anjali Panigrahi, a forged mark sheet was accepted and by enhancing 50 marks from 477 to 527, the average mark was enhanced to 46.24% as against 43.86%. Similarly the mark of one Kumudini Das had been enhanced to 43.83% as against 42.69%, her Physically Handicapped certificate was found not valid. 2-f. In the F.I.R. it is specifically alleged that both the petitioners along with the candidates hatched a criminal conspiracy to manipulate record and forged mark sheet. Similarly the mark of one Kumudini Das had been enhanced to 43.83% as against 42.69%, her Physically Handicapped certificate was found not valid. 2-f. In the F.I.R. it is specifically alleged that both the petitioners along with the candidates hatched a criminal conspiracy to manipulate record and forged mark sheet. Both the petitioners had shown official favour to get the ineligible candidates appointed as Sikhya Sahayaks and thereby committed offence under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and under Sections 467/477-A/120-B of the Indian Penal Code. 3. The investigation was ensued, Police Report No. 52 dated 14.12.2012 was received against thee accused persons, namely, Rabindra Kumar Mallick, Narayan Chandra Panigrahi and Smt. Anjali Panigrahi. The cognizance order dated 30.04.2013 reveals that no sanction was accorded by the competent authority in respect of Debendra Nath Behera, but court took cognizance under Sections 468/477-A/120-B of the Indian Penal Code and issued process against him. As against Rabindra Kumar Mallick, no sanction was felt required as he had retired by then. The learned Special Judge took cognizance under Sections 468/477-A/120-B of the I.P.C. and proceeded against thee accused persons, who were charge sheeted. Accused persons appeared and faced the proceeding against them. 4. The impugned order dated 30.09.2015 reveals that the present petitioners filed a petition on 18.08.2015 to discharge them under Section 239 Cr.P.C. The learned Special Judge(Vigilance), Balasore considered the materials including documents filed with Police Report and held that even though sanction under Section 19 of the Prevention of Corruption Act was not accorded in respect of accused-Debendra Nath Behera, he lacked power to re-visit the cognizance order and the said order having not been challenged in the higher forum, cannot be agitated at the time of consideration of charge under Section 239 Cr.P.C. He found prima facie case for the offence under Sections 468/477-A/120-B of the Indian Penal Code and held that accused present petitioners were not entitled to any protection under Section 197 Cr.P.C. 5. The learned Special Judge has relied upon the decisions reported in the case of Prakash Singh Badal Vs. State of Punjab, (2007) AIR SC 1274, State of Punjab Vs. Labh Singh, (2015) 60 OCR 398 (SC) and Saroj Kumar Sahoo Vrs. Republic of India, 2015 60 OrissaLR 181. 6. Mr. The learned Special Judge has relied upon the decisions reported in the case of Prakash Singh Badal Vs. State of Punjab, (2007) AIR SC 1274, State of Punjab Vs. Labh Singh, (2015) 60 OCR 398 (SC) and Saroj Kumar Sahoo Vrs. Republic of India, 2015 60 OrissaLR 181. 6. Mr. Debi Prasad Dhal, learned senior counsel vehemently urged that both the petitioners are protected under Section 197 Cr.P.C. Once the competent authority refused to accord sanction in respect of Debendra Nath Behera, it can be said that sanction under Section 197 Cr.P.C. was also refused. In view of such refusal, taking of cognizance in respect of accused Debendra Nath Behera is illegal. In respect petitioner Rabindra Kumar Mallick it is urged by Mr. Dhal, that he was working under Debendra Nath Behera and refusal of the competent authority not to prosecute the higher authority can be said to have an effect of refusal of sanction in respect of petitioner Rabindra Kumar Mallick. Accordingly, both the petitioners for want of sanction could not have been proceeded with for offence under Sections 120-B/468 & 477-A of the Indian Penal Code. Refusal to discharge them is not sustainable in the eye of law as the question of sanction can be raised at any stage of the proceeding. 6-a. Mr. Dhal, relied upon the decisions in the case of Tarini Charan Sahu v. State of Odisha, Vigilance,2018 71 OCR 276 and State of Punjab v. Labh Singh, (2015) 60 OCR 398 (SC). 6-b. Per contra, Mr. S.C.Pani, learned Special Counsel, Vigilance relied upon a decision reported in, Inspector of Police and another v. Battenpatla Venkata Ratnam and another, (2015) 61 OCR 350 (SC) and submitted that the nature of offence concerning falsification of record to enhance mark of ineligible candidates and forgery of document by hatching a criminal conspiracy cannot be said to have been committed while acting or purporting to act in the discharge of official duties. Because of the nature of allegation, protection under Section 197 Cr.P.C. is not available. It is further submitted that the cognizance order dated 30.04.2013 having not been challenged by the petitioners, the learned Special Judge was within his jurisdiction to consider material and documents sent under Section 173 Cr.P.C. to find prima facie case. The learned Special Judge was justified, as revealed from the impugned order, not to discharge the petitioners. 7. It is further submitted that the cognizance order dated 30.04.2013 having not been challenged by the petitioners, the learned Special Judge was within his jurisdiction to consider material and documents sent under Section 173 Cr.P.C. to find prima facie case. The learned Special Judge was justified, as revealed from the impugned order, not to discharge the petitioners. 7. Thus, the question arises as to whether for the above act as found prima facie from the documents sent under Section 173 Cr.P.C., the protection under Section 197 Cr.P.C. can be extended? 8. In the case at hand copy of the F.I.R. so also the impugned order of the learned Special Judge along with the cognizance order are annexed. The Police Report submitted under Section 173 Cr.P.C. is not annexed. The allegation was falsification of marks, use of forged certificate and thereby allowed the ineligible candidates to be enlisted in the merit list. It is also alleged that both the candidates against whom charge sheet were submitted, namely, Narayan Chandra Panigrahi and Smt. Anjali Panigrahi were appointed due to criminal conspiracy with the present two petitioners out of whom one was the member of the Selection Committee as District Project Coordinator and another was entrusted with the tabulation and scrutiny of records. Learned Special Judge has found sufficient materials against the petitioners. 9. In Prakash Sing Badal case (supra) with regard to Section 197 Cr.P.C. it is stated that this protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. 9-a. Their Lordships have also held as follows:- "45. With reference to the absence of allegations under Sections 8 and 9 of the Prevention of Corruption Act, 1988, it is submitted whether the charge-sheet has reference to any particular material referred to in it and the relevance of it is to be considered at the time when the charge is framed. With reference to the absence of allegations under Sections 8 and 9 of the Prevention of Corruption Act, 1988, it is submitted whether the charge-sheet has reference to any particular material referred to in it and the relevance of it is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the court is primarily concerned with the question as to whether charge is to be framed in respect of any offence and whether prima facie there appears existence of any material and not the sufficiency of the materials. Therefore, the appellants' stand that the charge sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by the learned counsel for the respondent State." xxx xxx xxx "50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 10. The aforesaid Prakash Singh Badal case (supra) has been considered in the case of Battenapatla Venkata Ratnam case (supra). Their Lordships also referred to the decision in Rajib Ranjan and others v. R. Vijaykumar, (2015) 1 SCC 513 , wherein it is stated that "even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duty and, therefore, provisions of Section 197 of the Code will not be attracted." Finally it is held that "The alleged indulgence of the officers in cheating fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately the High Court missed these crucial aspects. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only." 10-a. The case of Tarini Charan Sahu (supra) cited by learned counsel for the petitioners is not applicable here because in that case cognizance was challenged and learned court found no mensria as Sub-Registrar had intimated under valuation as per law subsequently. The ratio of Labh Singh case (supra) is not disputed here. The presumptive immunity in favour of the petitioner Rabindra Kumar Mallick, on the paralance that no sanction was accorded in favour of Debendra Nath Behera, cannot be extended for the reasons that competent authority considered the question of sanction qua person. Such extension of immunity would amount to transgression of the jurisdiction of sanctioning authority. 11. Learned Special Judge (Vigilance) found prima facie materials regarding criminal conspiracy, forgery and falsification of documents by all the four accused persons including present two petitioners. He did not consider the charge against the present petitioners to be groundless. 11-a. The impugned order does not suffer from any illegality. No interference is called for under Section 482 Cr.P.C. 12. Any observation in this order on merit will not be considered for any purpose by the trial court during trial. 13. The CRLMCs are dismissed.