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2019 DIGILAW 559 (ORI)

Kumudini Padhy v. State of Odisha (VIG)

2019-09-04

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The petitioner Smt. Kumudini Padhy who is an octogenarian lady has filed this criminal miscellaneous application under section 482 of the Code of Criminal Procedure challenging the proceeding in G.R. Case No.12 of 2011(V)/T.R. No.15 of 2018 pending in the Court of learned Special Judge (Vigilance), Berhampur in which after taking cognizance of offence under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereafter 1988 Act') and section 109 of the Indian Penal Code, process has been issued against her. The said case arises out of Berhampur Vigilance P.S. Case No.12 of 2011. 2. On 15.03.2011 on the first information report lodged by Sri Rabikanta Suna, Inspector of Police, Vigilance, Paralakhemundi before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur, the case was instituted wherein it is alleged that an enquiry was conducted on receipt of the reliable information relating to the accumulation of disproportionate assets by Sri Akhaya Kumar Padhy, J.E., Irrigation Section, Bhismagiri under Chikiti Irrigation Division, Berhampur. The said co-accused Sri Padhy happens to be the son of the petitioner. Enquiry revealed that Sri Padhy is the only son of Late Banamali Padhy of village Bendalia under Sadar police station, Berhampur in the district of Ganjam. He has only one sister namely Smt. Nilima Padhy who was already married and staying at village Ganj under Gopalpur police station in the district of Ganjam. His father late Banamali Padhy had Ac.09.00 dec. of land, out of which Ac.05.00 dec. was rainfed and the rest was non-rainfed. After completion of his education, Sri Padhy entered into Government service as a Junior Engineer on 23.07.1987 at Upper Kolab Irrigation Project, Kolab Nagar in the district of Koraput. He had worked at Padampur Block, Irrigation Project, Kendugada, Irrigation Project, Baghalati, Irrigation Division, Bhanjanagar, Irrigation Division, Bhawanipatna and at Irrigation Section, Bhismagiri under Chikiti Irrigation Division where he was continuing. He married to one Mamta Padhy, daughter of Duryodhan Padhy on 08.03.1988 and was blessed with three sons namely Darubrahma Padhy, Chinmaya Padhy and Adarsa Padhy. His elder son Darubrama Padhy had completed his Engineering studies in Electronics from Ronald Institute of Technology in the year 2010. His 2nd son Chinmaya Padhy was prosecuting 2nd year Civil Engineering studies at ITER College, Berhampur and his younger son namely Adarsa Padhy was reading +2 Science 2nd year at Nilakhanthanagar Sisu Bidyamandira, Berhampur. His elder son Darubrama Padhy had completed his Engineering studies in Electronics from Ronald Institute of Technology in the year 2010. His 2nd son Chinmaya Padhy was prosecuting 2nd year Civil Engineering studies at ITER College, Berhampur and his younger son namely Adarsa Padhy was reading +2 Science 2nd year at Nilakhanthanagar Sisu Bidyamandira, Berhampur. During house search and on subsequent enquiry, it was found that during his service period from 23.07.1987 to 16.12.2010, Sri Padhy had acquired total immovable assets to the tune of Rs.38,75,930.00 paisa and moveable assets to the tune of Rs.15,00,097.25 paisa and thus the total moveable and immovable assets came to Rs.53,76,027.25 paisa. His assets included gold ornaments, deposits in various Banks, LIC and valuable household articles. It was found on enquiry that during the check period, Sri Padhy had earned salary amounting to Rs.19,13,793.00. Against such income, he had incurred expenditure to the tune of Rs.14,91,661.00 and thus leaving a saving balance of Rs.4,22,132.00. Against such probable saving, Sri Padhy was in possession of assets worth of Rs.53,76,027.25 paisa. Therefore, the disproportionate assets was to the tune of Rs.49,53,895.25 paisa and the percentage of disproportionate assets to his known source of income was 258.85%. It is stated in the first information report that co-accused Sri Padhy being a public servant is liable for criminal misconduct for acquiring and possessing assets disproportionate to his known source of income which is an offence under section 13(2) read with section 13(1)(e) of the 1988 Act. Accordingly, on receipt of such first information report, Berhampur Vigilance P.S. Case No.12 of 2011 was registered under section 13(2) read with section 13(1)(e) of the 1988 Act against Sri Akhaya Kumar Padhy only. 3. During course of investigation, the entire service period of Sri Akhaya Kumar Padhy i.e. 23.07.1987 to 16.12.2010 was taken as check period considering accumulation of valuable movable and immovable assets. Sri Padhy had not submitted any property statement but it was ascertained that permission has been accorded under Rule 21(1) of Odisha Government Servant Conduct Rules, 1959 to purchase plot no.153, Khata no.850 of Mouza Alakapur of 1594 sq. ft. from one Smt. Tumula Nilima of Prem Nagar, 3rd Lane, Berhampur for Rs.2,55,950/- and selling of plot no.780/2938 in Mouza Old Berhampur of area Ac.0.053 dec. to Sri Repak Jagan Mohan of Prem Nagar, 5th Lane, Berhampur for Rs.10,58,000/-. ft. from one Smt. Tumula Nilima of Prem Nagar, 3rd Lane, Berhampur for Rs.2,55,950/- and selling of plot no.780/2938 in Mouza Old Berhampur of area Ac.0.053 dec. to Sri Repak Jagan Mohan of Prem Nagar, 5th Lane, Berhampur for Rs.10,58,000/-. Sri Padhy had filed income-tax returns basing on salary income and income from house and tower rents. During the assessment year 2007-08, he had shown income of Rs.20,114/- and for the assessment year 2008-09, he had shown the income of Rs.16,686/-. No income was shown in the year 2009-10. For the assessment year 2010-11, a sum of Rs.25,914/- was shown as income from house rent and Rs.81,429/- as tower rent. Thus a sum of Rs.1,44,413/- was shown as income from house and tower rent. No income tax return was filed by the wife of the co-accused Sri Padhy. Since no income was shown from agriculture, hence agricultural income was not taken into account by the investigating officer. So far as the income of Sri Padhy is concerned, it was found that during the check period, he had received a net salary and allowances of Rs.19,29,006/-, income from house and other sources i.e. from tower rents as shown in income tax return was Rs.1,44,143/-, income from housing loan availed from SBI, Bhapur Bazar Evening Branch, Berhampur Branch was Rs.6,00,000/-, income from LIC premium was Rs.9,700/-, income from GPF was Rs.4,07,000/-, income from pension of his mother (petitioner) received upto 16.12.2010 was Rs.4,35,065/-, income from selling of plot bearing No.780/2938 in Khata No.365/1362 of area Ac.0.053 under Puruna Berhampur Mouza to one Repaka Jagan Mohan was Rs.10,58,000/-, income from selling a plot of agricultural land under Mouza Haladia Padar, Berhampur to one Rama Krushna Samantaray was Rs.2,10,000/-, income from selling of another plot of agricultural land under Mouza Haladia Padar, Berhampur to one Ankima Bapiraju was Rs.1,66,060/-, income from selling another plot of agricultural land under Mouza Haladia Padar, Berhampur to one Smt. Moninge Krishna Kumari Subudhi was Rs.28,240/-, income from selling another plot of agricultural land under Mouza Haladia Padar, Berhampur to one Sri T. Mohan Rao was Rs.28,240/- and thus the total income of Sri Padhy came to Rs.50,15,454/-. So far as the expenditure of Sri Padhy is concerned, it was found that during the check period, the total expenditure was to the tune of Rs.24,26,283/-. So far as the expenditure of Sri Padhy is concerned, it was found that during the check period, the total expenditure was to the tune of Rs.24,26,283/-. During the check period, it was found that Sri Padhy had acquired immovable assets to the tune of Rs.28,11,548/- and moveable assets to the tune of Rs.16,60,421/-. Thus the total moveable and immovable assets was found to be of Rs.44,71,969/-. After calculating the income, expenditure, probable saving, assets at the beginning of check period and assets at the end of check period, the investigating officer found that the disproportionate assets was to the tune of Rs.18,60,671/-. Sri Padhy could not explain satisfactorily about the disproportionate assets and his wife Smt. Mamita Padhy and mother (petitioner) alleged to have acquired assets on behalf of Sri Padhy by abetting him in the accumulation of disproportionate assets. Accordingly, the investigating officer on completion of investigation held that there are prima facie evidence to show that Sri Padhy and his wife Smt. Mamita Padhy and mother (petitioner) acquired and possessed disproportionate assets to the tune of Rs.18,60,671/- during the service period from 23.07.1987 to 16.12.2010. After obtaining the sanction order of prosecution against Sri Padhy under section 19(1)(b) of the 1988 Act, charge sheet was submitted on 22.11.2017 under section 13(2) read with section 13(1)(e) of 1988 Act and section 109 of the Indian Penal Code against Sri Akhaya Kumar Padhy, his wife Smt. Mamita Padhy and mother (petitioner), on receipt of which the impugned order dated 23.05.2018 was passed. 4. Mr. Manoj Kumar Mishra, learned Senior Advocate appearing for the petitioner challenging the impugned order contended that the petitioner who is the mother of the public servant cannot be prosecuted for the charge of abetment of alleged acquisition of disproportionate assets by the public servant. It is further contended that though F.I.R. was lodged only against the son of the petitioner but while submitting charge sheet, the Vigilance Police added the petitioner as an accused along with her son Akhaya Kumar Padhy and daughter-in-law Mamita Padhy on the ground that she abetted her son in acquiring disproportionate assets. It is further contended that though F.I.R. was lodged only against the son of the petitioner but while submitting charge sheet, the Vigilance Police added the petitioner as an accused along with her son Akhaya Kumar Padhy and daughter-in-law Mamita Padhy on the ground that she abetted her son in acquiring disproportionate assets. It is contended that the husband of the petitioner namely late Banamali Padhy was a Primary School Teacher who died in the year January 1983 and the petitioner was receiving family pension after the death of her husband and the total amount she received towards family pension was Rs.5,04,901/-. The petitioner was having money lending business for three years upto a capital of Rs.40,000/- by obtaining license bearing registration no.2 of 1986, 3 of 1987 and 1 of 1988. During the check period, the petitioner purchased a land in Mouza Haladia Padar, Berhampur for Rs.1,40,250/- but sold a part of that land for an amount of Rs.4,32,540/- and thus the differential amount she earned was Rs.2,92,290/-. Therefore, even if the income from money lending business is not taken into account for the present, the petitioner can still be said to have income from family pension and profit from the selling of land to the tune of Rs.5,04,901.00 paisa (+) Rs.2,92,290.00 paisa = Rs.7,97,191.00 paisa. It is further submitted that during the check period, the petitioner purchased agricultural lands in Mouza Bendalia on 11.07.1991 for Rs.37,100/-, on 19.06.1992 for Rs.5,500/-, on 21.09.1999 for Rs.41,650/-, on 11.09.2001 for Rs.14,800/- and on 07.05.2002 for Rs.34,680/- and thus the total agricultural land purchased was to the tune of Rs.1,33,730/-. Similarly during the check period, the petitioner deposited Rs.1,00,000/- in the Central Cooperative Bank, Berhampur, Rs.50,000/- in the Bank of India, Berhampur, Rs.47,655/- in the Bank of India, Berhampur and further deposited Rs.1,50,000/- in the Head Post Office in the Senior Citizen Savings Scheme Pass Book and thus the total deposit amount in the name of the petitioner in the Bank and Post Office was Rs.3,47,655/-. Therefore, the petitioner had acquired total assets of Rs.1,33,730.00 paisa (+) Rs.3,47,655.00 paisa = Rs.4,81,385.00 paisa. It is submitted that since the petitioner was staying with her only son who is the main accused in the case, her per capita consumer expenses such as food, clothing and fuel etc. Therefore, the petitioner had acquired total assets of Rs.1,33,730.00 paisa (+) Rs.3,47,655.00 paisa = Rs.4,81,385.00 paisa. It is submitted that since the petitioner was staying with her only son who is the main accused in the case, her per capita consumer expenses such as food, clothing and fuel etc. was borne by her son and as such it is not to be excluded from the individual income of the petitioner to decide her net saving but expenditure on such heading is to be considered while considering the expenditure of the main accused. Therefore, the petitioner has acquired assets worth of Rs.4,81,385/- as against her individual income of Rs.7,97,191/- which cannot be said to be illegal under any stretch of imagination and as such submission of charge sheet against the petitioner on the accusation that she abetted the alleged acquisition of disproportionate assets by her son is totally misconceived particularly when there is no iota of evidence in that respect. 5. Mr. Niranjan Maharana, learned Addl. Standing Counsel for the Vigilance Department on the other hand submitted a note of submission wherein it is indicated that the petitioner had received family pension of Rs.4,35,065/- and not Rs.5,04,901/- as contended by the learned counsel for the petitioner. He argued that one third of such pension amount is to be deducted for nominal expenditure and thus the net income from family pension comes to Rs.2,90,000/-. While not disputing the differential amount of Rs.2,92,290/- which the petitioner received due to sale of land in Mouza Haladia Padar, Berhampur so also the cost of the total agricultural land purchased in the name of the petitioner to the tune of Rs.1,33,730/-, he submitted that the petitioner had bank deposits of Rs.3,91,326/- and not Rs.3,47,655/- as submitted by the learned counsel for the petitioner. It is submitted that the petitioner had excess assets to the tune of Rs.88,911/-. 6. Adverting to the contentions raised by the learned counsel for the respective parties and on careful scrutiny of the charge sheet, it is found that the deposits standing in the name of the petitioner in different banks and post office which was shown under the heading of 'movable assets' comes to Rs.3,47,655/- and not Rs.3,91,326/- as contended by the learned counsel for the Vigilance Department. If the undisputed amount of Rs.1,33,730/- towards the purchase value of the agricultural land is added to it, then it comes to Rs.4,81,385/-. If the undisputed amount of Rs.1,33,730/- towards the purchase value of the agricultural land is added to it, then it comes to Rs.4,81,385/-. Therefore, the learned counsel for the petitioner is right in his submission that the petitioner had acquired total assets of Rs.4,81,385.00 paisa during the check period. Even if it is taken into account as contended by the learned counsel for the Vigilance Department that after deducting the nominal expenditure of one-third of the family pension, the net income of the petitioner under that heading comes to Rs.2,90,000/- and since it is not disputed that the petitioner has received differential amount of Rs.2,92,290/- due to sale of land in Mouza Haladia Padar, Berhampur, therefore, the total individual income of the petitioner during the check period can be calculated at Rs.2,90,000/- (+) Rs.2,92,290/- = Rs.5,82,290/-. As against the net income of Rs.5,82,290/-, if the petitioner has acquired total assets of Rs.4,81,385/-, it cannot be said that there was any excess assets possessed by the petitioner which has come to her from her son Shri Akhaya Kumar Padhy. The investigating officer should have carved out the individual income of the petitioner, her expenditure and the assets acquired by her and not by jumbling up with her son who is the main accused in the case and thereby coming to hold that she acquired the assets on behalf of her son by abating him in the accumulation of disproportionate assets and therefore making her liable with the aid of section 109 of the Indian Penal Code. 7. It is not in dispute that in view of the ratio laid down in the case of P. Nallammal Vs. State, (1999) 6 SCC 559 , if a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the 1988 Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. Merely because some of the disproportionate assets stand in the name of a non-public servant, without any element of abetment, he cannot be asked to face the trial along with the public servant on the ground that he is the kith and kin of the public servant. Merely because some of the disproportionate assets stand in the name of a non-public servant, without any element of abetment, he cannot be asked to face the trial along with the public servant on the ground that he is the kith and kin of the public servant. However, if there are specific materials against such non-public servant being a kith and kin of the public servant to have abetted the public servant in the acquisition of disproportionate assets, he can be prosecuted along with the public servant in the disproportionate assets case which would depend on the facts and circumstances of each case. In the said case, illustrations have been given as to how the offence under section 13(1)(e) of the 1988 Act can be abetted by non-public servants. 8. The expression "cognizance" connotes to take notice of judicially. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. It is nothing but taking of judicial notice on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. Criminal law cannot be set into motion as a matter of course. Cognizance is taken of an offence and not of the offender. At this stage, the Magistrate has to satisfy whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial stage and not at the stage of investigation or even at the stage of submission of charge sheet. The Court is not required to go into a detail discussion of the merits or demerits of the case so as to find out if the allegations and the charges are true or not. Adequacy of the evidence will not be seen by the Court at the stage of taking cognizance but the Court should keep in mind that judicial process is not misutilized as an instrument of opposition or needless harassment. While invoking its inherent powers under section 482 of Cr.P.C. to quash a criminal proceeding, the High Court has to strictly confine itself to the allegations made in the first information report and charge sheet. A mini trial at that stage is impermissible. While invoking its inherent powers under section 482 of Cr.P.C. to quash a criminal proceeding, the High Court has to strictly confine itself to the allegations made in the first information report and charge sheet. A mini trial at that stage is impermissible. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent powers should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. In the case of State of Haryana Vs. Ch. Bhajan Lal, (1992) AIR SC 604, it is held that the inherent powers under section 482 of Cr.P.C. has to be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice. If the allegations made in the first information report and charge sheet, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the accused or the criminal proceeding is manifestly attended with mala fide or maliciously instituted with an ulterior motive for wreaking vengeance on the accused or with a view to spite him due to private and personal grudge, the High Court can exercise its inherent powers to prevent abuse of process and to secure ends of justice. It should not be forgotten that criminal prosecution is a serious matter as it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. 9. The investigating officer is required to act fairly, impartially and reasonably and conduct a thorough investigation without bias or prejudice. It should not be forgotten that criminal prosecution is a serious matter as it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. 9. The investigating officer is required to act fairly, impartially and reasonably and conduct a thorough investigation without bias or prejudice. While analysing the materials available on record, it appears that the petitioner had got the net income to acquire the assets standing in her name and there were no excess assets possessed by her which can be said to have come to her from her son. The investigating officer seems to have acted in a very casual manner and has submitted charge sheet against the petitioner without any clinching material that the petitioner abetted her son or made any conspiracy or instigated in the alleged acquisition of disproportionate assets by her son. In view of the foregoing discussions, I am of the humble view that the impugned order passed by the learned Special Judge (Vigilance), Berhampur in taking cognizance of offence and issuing process against the petitioner is not sustainable in the eye of law and the same is hereby set aside. Anything said or any observation made in this judgment shall not influence the mind of the learned trial Court to adjudicate the trial in respect of the co-accused persons in accordance with law. Accordingly, the CRLMC application is allowed.