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2019 DIGILAW 560 (ORI)

Pratima Mohanty v. State of Odisha

2019-09-04

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The petitioner Pratima Mohanty in CRLMC No.3177 of 2017 and the petitioners Bibhuti Bhusan Ray, Rajendra Kumar Samal, Parsuram Biswal and Prakash Chandra Patra in CRLMC No.4804 of 2015 have filed these criminal miscellaneous applications under section 482 of the Code of Criminal Procedure for quashing the impugned order dated 18.08.2014 passed by the learned Special Judge, (Vigilance), Bhubaneswar in T.R. No.30 of 2014 in taking cognizance of offences under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter 1988 Act') and section 420 read with section 120-B of the Indian Penal Code and issuance of process against them. The said case arises out of Bhubaneswar Vigilance P.S. Case No.31 of 2005. Since both the CRLMC applications arise out of the same case, with the consent of learned counsel for both the parties, the applications were heard analogously and disposed of by this common judgment. 2. The prosecution case, as per the first information report dated 08.11.2005 lodged by K.S. Balabantray, Deputy Superintendent of Police, Vigilance, Vigilance Cell Unit Office, Bhubaneswar before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar, in short, is that a preliminary enquiry was taken up basing on the credible source information that certain public servants occupying crucial position in Bhubaneswar Development Authority (hereafter 'B.D.A.') and in the Housing and Urban Development Department, Government of Odisha (hereafter 'H. & U.D. Deptt.') surreptitiously distributed prime plots in Commercial Complex District Centre, Chandrasekharpur, Bhubaneswar,. It is alleged in the F.I.R. that during the year 2000, the petitioners Parsuram Biswal and Rajendra Kumar Samal were functioning as Dealing Assistants in the Allotment Section in B.D.A. and Sri Bivas Kanungo, OAS(I) and Sri P.K. Patnaik, OAS(I) were the Officer on Special Duty (land) and Secretary, B.D.A. respectively. It is alleged in the F.I.R. that during the year 2000, the petitioners Parsuram Biswal and Rajendra Kumar Samal were functioning as Dealing Assistants in the Allotment Section in B.D.A. and Sri Bivas Kanungo, OAS(I) and Sri P.K. Patnaik, OAS(I) were the Officer on Special Duty (land) and Secretary, B.D.A. respectively. In pursuance of the criminal conspiracy and by abusing their official positions, those officials of B.D.A. surreptitiously distributed prime plots in Commercial Complex District Centre, Chandrasekharpur, Bhubaneswar among Sri Sibananda Biswal, brother of the petitioner Sri Parsuram Biswal, in his own name Sri Bivas Kanungo, OAS(I), ODS(Land), B.D.A., Smt. Sanjukta Mohanty, wife of Sri Alekha Padhiary, OAS (I), Director, Housing Government of Orissa, Sri Pradyumna Kumar Mohanty, brother of the petitioner Pratima Mohanty, Steno to the then Vice Chairman, B.D.A., Smt. Amita Tarenia, wife of Sri Ashok Tarenia, OAS (I), H.U.D., Smt. Triptimayee Pradhan, Smt. Rajalaxmi Samal, Sri Anam Charan Pradhan, Sri Anirudha Patnaik and Smt. Kalpana Sarkar. It is further alleged in the F.I.R. that there was no advertisement in providing opportunity to the general public regarding availability of B.D.A. plots for sale and their sale prices. Keeping the general public in darkness, the public servants in B.D.A. who had access to such information as insiders, distributed the prime plots among themselves or their relatives beyond the knowledge of general public and that to at minimal rates as compared to the prevalent rates in the area and thereby causing undue pecuniary advantage to the allottees and corresponding loss to the B.D.A. and public exchequer without any public interest. It is further alleged in the F.I.R. that the plots developed by B.D.A. in the same locality as District Centre, Chandrasekharpur were put to auction in the advertisement published in the Daily Newspaper "Indian Express" dated 13.10.2001, in which sealed tenders were invited from the intending purchases for allotment of commercial plots at District Centre, Chandrasekharpur at the minimum cost of Rs.120/- per sq. ft. but after opening of tender, the intending bidders were found to have quoted rates Rs.339/- (highest bidder) per sq. ft. and Rs.225/- (lowest bidder) per sq. ft whereas in the instant case, plots in the prime locality were allotted to the Land Officer of B.D.A., kith and kin of B.D.A. employees at a minimal rate of Rs.71.00 per sq. ft. surreptitiously. Taking the lowest rate of Rs.225/- per sq. ft. ft. and Rs.225/- (lowest bidder) per sq. ft whereas in the instant case, plots in the prime locality were allotted to the Land Officer of B.D.A., kith and kin of B.D.A. employees at a minimal rate of Rs.71.00 per sq. ft. surreptitiously. Taking the lowest rate of Rs.225/- per sq. ft. which was obtained in case of District Centre, Chandrasekharpur in response to the aforesaid advertisement dated 13.10.2001, the wrongful loss sustained by B.D.A. comes to Rs,30,27,849.80. It is further alleged in the F.I.R. that as per the registers of Sub-Registrar, Khandagiri maintained for registration of sale deeds of lands for the year 2000, the average cost per sq. ft. in that locality worked out at Rs.506.40 and adopting this yardstick, the loss sustained by B.D.A. comes to Rs.71,57,055.00 and corresponding undue pecuniary advantage to the public servants and the aforesaid private persons. It is further alleged in the F.I.R. that in the year 2000, more than hundred plots in the same locality were allotted on record at a lesser price by the aforesaid B.D.A. officials without any public interest by abusing their official position with ulterior motive. It is stated that the aforesaid facts disclosed commission of offences under section 120-B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the 1988 Act by the petitioners Parsuram Biswal and Rajendra Kumar Samal so also by Bivas Kanungo, OAS (I), P.K. Patnaik, OAS(I) and others. 3. On the basis of such F.I.R., Bhubaneswar Vigilance P.S. Case No.31 of 2005 was registered under section 13(2) read with section 13(1)(d) of the 1988 Act and section 120-B of the Indian Penal Code. During investigation of the case, it was found that the Govt. of Odisha in G.A. Department alienated Ac.35.120 dec. of land in favour of B.D.A. under Mouza Chandrasekharpur in Bhubaneswar Municipal Corporation with a purpose to establish Commercial Shopping Complex. On getting such land, B.D.A. authorities introduced one scheme styled as "District Centre, Self-Financing Commercial Complex, Chandrasekharpur, Bhubaneswar". A brochure was prepared mentioning the details of the scheme, numbers of different plots, the norms and terms for applying for the plots, payment schedule for each category of plots, selection of allottees, payment of interest, last date of receipt of applications, refund of money, execution of lease deeds etc. A brochure was prepared mentioning the details of the scheme, numbers of different plots, the norms and terms for applying for the plots, payment schedule for each category of plots, selection of allottees, payment of interest, last date of receipt of applications, refund of money, execution of lease deeds etc. As per the conditions reflected in the brochure, each applicant has to purchase a brochure containing application forms and to apply in the prescribed format by depositing the EMD through challan. Tender call notice was published in daily newspaper "The Samaj" inviting intending persons to apply for those plots. In response to such publication, 510 numbers of applications were received within due date. A lottery was conducted against 224 numbers of commercial plots and the rest plots were not included in the said lottery as those were reserved for various other purposes. Separate lotteries were conducted for Pindies and other categories of plots on different dates. It also revealed during course of investigation that as per the brochure condition, the Chairman of B.D.A. had the discretionary quota of 10% of the total layout plots. Minister of H. & U.D. Deptt. used to be the Chairman of B.D.A. Though the previous Minister passed order relating to allotment of some plots from his discretionary quota, after Shri Sameer Dey became the new Chairman, he cancelled the order of the previous Chairman and allotted the plots to his supporters according to his own choice. Some of the applicants who could not get plots approached this Court by filing writ petitions and as per the order of this Court, a lottery was again held on 03.01.2000 against 88 numbers of plots in which only 18 plots were allotted to the persons who had approached the High Court. The Architect Section of B.D.A. prepared lay out plans and accordingly the entire land alienated to B.D.A. were plotted to 379 commercial plots and ultimately ten plots remained vacant. The B.D.A. authorities without taking any steps for allotment of ten plots as laid down in the brochure, made no advertisement inviting tender from intending purchasers rather concealed the matter from the general public and thereby avoided competition. The relatives of the employees/office holders and accused persons in B.D.A. and H. & U.D. Deptt. The B.D.A. authorities without taking any steps for allotment of ten plots as laid down in the brochure, made no advertisement inviting tender from intending purchasers rather concealed the matter from the general public and thereby avoided competition. The relatives of the employees/office holders and accused persons in B.D.A. and H. & U.D. Deptt. submitted applications in plain papers for allotment of those ten plots and on the basis of lottery held on 30.09.2000, those ten plots were allotted to different persons. It was found during investigation that one of such ten plots was allotted to one Sivananda Biswal, the nephew of the petitioner Parsuram Biswal who initiated a separate file on the subject on 18.08.2000 and suggested for allotting the plots in favour of ten applicants who had deposited initial money along with their applications and further suggested to obtain orders of Chairman and marked the file to the Section Officer concealing the fact that his relative Sivananda Biswal was one of the applicants. He even did not suggest the authority to go for tender process as per brochure condition. It was further found during investigation that the petitioner Bibhuti Bhusan Ray as Section Officer in his note dated 19.08.2000 agreed with the suggestion given by petitioner Parsuram Biswal and further suggested to sub-divide the bigger plots into smaller sizes to accommodate all the applicants and marked the file to Allotment Officer with suggestion to allot the plots in favour of the ten applicants. He also concealed the fact that his close friend Sri Anam Charan Pradhan, a Panel Contractor of B.D.A. was one of the applicants. Later on the petitioner transferred the ownership of the plot allotted to Sri Pradhan in the name of his nephew Sri Devashis Biswal and occupied the same. He has also not suggested going for tender process and for wide publication of the vacant plots. It was found during investigation that the file was then placed before the Allotment Officer Sri Satyabrata Rout, O.A.S. who marked the file on 21.08.2000 to the Secretary, B.D.A. Sri P.K. Patnaik, O.A.S.-I who gave his noting and marked the file to the Vice-Chairman, B.D.A. and on 30.08.2000 Sri C.J. Venugopal, I.A.S., the then Vice-Chairman, B.D.A. simply marked the file to the Chairman, B.D.A. for his order. On the very day i.e. on 30.08.2000 the then Minister-cum-Chairman, B.D.A. Sri Sameer Dey signed the file and approved the suggestions and passed final order regarding allotment of ten plots to the applicants. On 05.09.2000 the petitioner Parsuram Biswal dealt with the file again and mentioned to allot the plots to ten applicants fixing the date for lottery on 19.09.2000. The petitioner Bibhuti Bhusan Ray also gave his noting and draft letter was prepared to intimate the allottees about allotment of plots in their favour and ultimately ten applicants were favoured with allotment of the plots. None of the applicants in their applications disclosed that their relatives were working in the B.D.A./ H. & U.D. Deptt. Similarly none of the accused public servants ever disclosed that the applicants were their family members/relatives. It was also found during investigation that one of the ten vacant plots was allotted in favour of one Pradyumna Kumar Mohanty whose application was without any date and the applicant happens to be the brother of the petitioner Pratima Mohanty, Steno to Vice-Chairman, B.D.A. The application was received on 09.07.2000 by Sri P.K. Patnaik, Secretary, B.D.A. Similarly one of such vacant plots was also allotted in favour of Smt. Rajalaxmi Samal whose application is dated 18.04.2000 and she happens to be the sister-in-law of the petitioner Prakash Chandra Patra who was the then Junior Assistant, Allotment Section, B.D.A. and it was forwarded by the Minister Sri Sameer Dey on 13.08.2000 and received by Secretary, B.D.A. Similarly, one of the ten vacant plots was allotted in favour of Triptimayee Pradhan, wife of the petitioner Rajendra Kumar Samal, Dealing Assistant, Allotment Section-II, B.D.A. and P.A. to Hon'ble Minister, H. & U.D. Deptt. whose application was without any date and it was received on 14.08.2000 by Sri P.K. Patnaik, Secretary, B.D.A. It was further found during course of investigation that the plots were allotted at a much lower rate than the prevailing market price for which B.D.A. sustained huge wrongful loss. The plots were allotted at the rate of Rs.71/- per sq. ft. whereas in the advertisement, sealed tenders were invited at the minimum rate of Rs.120/- per sq. ft. During opening of tender, it was found that the highest bidder quoted Rs.339/- per sq. ft. and the lowest bidder quoted Rs.203/- per sq. ft. and it was calculated that B.D.A. sustained a loss of more than Rs.71 lakhs. ft. whereas in the advertisement, sealed tenders were invited at the minimum rate of Rs.120/- per sq. ft. During opening of tender, it was found that the highest bidder quoted Rs.339/- per sq. ft. and the lowest bidder quoted Rs.203/- per sq. ft. and it was calculated that B.D.A. sustained a loss of more than Rs.71 lakhs. Since all the petitioners were the Government Servant working in B.D.A., Bhubaneswar, sanction orders for prosecution were obtained and charge sheet was submitted against them along with Sri Sameer Dey, the then Minister, H. & U.D. Deptt. on the accusation that they entered into criminal conspiracy and committed criminal misconduct by abusing their official position showing undue official favour to the applicants/allottees as they are somehow or other related to them and allowed illegal pecuniary advantages to the allottees in allotting ten plots as a result of which B.D.A. sustained huge loss and thereby making the accused persons liable under section 13(2) read with section 13(1)(d) of the 1988 Act and section 420 read with section 120-B of the Indian Penal Code. 4. Mr. Soura Chandra Mohapatra, learned counsel appearing for the petitioners challenging the impugned order emphatically contended that except the petitioners Parsuram Biswal and Bibhuti Bhusan Ray in CRLMC No.4804 of 2015, none of the other three petitioners dealt with the allotment file in any manner and therefore, merely because one of the ten plots was allotted to the family member of each of those three petitioners, without any other clinching evidence, it cannot be said that they conspired with the co-accused persons or influenced anybody for getting the plots illegally. It was argued that for reduction of the valuation of the plots, none of the petitioners have got any role in it rather the case record indicates that at the instance of Sri P.K. Patnaik, Secretary, B.D.A., the valuation of the plots was made by Shri Jyoti Prasad Panda, the then Deputy Manager (Project Custom), B.D.A. which was approved by Rahaman Alli, Finance Member, B.D.A. and those two persons have not been arrayed as accused rather they were cited as witnesses in the charge sheet. It is further argued that out of total 379 commercial plots which were carved out through six-time revision of the lay out plan, as per charge sheet, 301 plots were allotted through lottery, 18 plots were allotted on the basis of the order passed by this Court, 25 plots were allotted by the discretionary quota of the Chairman, 13 plots were allotted as per the approval of the committee, 8 plots were allotted through auction, 3 plots were reserved for petrol pump and one plot was not allotted as the matter was subjudiced in the Court. It is argued that as per charge sheet, the applications for allotment for the ten vacant plots were received by Shri P.K. Pattanaik, the then Secretary, B.D.A. except three applications of Anirudha Patnaik, Rajalaxmi Samal which were forwarded by the Minister-cum-Chairman and one application of Sanjukta Mohanty was received by the Section Officer of the Allotment Section. It is contended that since the plots allotted in favour of Anirudha Patnaik and Rajlaxmi Samal were out of the remaining discretionary quota, it cannot be said to be illegal allotment. Mr. Mohapatra relied upon the note sheet of the allotment file of the concerned plots which indicates that number of applications were received by the Allotment Section which were scrutinized by the petitioner Parsuram Biswal and it was found that some of those were plain applications without any deposit, whereas in some other applications, initial money was deposited in the B.D.A. account. The petitioner Parsuram Biswal as per his noting dated 18.08.2000 suggested that the applicants who submitted their applications with initial deposit may be allotted the plots and further suggested that appropriate order be obtained from Chairman, B.D.A. The file was marked to the petitioner Bibhuti Bhusan Roy, Section Officer who on receipt of the file gave his view on 19.08.2000 and suggested that since eleven applications were with initial deposits, out of the nine available plots, the bigger plots be bifurcated to accommodate all the eleven applicants and he further observed that approval of the Chairman be obtained. The file was then placed before the Allotment Officer Shri Satyabrata Rout for his view who suggested that all the plain applications along with the eleven applications containing the deposit be put up for order. The file was then placed before the Allotment Officer Shri Satyabrata Rout for his view who suggested that all the plain applications along with the eleven applications containing the deposit be put up for order. In the conclusion, the Allotment Officer noted that orders may be taken regarding allotments of plots to the applicants who have deposited the amount. He signed the note sheet on 21.08.2000 and transmitted the file to the Secretary. The Secretary, B.D.A. Shri P.K. Patnaik passed the order on 24.08.2000 to the effect that at the relevant time, B.D.A. was following the practice in allotment on principle of first-cum-first-serve basis and the applicants who made initial deposits were entitled to take advantage of the provision. The note sheet suggested bifurcation of the bigger plots to carve out ten plots out of existing nine plots and to allot ten applicants who have deposited initial amount earlier deleting the 11th applicant from consideration and to intimate the 11th applicant about the non-availability of the plots and expressing regret for non-consideration of his application. He further suggested that the ten applicants as serial nos.1 to 10 be issued with allotment letters and accordingly he transmitted the file to Vice-Chairman for his consideration and orders. The Vice-Chairman Shri C.J. Venugopal gave his note on 30.08.2000 and the file was placed before the Chairman who approved the suggestions and passed the final order for allotment of ten plots to the ten applicants. Since the 10th applicant had already received a plot from the discretionary quota of the Chairman, therefore, he was excluded from the list and the 11th man was allotted with the plot. It is submitted by Mr. Mohapatra that the statement of Vice-Chairman of B.D.A. namely Shri C.J. Venugopal was recorded who stated that generally the plots developed by B.D.A. are not put to auction as in that case the moneyed people may get the plots depriving the poor or middle class people. He endorsed the policy i.e. first-cum-first-serve basis which was prevailing then and marked the file to Chairman for suitable order and accordingly, the Chairman took the decision. Mr. Mohapatra highlighted that the ten beneficiaries in whose favour the lands were allotted have not been figured as accused in the charge sheet. Some of the officials and their close relatives who were allotted plots out of those ten remaining plots have also not been arrayed as accused. Mr. Mohapatra highlighted that the ten beneficiaries in whose favour the lands were allotted have not been figured as accused in the charge sheet. Some of the officials and their close relatives who were allotted plots out of those ten remaining plots have also not been arrayed as accused. It is further submitted that neither the petitioner Bibhuti Bhusan Roy nor Parsuram Biswal were authorized to allot any plot in favour of any person nor authorized to reject the applications or to show favour to any of the applicants. They have not suppressed any material facts while preparing their respective notes and acted as per the prevailing guidelines and procedure of B.D.A. and never mislead their superior authority to allot plots in favour of their close relatives. The relatives of the two petitioners Bibhuti Bhusan Roy and Parsuram Biswal acquired their right to make applications independently like many other applicants for getting the left out vacant plots. He argued that the ten plots were not included in the advertisement as it was not in existence and after the last revision of lay out plan, those plots came into existence. It is further submitted that the lay out plan was revised for six times on different dates and the last one was done in the year 2001. In this context, he relied upon the statements of Dharanidhar Biswal (C.S.W. 14) and Prasant Kumar Patnaik (C.S.W. 16). It is submitted that availability of the ten plots was not only known to the B.D.A. staff but also to others for which number of applicants applied for the left out ten vacant plots. The decision making power was lying with the Secretary and Vice-Chairman of B.D.A. who have not been arrayed as accused in the case and their decision was binding on all other sub-ordinate staff of B.D.A. including the petitioners. He argued that order of taking cognizance and issuance of process against the petitioners is totally perverse and if the criminal proceeding is allowed to continue against them, it would cause serious prejudice to them and therefore, in the interest of justice, this Court should exercise its inherent powers under section 482 of Cr.P.C. to quash the impugned order and the criminal proceeding against the petitioners. Mr. Niranjan Moharana, learned Addl. Mr. Niranjan Moharana, learned Addl. Standing Counsel for the Vigilance Department on the other hand submitted that when ten plots remained vacant, no advertisement for allotment of such plots from the intending purchasers was made. The relatives of the employees, office holders and the accused persons in B.D.A. and H. & U.D. Department submitted applications for allotment of such plots. There is a prescribed application form which is required to be obtained by the intending applicant by submitting requisite fees for the said form from the counter. None of the applications received for the ten plots was in the prescribed format. The prescribed form contains certain declaration from the intending applicants at the time of submission of form in the column prescribed. The plots were acquired in cheaper rate which caused loss to the B.D.A. Mr. Moharana however fairly submitted that the charge sheet is silent as to how many applications were received for those ten plots and how those applicants apart from the allottees came to know about the left out ten vacant plots. He argued that during investigation, it was found out that all the eleven applicants in which initial deposits were made were the kith and kin of the B.D.A. staff and since nine plots were available as one plot was kept without allotment as it was subjudiced in the Court of law, the accused persons decided to divide a big plot to make nine plots to ten plots and since applicant no.10 had already been allotted with a plot under the discretionary quota of the Chairman, the said application was discarded and ten applications were considered for allotment. It is submitted that the accused persons who were serving in the B.D.A. entered into a conspiracy and obtained the left out plots in the name of their kith and kin in low price which was not transparent and against public interest. It is submitted that at the stage of taking cognizance, the Court is required to find out whether prima facie case is made out for summoning the accused and it is not the stage to consider the defence version or whether the materials would lead to conviction or not. The accused may get a chance at the stage of framing of charge by filing discharge petition to show that the materials are absolutely insufficient for framing of charge against him. The accused may get a chance at the stage of framing of charge by filing discharge petition to show that the materials are absolutely insufficient for framing of charge against him. Learned counsel submitted that since Government refused to accord sanction for prosecution against Sri Pradip Kumar Patnaik, Ex-Secretary, B.D.A., Ashok Tarenai, Personal Secretary to the then Chairman -cum-Minister, H. & U.D. Department and Bivas Kanungo, O.S.D., B.D.A. though prima facie material was available against them, therefore, no charge sheet was filed against them. It is submitted that if the materials come against other persons during course of trial, the prosecution would take steps against them by making appropriate application under section 319 of Cr.P.C. but that cannot be a ground to quash the proceeding against the petitioners. He pointed out how the kith and kin of each of the petitioners got one of the left out vacant plots. It is submitted that the discretionary quota of the Chairman had already been exhausted and therefore, no allotment could have been made under that heading. He placed the statements of witnesses namely Jyoti Prakash Panda, Makardwaja Patsani, Dharanidhar Biswal, Rehman Ali, Prakash Chandra Patra, Subrat Kumar Tripathy and Nikunja Bihari Routray and contended that even though the petitioners were not responsible for the reduction of the cost of the plots but their involvement in the crime is prima facie apparent and therefore, there is no illegality in the impugned order and this Court should not exercise its inherent powers to quash the same. 5. Adverting to the contention of the learned counsel for the respective parties and on careful analysis of the materials on record, it appears that all the five petitioners were serving in B.D.A. in different posts. The petitioner Parsuram Biswal was the Dealing Assistant and petitioner Bibhuti Bhusan Ray was the Section Officer in the Allotment Section of B.D.A. respectively. The petitioner Rajendra Kumar Samal was the Dealing Assistant in Allotment Section-II, B.D.A. as well as P.A. to the Minister, H. & U.D. Department. The petitioner Prakash Chandra Patra was the Junior Assistant in the B.D.A. and the petitioner Pratima Mohanty was the Steno to the Vice-Chairman, B.D.A. It is also not in dispute that the Government of Odisha in G.A. Department alienated Ac.35.120 dec. The petitioner Prakash Chandra Patra was the Junior Assistant in the B.D.A. and the petitioner Pratima Mohanty was the Steno to the Vice-Chairman, B.D.A. It is also not in dispute that the Government of Odisha in G.A. Department alienated Ac.35.120 dec. of land in favour of B.D.A. for establishing commercial shopping complex and the entire land was plotted to 379 commercial plots through six-time revision of the lay out plan. As per charge sheet, after allotment under different categories, ten plots remained vacant which were of different sizes. It is also not in dispute that for those ten vacant plots, no advertisement inviting tender from intending purchasers was made and those plots were allotted in favour of different persons and five of such ten plots were allotted in favour of the close relatives of each of the petitioners and that to at a lower price. It appears that the petitioners Parsuram Biswal and Bibhuti Bhusan Roy dealt with the allotment file which was separately initiated in respect of those ten vacant plots and placed notes giving various suggestions and ultimately those suggestions were accepted with little variation and allotment order was passed. Why the B.D.A. authorities decided not to go for advertisement inviting tender from the intending purchasers in respect of the ten vacant plots? The statement of the Vice-Chairman, B.D.A. Shri C.J. Venugopal indicates that when the allotment file was submitted to him during August 2000 by Shri P.K. Patnaik, Secretary, B.D.A. with recommendation to allot plots to some applicants on first-cum-first-serve basis as per practice norms of B.D.A., the note did not mention whether any advertisement regarding the vacant plots was made or not and also about the rate. He further stated that generally the plots developed by B.D.A. are not put to auction, as in that case, the moneyed men might get the plots depriving the poor or middle class people. If the statement of the Vice-Chairman is taken into account, it is not understood as to how the poor or middle class people would come to know about such plots developed by the B.D.O. if not put to auction. If the statement of the Vice-Chairman is taken into account, it is not understood as to how the poor or middle class people would come to know about such plots developed by the B.D.O. if not put to auction. Once the advertisement inviting tender is not made then very few people who are in the inner circle of B.D.A. can only know about the existence of such plots for allotments, in the event of such there is likelihood of genuine persons being deprived of such allotment and also likelihood of showing favouritism to some of the applicants. This would lead to unfair practice. Rule 52 of the Odisha Development Authorities Rules, 1983 (hereafter 1983 Rules') which deals with disposal of property states, inter alia, that the properties which have been acquired in pursuance of a scheme shall, as far as possible, be utilized for the execution of the said scheme. If any property which has been so required is later found to be surplus for the purpose of that scheme, the Authority may, subject to any direction by the State Government, utilize, let out, or dispose of that property in such manner and subject to such terms and conditions as the Authority may consider expedient. The rule further states that subject to any direction by the State Government, the Authority may dispose of any land acquired by the State Government and transferred to it, inter alia, after undertaking and carrying out such development as it thinks fit to such persons in such manner and subject to such terms and conditions as it considers expedient for securing the planned development of the area under its jurisdiction. When Government of Odisha in G.A. Department alienated the land in favour of B.D.A. for establishing commercial shopping complex and after allotment under different categories, ten plots of different sizes remained vacant, there was no earthly reason for the Authority not to go for fresh advertisement inviting tender from the intending purchasers or at least seeking for a direction from the State Government for letting out or disposing of the property in any particular manner. When the petitioner Parsuram Biswal initiated a separate file for allotment of the nine vacant plots of different sizes on 18.08.2000, he has not mentioned as to why it would not be placed for fresh advertisement. When the petitioner Parsuram Biswal initiated a separate file for allotment of the nine vacant plots of different sizes on 18.08.2000, he has not mentioned as to why it would not be placed for fresh advertisement. He has not even mentioned that generally the plots developed by B.D.A. are not put to auction. He has not kept in view Rule 52 of the 1983 Rules. He has rather suggested that the vacant plots may be allotted to the applicants who have deposited initial money with their applications out of the total applications received for the purpose knowing full well that one of such applicants who deposited initial money with his application is his nephew Sivananda Biswal whose application was received on 01.08.2000 by Shri P.K. Patnaik, the then Secretary, B.D.A. It is not clear as to how the successful allottees or other applicants, if any, came to know about the availability of such vacant plots for allotment. How those successful allottees submitted applications with initial deposits, who fixed the initial deposit amount and why such deposit was accepted when no procedure has been formulated for accepting such applications are all shrouded in mystery. Why the other applicants who submitted plain applications were not told to apply by making some initial deposits, are the matters which are likely to be unfolded during trial when material witnesses would be examined and documents would be proved. At this stage, any finding in that respect is likely to cause serious prejudice to the accused persons. Even though the petitioners appear to have no role in the fixation of the price of those ten vacant plots at a lower rate but it cannot be lost sight of the fact that due to such fixation, the allottees were benefited and equivalent loss was sustained by B.D.A. The manner in which everything has been stage managed right from the initiation of a separate allotment file and done surreptitiously to grant plots to the kith and kin of the some of the employees of B.D.A. and also those attached to H. & U.D. Deptt. raises a strong suspicion against their conduct particularly in view of the post which they were holding. raises a strong suspicion against their conduct particularly in view of the post which they were holding. Law is well settled that even when materials are there on record raising strong suspicion against an accused, the trial Court would be justified in framing the charge and thereby giving opportunity to the prosecution to bring on record the entire evidence in accordance with law so that the case of both the sides may be considered appropriately on conclusion of trial (Ref.:- Sonu Gupta Vs. Deepak Gupta and others, (2015) 60 OCR 993 (SC)). 6. It is not in dispute that the petitioners Pratima Mohanty, Rajendra Kumar Samal and Prakash Chandra Patra have not dealt with the allotment file in any manner which was initiated by petitioner Parsuram Biswal on 18.08.2000. There is also no material that any of these three petitioners influenced any co-accused or any officer of B.D.A. or H. & U.D. Deptt. for getting the plots illegally in favour of their family members. There is also no material on record that these petitioners had pre-concert of mind and they made any criminal conspiracy with the co-accused persons to get the vacant plots. The family members of the three petitioners in whose favour the lands were allotted have submitted applications with initial deposit prior to the initiation of allotment file and therefore, they were not sure at that time whether they would be favoured with any allotment order. Only after initiation of allotment file, their pending applications yielded fruitful result. In view of the definition of 'criminal conspiracy' in section 120-A of the Indian Penal Code, agreement is the gist of the offence and mere passive cognizance of a conspiracy is not sufficient. To constitute an offence of criminal conspiracy, there ought to be active cooperation in furtherance of a joint evil intent. It underlined the rule of evidence relating to such offence that anything said or done by anyone of the conspirators, with regard thereto, is under certain circumstances evidence against the other. The logic being that within the realm of conspiracy, the position of the conspirators is analogous to that of partners, one being considered as the agent of the other. It is held in case of Rajiv Kumar Vs. The logic being that within the realm of conspiracy, the position of the conspirators is analogous to that of partners, one being considered as the agent of the other. It is held in case of Rajiv Kumar Vs. State of U.P., (2017) CriLJ 4734 that it is extremely difficult to adduce direct evidence to prove conspiracy and existence of criminal conspiracy and its objective can be inferred from surrounding circumstances and the conduct of the accused and in some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself. In the present case, when there is no clinching material that any of these three petitioners abused their official position and played any specific role in the allotment of the plots in favour of their family members, it would not be proper to proceed against them. Therefore, I am of the humble view that continuance of criminal proceeding against the petitioners Pratima Mohanty, Rajendra Kumar Samal and Prakash Chandra Patra would amount to abuse of process of Court and taking cognizance of offence and issuing process against them is not sustainable in the eye of law and therefore, invoking my inherent powers under section 482 of Cr.P.C., I direct quashment of the impugned order in respect of those three petitioners and the criminal proceeding against them. 7. So far as the petitioners Parsuram Biswal and Bibhuti Bhusan Ray are concerned, they were not only the Dealing Assistant and Section Officer in the Allotment Section of B.D.A. respectively but played vital role in the institution of the allotment file for the ten vacant lands and placing favourable notes for allotment of the vacant plots to the applicants who have deposited initial money with their applications knowing full well that one of their family members is the applicant and also suppressing material facts in it which ultimately resulted in allotment of the plots in favour of such family member. Since at the stage of taking cognizance, it is to be seen whether there is prima facie case against the accused and not whether there is sufficient ground for conviction which can be determined only at the trial stage, in view of the available materials on records, it cannot be said that either the investigating agency has committed any illegality in submitting charge sheet against them or the learned Special Judge (Vigilance) committed any illegality in passing the impugned order against them. Even though some other persons have also played vital roles in the allotment of vacant plots and they have not been arrayed as accused for want of sanction for prosecution from the competent authority or for some other cogent reasons, the same cannot be a ground to quash the criminal proceeding against these two petitioners. Therefore, I find no illegality or impropriety in the impugned order in respect of the two petitioners Parsuram Biswal and Bibhuti Bhusan Ray. 8. In the result, CRLMC No.3177 of 2017 is allowed and the criminal proceeding against the petitioner Pratima Mohanty stands quashed. CRLMC No.4804 of 2015 is allowed in part and the criminal proceeding in respect of petitioner no.2 Rajendra Kumar Samal and petitioner no.4 Prakash Chandra Patra stands quashed, however, the proceeding shall continue in respect of petitioner no.1 Bibhuti Bhusan Ray and petitioner no.3 Parsuram Biswal in accordance with law. 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.