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2019 DIGILAW 673 (ORI)

Kamala Basini Mohanty v. State Of Odisha

2019-12-18

B.P.ROUTRAY, S.K.MISHRA

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JUDGMENT B.P.Routray, J. - The order dated 1.8.2018 passed by the learned Special Judge, Special Court, Cuttack in T.R.Case No.6 of 2013 rejecting the prayer of the petitioner for discharge has been assailed in the present petition. 2. The petitioner along with her husband are accused in the aforesaid case for alleged commission of offence under Sections 13(2) and 13(1) (e) of the Prevention of Corruption Act, 1988. The petitioner was the District Inspector of Schools while her husband was serving as Soil Conservation Officer, Dhenkanal. On the allegation of possessing assets disproportionate to their income to the extent of Rs.31, 14, 741.07p, chargesheet was filed before the court below against both the accused persons and the check period is from 1.1.1980 to 26.12.2001. 3. Before framing of charge, the petitioner prayed for her discharge under Section 239 of the Code of Criminal Procedure. She inter alia had taken a stand that the allegations levelled against her regarding commission of offence are not true and she being a Government servant started her service career in the year 1972 as an Assistant Teacher, but the Vigilance Department had wrongly accounted the income, expenditure and assets of both the husband and wife jointly to show disproportionate increase of assets to the extent of 99% to their income and moreover, she being not an officer holding high public office should not be tried before the Special Court. The learned court below considering the prayer of the petitioner and to such averments made by her has rejected it by the impugned order under Annexure-5. 4. The petitioner challenges the rejection of her prayer for discharge before us inter alia on the grounds that she not being an officer holding high public office cannot be tried before the Special Court jointly with her husband and further the court below has erred in not considering the probative value of materials brought on record. 5. The main thrust of challenge of the petitioner is that, when the sanction order under Section 5 of the Special Courts Act has been granted in favour of her husband for his prosecution before the Special Court, she cannot be added with him to face trial jointly. The said submission of the petitioner does not appear correct in view of the provisions contained in Section 7 of the Special Courts Act. The said submission of the petitioner does not appear correct in view of the provisions contained in Section 7 of the Special Courts Act. Section 7 prescribes that a Special Court shall have jurisdiction to try any person alleged to have committed the offence in respect of which a declaration has been made under Section 5, either as principal, conspirator or abettor and for all the other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code of Criminal Procedure. Therefore, it is clear that the Special Court has jurisdiction to try any person as the principal accused along with all other accused persons as can be jointly tried. Besides, when the admitted relationship of both the accused persons is husband and wife and they are living jointly having joint assets, it is impracticable at this stage to segregate the income and expenditure of each of the accused. 6. The law on discharge is no more res integra. What is argued on behalf of the petitioner that the court below has not considered the probative value of the materials brought on record while considering her prayer for discharge cannot be faulted with, for the reasons that, the Court at the stage of framing of charge is to consider the sufficiency of materials available on record to find out if a prima facie case has been made out or not and a roving inquiry at this stage is not permissible. 7. Accordingly, we do not find any infirmity in the order of the court below. The petition is dismissed.