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2020 DIGILAW 15 (ORI)

Jasoda Behera v. State of Orissa

2020-01-14

BIBHU PRASAD ROUTRAY

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ORDER : Bibhu Prasad Routray, J. 1. The petitioner accused of the offences under section . 13(1) and 13(2) of the P.C. Act read with Sec. 109, I.P.C. has assailed the order dated 19.3.2019 passed by the learned Additional Special Judge, Vigilance, Cuttack in T.R. No. 44 of 2015 refusing her prayer for discharge. 2. Heard Mr. Subrat Kumar Nayak-3, learned counsel for the petitioner and Mr. Sangram Das, learned Standing Counsel for the Vigilance Department. 3. The husband of the present petitioner is the public servant against whom the principal offences have been alleged and the check period is from 16.11.1988 to 26.3.2010. The allegations against the husband is that during the check period against the income of Rs. 20,33,470/-, he acquired the assets of Rs. 19,99,318/- and his expenditure is Rs. 20,96,891/-. 4. The main contention of the arguments made on behalf of the petitioner is that in absence of any material against her for abetting the offences alleged, she has been falsely charge-sheeted by the Vigilance Department. In support of his contention, learned counsel for the petitioner relies on the decision of the apex Court in the case of Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao, reported in (2012) 9 SCC 512 and the decision of this Court in the case of Anjali Panda vs. State of Odisha (Vigilance), reported in 2019 (I) OLR 965 . It is further submitted that the house has been constructed by her availing loan from the Bank and the income she derived from house rent has not been accounted by the Vigilance Department while computing disproportionate assets. 5. The copy of the discharge petition filed before the learned court below has been annexed at Annexure-2 and it is seen from the said petition that in respect of the present petitioner, the contention was made that she not being the public servant, there is no material produced showing the abetment committed by her for the offence. It is further seen from the said petition that the main contention of the accused persons before the learned trial court was wrong calculation of the income of the public servant. It is further seen from the said petition that the main contention of the accused persons before the learned trial court was wrong calculation of the income of the public servant. However, the contention of the present petitioner that she cannot be charged for abetment of commission of offences alleged is not acceptable in view of the admitted fact that she is the wife of the public servant and both of them are residing jointly. 6. It is not the case of the petitioner that she married to the public servant post commencement of the check period and she also does not disclose her independent source of income for acquiring the land in her name. As seen from the revision petition, the land was purchased in her name in the year 1992 for Rs. 24,000/- and another land in the year 2003 at the cost of Rs. 88,000/-. Therefore, it is clear that the purchase of land so also construction of house thereon is within the check period. 7. In the case of Anjanli Panda (supra), the fact was different. In the said case, the land was allegedly gifted to the wife of the public servant by her father. But in the instant case, the land was acquired by the present petitioner during the check period when she had no income. Therefore, the said case of Anjali Panda is distinguishable from the present facts of the case. 8. In the case of Central Bureau of Investigation, Hyderabad (supra), the respondent who was an Advocate had allegedly gave wrong legal opinion to the Bank and the offence alleged against him was criminal conspiracy along with abetment. The Hon'ble Supreme Court held that, merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. 9. In the instant case, when acquisition of property by the petitioner in her name in absence of her independent source of income is undisputed, the same clearly attracts the provisions of abetment of the offences along with her husband (public servant). 10. Mere filing of income tax return will not help the petitioner for discharge. 9. In the instant case, when acquisition of property by the petitioner in her name in absence of her independent source of income is undisputed, the same clearly attracts the provisions of abetment of the offences along with her husband (public servant). 10. Mere filing of income tax return will not help the petitioner for discharge. In the case of State of Karnataka vs. J. Jayalalitha, (2017) 6 SCC 263 , the apex Court has observed that since the declaration made under the income tax are self-declared income, they are not conclusive proof and it requires rigorous trial. 11. It is well settled in law that the court of session while framing the charge has to see whether the material brought on record reasonably connect the accused with the offence and test of prima facie case is to be applied only. It is only required to see whether the materials offered by the prosecution are sufficient to proceed against the accused further and a roving inquiry is not permissible and it is not required to appreciate the evidence whether the materials produced are sufficient or not for convicting the accused. 12. When the petitioner is the wife of the public servant who had no independent source of income and the properties were acquired in her name while she was living jointly with the public servant, prima facie case for abetment of the offences by her along with her husband is clearly made out. Accordingly, I am not inclined to interfere with the impugned order as the learned trial court has rightly refused the prayer for discharge by the petitioner. 13. In the result, the criminal revision is dismissed being devoid of merit.