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2021 DIGILAW 380 (ORI)

E. Sankar Rao v. State Of Odisha

2021-09-01

S.K.PANIGRAHI

body2021
JUDGMENT S.K. Panigrahi, J. - This petition under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') has been filed with a prayer to quash the proceedings emanating from FIR No.45 dated 11.08.2016 leading to Berhampur Vigilance P.S. Case No.45 of 2016 corresponding to GR (V) Case No.33/2016(v) for alleged commission of offences u/s.13(2), r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'PCA') and u/s.109 of the Indian Penal Code 1860 (hereinafter referred to as 'IPC') which is pending in the Court of learned Special Judge Vigilance, Berhampur. 2. The facts leading to the present matter, in nutshell, is that upon receiving information regarding the petitioner's assets, searches were conducted at the petitioner's residence and at those of his relatives, after which his movable and immovable assets were assessed to be valued at Rs.74,54,526/-. His income for the check period between 01.01.2005 to 11.05.2016 was assessed to be Rs.31,70,057/- and the approximate expenditure was assessed to be Rs.13,60,521/-. Based on the above figures, the value of the disproportionate assets possessed by the present petitioner was estimated to be at Rs.56,44,990/-. On the basis of the aforementioned information, Vigilance GR Case No.33/2016(v) was registered and investigation commenced. However, till date the investigation has not been completed and no final form has been filed. 3. Challenging the long-drawn investigation, the petitioner had approached this Court in CRLMC No.1843/2019, whereby vide its order dated 06.01.2020, this Court was pleased to direct that the Vigilance authorities shall conclude the investigation expeditiously within a period of three months from the date of the order. The relevant portion of this Court's order dated 06.01.2020 in CRLMC No.1843/2019 is reproduced below: 'Learned counsel for the Vigilance Department would submit that the disproportionate assets, if any, of the petitioner is going to be assessed in the light of the affidavit as stated above to which the counsel for the petitioner has no objection but submits to conclude the investigation expeditiously. In view of the aforesaid affidavit of the Vigilance department, it is directed that the Vigilance shall do the needful to file the final form basing on the evidence collected and in the light of the affidavit filed within three months from today but adhering to the Department Circular as stated in the affidavit. With the aforesaid order, this criminal Misc. Case stands disposed of.' 4. With the aforesaid order, this criminal Misc. Case stands disposed of.' 4. Furthermore, the father of the petitioner also approached this Court in CRLMP No.1594 of 2020, praying that the household property listed at Sl. No.1 of the FIR, valued at Rs. 51,33,629/-, Plot No. 386 vide Patta No.102 in Rikapallimouza, Chatrapur listed at Sl. No.3 of the FIR, valued at Rs.2,20,412/- and Plot No.387 vide Patta No.229/837 in Rikapalli mouza, Chatrapur listed at Sl. No.4 of the FIR, valued at Rs.1,10,206/- be struck off from the FIR registered against the petitioner as these three properties belonged to him and not the petitioner and therefore the same could not be included in calculating the alleged disproportionate assets of his son. This Court vide its order dated 01.02.2021 in CRLMP No.1594 of 2020, was pleased to allow the prayer of the father of the petitioner and directed the vigilance authorities to proceed with the investigation excluding the aforementioned three properties. The relevant portion of this Court's order dated 01.02.2021 in CRLMP No.1594 of 2020 is reproduced below: 'Heard Mr. J. Samantaray, learned counsel on behalf of Mr. T.K.Acharya, Learned Counsel representing the petitioner and Mr. N.Moharana, Learned Additional Standing Counsel Vigilance through Video Conferencing Mode. According to Mr. Samantray, the grievance of the petitioner in the present case relates to inclusion of this household property at Sl.No.1 and his Plot bearing No.386 & 387 at Sl.No.3 &4 under the heading ' Immoveable and Moveable assets' in the FIR under Annexure-1 for calculating the alleged disproportionate assets of his son, namely E.Shankar Rao. Accordingly to the petitioner, the double started building as reflected at SL No.1 stands only over Plot No.385, 386 and 387 and 384 is a vacant plot, which stands in the name of his daughter in law, who happens to be the wife of the accused. Further he contends that neither far constructing the said building at Sl. No.3 and 4 under the heading ' Immoveable and moveable assets' in the FIR, the accused has ever made any contribution financially, therefore, inclusion of his double started building at Sl.No.1 and his plots at Sl.Nos 3 and 4 have been made without application of mind. Accordingly he prays that such inclusion of his properties at Sl. Nos 1,3 and 4 be deleted from the FIR. Mr. Accordingly he prays that such inclusion of his properties at Sl. Nos 1,3 and 4 be deleted from the FIR. Mr. Moharana relying on the objection affidavit dated 19.01.2021 filed by the Opposite party does not dispute the above noted submission of the learned counsel for the petitioner. Considering such submissions this Court is of the opinion that the above mentioned properties of the petitioner should not have been included in the FIR and accordingly directs the Opp.Party to proceed with investigation excluding the double storied building and Plot No.386 and 387 of the petitioner as reflected respectively against Sl.No.1, 3 and 4 under the heading 'Immoveable and Moveable assets' of the FIR. This writ application is accordingly disposed of.' 5. The learned counsel appearing for the petitioner earnestly contends that after this Court's order dated 01.02.2021 in CRLMP No.1594 of 2020, the value of the alleged disproportionate assets of the petitioner is reduced to less than 10% of his total income and a circular of the Vigilance Department bearing No.4/2015 clearly stipulates that criminal cases or open enquiries shall not be registered against Group C/Group D employees, unless where the rate of disproportion is very high (100% or more). After the exclusion of his father's properties as indicated above, this proceeding against the petitioner, therefore, is not maintainable and is liable to be quashed. The learned counsel for the petitioner also submits that the proceedings have been constituted against the petitioner with mala fide intention and there is intentional non- compliance of the order of this Court in CRLMC No.1843/2019 to conclude the investigation within three months only to harass the petitioner due to mala fide reasons best known to them. 6. In fact, due to the pendency of the proceedings initiated against the petitioner since 2016, he has been put through immense mental and financial harassment as it has led to the petitioner being deprived of any promotions even though his juniors have since been promoted. 7. Per contra, learned counsel for the State opposes the present petition and made multi-pronged submissions as to why the present petition ought not to be allowed although most of them were rather generic in nature. 8. Heard learned Counsel for both parties. 7. Per contra, learned counsel for the State opposes the present petition and made multi-pronged submissions as to why the present petition ought not to be allowed although most of them were rather generic in nature. 8. Heard learned Counsel for both parties. For appreciating the rival submissions, this Court finds it appropriate to refer first to the scope of the inherent powers of this Court as postulated under S.482 of the Code of Criminal Procedure. The Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, has succinctly held that; '102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.' 9. Further, the Apex Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 , held that- '7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.' 10. At this juncture, it would also be prudent to visit S. 13 of the Prevention of Corruption Act, 1988, which reads as follows: '13. At this juncture, it would also be prudent to visit S. 13 of the Prevention of Corruption Act, 1988, which reads as follows: '13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.-For the purposes of this section, 'known sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. Explanation.-For the purposes of this section, 'known sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four year] but which may extend to [ten years] and shall also be liable to fine.' 11. The Hon'ble Supreme Court in M. Krishna Reddy v. State Dy. Supdt. of Police, (1992) 4 SCC 45 , laid down the ingredients which must be made out in order to establish a charge as postulated under Section 5(1)(e) of the erstwhile PC Act, which corresponds to Section 13(1)(e) of the present PC Act and has held that: '7. To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. ' 12. Furthermore, the position of law governing the issue as to when a presumption under Section 13(1)(e) of the PC Act arises, was laid down by the Hon'ble Apex Court in Krishnanand v. State of M.P, (1995) 6 SCC 749 wherein it was held that when the excess of the total assets possessed is less than 10% of the total income, it is not right to hold that the assets found in the possession of the person are disproportionate to his known sources of income. As opined by the Hon'ble Supreme Court in B.C. Chaturvedi v. Union of India, (2005) 1 SCC 122 , the 10% principle was evolved by the Court to give a benefit of doubt, due to the inflationary trend in the appreciation of the value of the assets. As opined by the Hon'ble Supreme Court in B.C. Chaturvedi v. Union of India, (2005) 1 SCC 122 , the 10% principle was evolved by the Court to give a benefit of doubt, due to the inflationary trend in the appreciation of the value of the assets. This benefit thereof is deemed to be the maximum benefit that can be accorded. The Hon'ble Supreme Court has, therefore, relied on and upheld this principle on numerous occasions, when the percentage of alleged disproportionate assets was low, the proceedings under the PC Act initiated against the petitioner were held to be liable to be quashed. 13. Section 482 of the Criminal Procedure Code envisages three main circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice, as also held by the Hon'ble Supreme Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 . 14. Given that pursuant to the order of this Court vide order dated 01.02.2021 in CRLMP No.1594 of 2020, the revised alleged disproportionate assets possessed by the present petitioner stands at Rs.1,80,473/- which is less than 10% of his total income of Rs.31,70,057/- (for the period in question), this Court is prima facie of the opinion that permission to continue with this prosecution would be an abuse of the process of the Court. The instant case squarely falls within the scope of illustration (3) as laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal (supra), whereby the allegations made in the FIR and the evidence collected in support of the same do not make out a case against the accused, especially in view of the position of law as discussed hereinabove. It is also to be noted that no facts or circumstances with respect to abetment attracting the applicability of Section 109 IPC have also been brought to the notice of the Court. Therefore, in the given factual background, Section 109 IPC also has no application. 15. Considering the aforesaid discussion, submissions made and keeping in view the facts and circumstances of the case at hand, this Court is inclined to entertain the instant petition. Therefore, in the given factual background, Section 109 IPC also has no application. 15. Considering the aforesaid discussion, submissions made and keeping in view the facts and circumstances of the case at hand, this Court is inclined to entertain the instant petition. Accordingly, this Court exercising its inherent power under Section 482 of Cr.P.C. allows this petition and quashes the proceeding in GR (V) Case No.33/2016(v) arising out of Berhampur Vigilance P.S. Case No.45 of 2016 pending in the Court of the learned Special Judge Vigilance, Berhampur and all proceedings emanating therefrom. 16. The CRLMC is accordingly disposed of.