The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 667 of 2023 Application under Section 482 of the Code of Criminal Procedure, 1973. Bharat Bhusan Jagadev -Versus- --------------- ...… Petitioner State of Odisha (Vig.) ...… Opp.Party Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Bishnu Prasad Pradhan & B.R. Sahu, Advocate.
Legal Reasoning
For Opp. Party : Mr. Niranjan Maharana, Standing Counsel for Vigilance. _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA
Decision
ORDER 29th August, 2023 SASHIKANTA MISHRA, J. The petitioner is facing trial in T.R. No. 28/08 of 2012/2008 in the Court of learned the learned Special Judge, Special Court, Bhubaneswar under Sections 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 and Sections 109/120-B of the IPC and in the present application filed under Section 482 of Cr.P.C., he Page 1 of 6 seeks to challenge the order dated 13.01.2023 passed by the Court below in rejecting his application for discharge. 2. The petitioner had earlier approached this Court in W.P.(C) No. 803 of 2004 challenging the proceedings on the ground that the informant could not have been the Investigating Officer of the case. A Coordinate Bench of this Court accepted such contention and granted liberty to the petitioner to move appropriate application before the S.P. Vigilance, Bhubaneswar, who was directed to conduct an enquiry and to pass necessary orders. Subsequently, the petitioner filed an application for discharge, which came to be rejected by order dated 18.10.2017 passed by the Court below. The petitioner challenged the said rejection before this Court in CRLMC No. 3313 of 2017. By order dated 14.03.2018 a Coordinate Bench of this Court found that the issue relating to propriety of the informant acting as the Investigating Officer had not been specifically dealt with by the Court below. Accordingly by order dated 14.03.2018, the matter was remitted to the Court below for disposal of the discharge petition afresh. Pursuant to Page 2 of 6 such order, the discharge petition was heard afresh. By order dated 13.01.2023, which is impugned in the present application, the same was rejected. 3. Heard Mr. B.P. Pradhan, learned counsel for the petitioner and Mr. N. Maharana, learned Standing Counsel for Vigilance Department. 4. Mr. B.P. Pradhan, learned counsel appearing for the petitioner submits that the discharge petition filed by the petitioner contains several other grounds on merits of the case which were not considered by the trial Court. 5. Mr. N. Maharana, Learned Standing Counsel for the Vigilance Department submits that this Court had remitted the matter specifically for determining the question of propriety of the informant acting as the Investigating Officer. The Court below after taking note of the settled position of law passed a reasoned order and therefore, no interference is warranted. 6. In course of hearing, it is forcefully argued by Mr. Pradhan that several properties, which were included in the earlier cases registered against the petitioner have been included in the present case only to enhance the Page 3 of 6 percentage of disproportionate assets. Mr. Maharana has strongly disputed such contention by placing a comparative chart before this Court. A perusal of the discharge petition, copy of which is enclosed as Annexure- 4 to the petition reveals that the petitioner raised a specific plea relating to inclusion of properties already included in the previous D.A. cases giving details thereof under paragraph-11 of his petition. 7. In the impugned order, the Court below has only considered the question of propriety of the informant being the Investigating Officer and has simply stated that the question relating to missing or addition in connection with assets, income and expenditure of the accused and his family members has to be explained by the accused in course of trial rebutting the prosecution case. 8. It is true that at the stage of framing of charge/discharge, the Court is not expected to make a deep or roving enquiry to find out whether the case would end in conviction or not but then if the very basis of the prosecution case against the accused of acquiring disproportionate assets appears to be based on Page 4 of 6 arithmetically incorrect premises, it is certainly open to the Court to interfere. To such extent therefore, this Court is of the considered view that the Court below should have taken pain to ascertain whether the calculation of D.A. against the petitioner as per the charge sheet has been prima facie correctly made. The Court below should therefore, consider this aspect again. 9. Another significant aspect that has attracted attention of this Court is the fact that charge sheet is said to have been submitted by the Investigating Officer to the Prosecuting Inspector (PI) attached to the Court on 19.01.2007 but surprisingly the same was filed in the Court on 17.03.2008, which is after a gap of nearly one year and two months. Mr. Maharana has contended that though there is delay, yet no malafides can be attributed to the Department in this regard. Be that as it may, to ensure that a fair and transparent procedure was followed in the case, it is imperative for the Court to be subjectively satisfied of the same. 10. The CRLMC is therefore, allowed. The impugned order is set aside. The Court below is directed to firstly, Page 5 of 6 cause an enquiry as to why there was such inordinate delay in submission of the charge sheet before the Court even though the same is said to have been submitted by the I.O. to the P.I. on 19.01.2007 and pass orders in accordance with law. Secondly, the Court below shall consider the contentions raised by the petitioner-accused with regard to purported addition of his assets in the previous cases lodged against him and pass orders accordingly. Since this is a case of the year 2003, the Court below shall do well to dispose of the discharge application not later than two months from today. 11. It is further made clear that in view of the settled position of law as laid down by the Apex Court in the case of Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120 the question of propriety of the informant being the I.O. need not be gone into again. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 29th August, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 29-Aug-2023 19:37:21 Page 6 of 6