The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.303 of 2019 Brundaban Das Azad … Petitioner Mr. S. Mohanty, Advocate -versus- State of Odisha and others … Opposite Parties Mr. N. Moharana, ASC (Vigilance) Order No. 11. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 14.08.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2.
Legal Reasoning
Heard Mr. Shivsankar Mohanty, learned counsel for the petitioner and Mr.Niranjan Moharana, learned ASC for Vigilance Department and perused the record. 3. The sole grievance of the petitioner is for a direction to OP No.6 SP (CBI) to investigate the matter considering all relevant aspects and factors in the light of petitioner’s complaint dated 10.03.2018. 4. After having considered the rival submissions upon perusal of record, there appears no dispute that the present petitioner had made a complaint against Mr. Jyotiranjan Samantaray, Ex-IIC, GRP, Cuttack alleging therein for secret disposal of 16 packets of Ganja seized on 07.05.2017 from General Compartment of DM East Coast, Hyderabad-Howrah Express at Plat Form No.1 in the Cuttack Railway Station causing misappropriation of the State Govt. Exchequer. In the aforesaid backdrop, it Page 1 of 5 is not known as to under what capacity the petitioner has filed the aforesaid complaint before OP No.2, the D.G. of Police-cum-Director Vigilance. However, on publication of news article in daily newspaper “The Sambad” relating to this case with allegation offering bribe of Rs.30,000/- to a Constable, the matter was enquired into by SDRPO, Cuttack Zone who submitted his report to SP, Railway Police, Cuttack and in such report, he found no tangible information with regard to offering of bribe of Rs.30,000/-. 5. Admittedly, the averments of the CRLMP together with documents filed by the petitioner relates to grievance of the petitioner about negligence/ excesses committed by the then IIC, GRP, Cuttack, but undisputedly the petitioner had not approached any Police Station with a written complaint disclosing commission of cognizable offence, rather he has approached the authority for taking administrative action against the erring official, however, the prayer of the petitioner in this CRLMP is for handing over the investigation to CBI and that too, without any FIR being lodged by him. Time and again, the Apex Court in a plethora of decisions has made it very clear that the power to direct a investigation by CBI must be used sparingly and only in exceptional circumstance, the same should be exercised, however, the extra ordinary power should not be exercised merely on the asking of a person or the complainant. True it is that, an aggrieved Page 2 of 5 person can only claim that the offence he alleges to be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. 6. In this case, the petitioner alleges against the Ex.-IIC, GRP, Cuttack for matters relating to negligence in duty by allowing the transportation of Contraband during duty hour and offering bribe to a Constable, which is punishable under Prevention of Corruption Act, but law is very clear that before proceeding with the investigation in the case of corruption against the proposed accused public official, the sanction/approval is required. Further, to entertain a complaint of complainant against the public servant for charges of corruption, sanction is required in terms of Prevention of Corruption Act, 1988 as held by Apex Court in Anil Kumar and others Vrs. M.K.Aiyappa and another; (2013) 10 SCC 705 wherein in a somehow similar matter where the private complainant has made an application before the concerned Court to refer the complaint against the public servant U/S. 156(3) of CrPC, it was held by the Apex Court that once it is noticed that there was no previous sanction, the Magistrate cannot order investigation against a public servant while invoking powers U/S. 156(3) of CrPC. In laying down the above legal principle, the Apex Court has reiterated what has been spelt out in State of Uttar Pradesh vrs. Paras Nath Singh; (2009) 6 SCC 372 Page 3 of 5 and Subramanian Swamy vrs. Manmohan Singh and another; (2012) 3 SCC 64. 7. Looking at the allegation on face of it, had the petitioner been aggrieved, he could have approached the Court of first instance for institution of complaint, but neither he had approached any such Court nor had he approached any Officer-in-Charge of a Police Station, rather the complaint referred to in the CRLMP demonstrates negligence in duty/abetting commission of offence against a public official and the petitioner himself encloses report of the higher official proceeding in the enquiry. Further, the counter affidavit filed by the State- OPs (Vigilance Department) discloses that the complaint of the petitioner was forwarded to the Addl. DG of Police for appropriate action and thereby, Vigilance Department did not think it proper to conduct any enquiry on the allegation of the petitioner. 8. In this situation, since the petitioner wants his grievance to be investigated by CBI without approaching any statutory forum, this Court gainfully refers to the paragraph-27 of Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SC 409, wherein the Apex Court has held as under: - “27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). Page 4 of 5 The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.” 9.
Decision
In view of the above facts and discussion made hereinabove and taking into account the law laid down by Apex Court in Anil Kumar (Supra) and Sakiri Vasu(supra), this Court does not consider it proper to interfere in the matter by issuing any direction to the OPs, since the matter was enquired by the authority on administrative side. 10. Accordingly, the CRLMP being devoid of merit stands dismissed. It is, however, open to the petitioner to approach appropriate forum in accordance with law to seek redressal of his grievance. (G. Satapathy) Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Aug-2024 16:29:58 Priyajit Judge Page 5 of 5