The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 2344 of 2024 An application under Section 439 of the Code of Criminal Procedure. -------------- Gouranga Bibhar ..…. Petitioner -versus- State of Odisha …… Opp. Party ----------------------------------------------------------------------------- For Petitioner : Mr. Prashanta Kumar Nayak, Advocate For Opp. Party ----------------------------------------------------------------------------- : Mr. S.S. Mohapatra, A.S.C. CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 31.08.2024 Savitri Ratho, J This is an application under Section 439 of Cr.P.C. filed in connection with Kantabanji P.S. Case No. 245 of 2023 corresponding to G.R. Case No. 374 of 2023 pending in the court of the learned J.M.F.C., Kantabanji for commission of offence punishable under Section 409 of the I.P.C. 2. The earlier application BLAPL No. 10728 of 2023 filed by the petitioner had been dismissed on 30.11.2023 by this Court granting him liberty to move for bail afresh after completion of investigation. BLAPL No. 2344 of 2024 Page 1 of 12 3. Thereafter, the petitioner has moved the learned Court below for bail and the prayer has been rejected by the learned Addl. Sessions Judge, Kantabanji on 31.01.2024. 4.
Facts
The prosecution allegation in brief as per the FIR dated 22.08.2023 lodged by the Executive Officer of NAC, Kantabanji is that while the petitioner who was working as Head Assistant and I/C Cashier of NAC Kantabanji, he misappropriated government funds to the tune of Rs.37,42,339/- and the same is reflected in Local Fund Audit Report for the year 2021-22. When the informant joined, the petitioner was unable to give accounts regarding receipt of money and deposit in the official account, so he removed him from his duty. But he was not handing over charge for which charge was taken from him on 19.11.2022. 5. Charge sheet dated 18.12.2023 has been submitted against the petitioner for commission of offence under Sections 417, 420, 409 of the IPC, keeping the case open for further investigation. 6.
Legal Reasoning
stated hereinafter, we are of the opinion that it is incumbent on the part of the Investigating Officer to strictly comply with the requirements of the said provisions, as noncompliance thereof gives rise to many legal issues in the court of law.” xxxxx “15. The issues with regard to the compliance of Section 173(2) Cr.P.C., may also arise, when the investigating officer submits Police Report only qua some of the persons- accused named in the FIR, keeping open the investigation qua the other persons-accused, or when all the documents as required under Section 173(5) are not submitted. In such a situation, the question that is often posed before the court is whether such a Police Report could be said to have been submitted in compliance with sub-section (2) of Section 173 Cr.P.C. 17. In this regard, it may be noted that in Satya Narain Musadi & Ors. vs. State of Bihar : (1980)3 SCC 152 , this Court has observed that statutory requirement of the report under Section 173(2) would be complied with if various details prescribed therein are included in the report. The report is complete if it is accompanied with all BLAPL No. 2344 of 2024 Page 7 of 12 the documents and statements of witnesses as required by Section 175(5). In Dinesh Dalmia vs. CBI : (2007) SCC 770 , however, it has been held that even if all the documents are not filed, by reason thereof the submission of the chargesheet itself would not be vitiated in law. Such issues often arise when the accused would make his claim for default bail under Section 167(2) of Cr.P.C. and contend that all the documents having not been submitted as required under Section 173(5), or the investigation qua some of the persons having been kept open while submitting Police Report under Section 173(2), the requirements under Section 173(2) could not be said to have been complied with. In this regard, this Court recently held in case of CBI vs. Kapil Wadhwan & Anr. (Criminal Appeal No. 391 of 2024 (@ SLP (Crl) No. 11775 of 2023) that: - “Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.” BLAPL No. 2344 of 2024 Page 8 of 12 16. The above referred discussion has been necessitated for highlighting the significance of the compliance of requirements of the provisions contained in Section 173(2) of Cr.P.C. 17. Ergo, having regard to the provisions contained in Section 173 it is hereby directed that the Report of police officer on the completion of investigation shall contain the following: - i. A report in the form prescribed by the State Government stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (h) Whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)” BLAPL No. 2344 of 2024 Page 9 of 12 ii. If upon the completion of investigation, there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the Police officer in charge shall clearly state in the Report about the compliance of Section 169 Cr.P.C. iii. When the report in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report, all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. iv. In case of further investigation, the Police officer in charge shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and shall also comply with the details mentioned in the above sub para (i) to (iii).” 12. In the present case, it is apparent that on account of seizure of documents during enquiry by the officer of the Vigilance Directorate, the I.O. could not seize all the documents and filed preliminary chargesheet stating that “The investigation of the case is kept open for collection of materials evidence in order to strengthen the prosecution.” Thereafter, during further investigation , the details of register and M.R. Books which are taken charge by the enquiring BLAPL No. 2344 of 2024 Page 10 of 12 officer of the Vigilance Directorate have been collected. But investigation should not be kept open indefinitely. This is neither in the interest of the accused or the prosecution. So the I.O. should take expeditious steps for collecting whatever materials (documents or relevant extracts) the prosecution wants to rely on, and complete the investigation. 13. The amount of public money the petitioner is alleged to have misappropriated, is not a small amount. But after considering the submission of the learned counsel for the petitioner that the petitioner has deposited Rs.5 lakhs in the learned Court below and that once he is released he will account for the misappropriated amount, participate in the disciplinary proceeding and also co-operate with investigation, I am inclined to allow the prayer for bail of the petitioner. 14. The petitioner- Gouranga Bibhar shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter, including the following conditions: (i) He shall not commit any offence while on bail. (ii) He shall not try to influence the witnesses or tamper with evidence while on bail. (iii) He shall co-operate with the investigation and appear before the Investigating Officer as and when required for the purpose of investigation. BLAPL No. 2344 of 2024 Page 11 of 12 (iv) He shall abide with the undertaking given in this Court. (v) He shall appear personally in the trial Court on each date fixed for trial unless his appearance is dispensed with by the learned trial Court. Violation of any condition will entail cancellation of bail/recall of this order. 15. The amount of Rs.5 lakhs deposited on behalf of the petitioner in the court below be kept in fixed deposit till completion of the trial and will be subject to the decision of the learned trial Court. 16.
Arguments
I have heard Mr. P.K. Nayak, learned counsel for the petitioner and Mr. S.S. Mohapatra, learned Additional Standing Counsel and perused the case diary. 7. Mr. Prashanta Kumar Nayak, learned counsel for the petitioner has submitted that on account of COVID-19 pandemic proper account could not be maintained for which it has been shown BLAPL No. 2344 of 2024 Page 2 of 12 in the audit that Rs.49,623,520.46 could not be accounted for by the petitioner. The money had been used for different works of the NAC. In order to show his bonafides, the petitioner after obtaining loan from the SBI had deposited Rs.6,06,400/- with the NAC, and during pendency of the case, his brother has taken a hand loan and Rs.5,00,000/- has been deposited in the Court of the learned J.M.F.C., Kantabanji in connection with this case. He has further submitted that the petitioner is in custody since 23.08.2023 and since he is in custody, he is unable to deposit on account for further amount. He submitted that after he is released on bail, he will participate in the disciplinary proceeding which has been initiated against him and account for the amount which he is alleged to have misappropriated, which he is unable to do so as he is in custody. He will co-operate with further investigation. 8. Mr. S.S. Mohapatra, learned Addl. Standing Counsel for the State has submitted that in view of the huge quantity of money which has been misappropriated by the petitioner and as further investigation is continuing, he does not deserve to be granted bail. 9. Preliminary chargesheet dated 18.12.2023 had been filed in the case against the petitioner under Sections 417, 420, 409 of IPC keeping investigation open against him. A portion from the brief, facts of the case from the chargesheet is extracted below: BLAPL No. 2344 of 2024 Page 3 of 12 “On investigation it is ascertained that, the accused was appointed as Assistant and now he is promoted to the rank of Head clerk. During the incumbency he was the in-charge of establishment section and also the in charge of Cashier of NAC Kantabanji in the period of 2019-20 and 2021 and was handling of cashier Book, Accountant cash Book, daily collection Register, stock Register etc. everyday collection cash of different heads have been made in the N.A.C. Kantabanji for planning approval fee, building cess, development fee, development plan, water tax, tender paper cost, cost of stall paper has been assigned to receive the said amount from the public. The collect amount of Rs.37,42,339/- (Thirty seven lakh Forty two thousand three hundred thirty nine) only has not deposited in the bank account of NAC Kantabanji and misappropriated the said amount. Further during investigation I have sent letter to the E.O. NAC Kantabanji to provide me the copy of appointment letter/ all detail bio data and service particulars of the accuse Gouranga Bibhar but till date the office has not provided the details, in spite of my several reminders. It is also come to light that before registration of this case, one Vigilance enquiry was going on against accuse Gouranga Bibhar. The vigilance department has taken all the documents relating to the misappropriation and cheating made by the accuse Gouranga Bibhar in collection of tax money from the beneficiaries. They have taken the Cashier cash book, Money Receipt Book, Stock Register, Issue register and other documents from the office of NAC Kantabanji. Hence after the collection of those BLAPL No. 2344 of 2024 Page 4 of 12 documents other action will be taken. Received instructions from SP Balangir that, the case will attract Sec. 417, 420 IPC in addition to Sec. 409 IPC. Received orders vide No. 15641/SR Dt. 18.12.2023 from SP Balangir for submission of Charge Sheet U/s 417/420/409 IPC in this case followed with compliance to the instructions imparted in the S. note Under the above fact and circumstances, there is sufficient evidence well made out U/s 417/420/409 IPC against accused Gouranga Bibhar (40) S/o Late Bhaskar Bibhar Vill. Chheliapada, Ward No. 4 P.S. Khariar Dist. Nuapada, I submitted Preliminarily Charge Sheet vide Kantabanji PS.F.F. No. 245 dt. 18.12.2023 U/s. 417/420/409 IPC keeping investigation as open against him to stand his trial in the court of law.” ( emphasis supplied ) 10. Mr. Mohapatra, learned Additional Standing Counsel, pursuant to order of the Court, has produced the instruction dated 29.08.2024 of the IIC, Kantabanji Police Station regarding further investigation in the case. It is stated therein as follows: “With reference to the subject cited above, I am to intimate you that, in the instant case prior to regd. of this case one vigilance enquiry vide Sambalpur Vigilance file enquiry vide File No. 24 dtd. 06.06.2023 has been conducted. The enquiring officer DSP Vigilance Pulasti Chhatria Bolangir unit had taken charge of the original cash Book of NAC Kantabanji for the year 2020-2021, 2021-2022, original Daily Collection Register of NAC Kantabanji for the year 2019-2020, 2020-2021, 2021-2022 and 2022-2023, original BLAPL No. 2344 of 2024 Page 5 of 12 stock register for misc. receive, Original Vending Zone register of NAC Kantabanji, original stock register for misc. receive, Original Vending Zone register of NAC Kantabanji, original tender refund register of NAC Kantabanji, 02 nos of personnel file of the accused Gouranga Bibhar and 07 nos of money receipt of NAC Kantabanji for their verification and enquiry. After verification of enquiry of the above said file a Criminal Case vide Sambalpur Vigilance P.S. Case No. 16 dtd. 09.06.2023 U/s 13(2)/ 13(1)(a) P.C Act/ R.W. Sec. 409 IPC has been initiated against the petitioner regarding misappropriation of govt. money. As the register and the money receipt of the NAC Kantabanji are tagged in the vigilance case for their investigation, hence the same documents could not be obtained. However the details of register and M.R. Books which are taken charge by the enquiring officer are enclosed. There is no other material except the Audit report and statement of witnesses to prove the misappropriation of the money by the accused. The investigation of the case is kept open for collection of materials evidence in order to strengthen the prosecution.” (emphasis supplied) 11. The Supreme Court in the case of Dablu Kujur vrs. The State of Jharkhand : 2024 INSC 197, dismissed the prayer for bail as the trial was at its fag end. But while doing so, dealt exhaustively with the provisions of Section 173 (2) of the Cr.P.C. as well as the related provisions regarding investigation, further investigation and the BLAPL No. 2344 of 2024 Page 6 of 12 materials which should form part of the chargesheet. The paragraphs relevant for the purpose of this bail application are extracted below : “7. The Police Report submitted by the police under Section 173(2) being very important piece of document from the view point of the prosecution, the defence and the court, we deem it necessary to elaborately deal with the various aspects involved in the said provision. For the reasons
Decision
The BLAPL is accordingly disposed of. 17. A Copy of this order be supplied to Mr. S.S. Mohapatra, learned Addl. Standing Counsle for onward transmission to the IIC, Kantabanji Police Station. (Savitri Ratho) Judge Orissa High Court, Cuttack. The 31st August, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Sep-2024 19:56:14 BLAPL No. 2344 of 2024 Page 12 of 12