The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.44 of 2012 & I.A. No. 59 of 2024 (In the matter of an application Under Sections 378(1) & (2) CrPC). State of Orissa … Petitioner -versus- Bijay Chandra Choudhury … Opposite Party For Petitioner : Mr. S. Das, Standing Counsel(Vigilance) For Opposite Party : Mr. A. Mohanta, Advocate CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:19.02.2025(ORAL) G. Satapathy, J. 1. This application U/Ss. 378(1) & (2) of the CrPC by the State in Vigilance Department seeks for grant of leave to appeal against the judgment dated 30.09.2011 passed by learned Special Judge(Vigilance), Jeypore in G.R. Case No. 45 of 1998(V) acquitting the OP of charges 13(1)(e) of the Prevention of Corruption Act, 1988 (In short “the Act”). Since this application for grant of leave to
Legal Reasoning
appeal was filed with a delay of 78 days as reported by CRLLP No. 44 of 2012 Page 1 of 9 the Stamp Reporter, the Petitioner in addition to the leave petition has filed an application U/S. 5 of the Limitation Act, 1963 in IA No. 59 of 2024 for condonation of delay of the aforesaid period and accordingly, both the special leave petition and IA are
Decision
heard simultaneously and disposed of by this order. 2. Facts in precise are that on the allegation of amassing assets disproportionate to known source of his income, the State Vigilance Department conducted a raid in the residence of the OP on 11.09.1998 after obtaining such warrant from the learned CJM, Ganjam. Finding assets disproportionate to the known source of income of the OP subsequent to the raid, an FIR was registered against the OP for being found to have disproportionate assets and the matter was accordingly investigated in the course of which, the OP was found to have been appointed as L.D. Clerk on 24.05.1973 and subsequently, promoted to the rank of IPO in the industries Department of Government of Orissa on 01.07.1992. CRLLP No. 44 of 2012 Page 2 of 9 After due investigation, the Vigilance Department filed a charge sheet against the OP for amassing assets disproportionate to the known source of his income to the tune of Rs. 9,94,026.82/- for the relevant check period from 01.01.1993 to 11.09.1998 and accordingly, the OP was made to face the trial in the Court of Special Judge, Jeypore in G.R. Case No. 45 of 1998(V) for being charged for commission of offence punishable U/S. 13(1)(e) of the Act for acquiring disproportionate assets. 3. In the course of trial, the prosecution examined altogether 25 witnesses and relied upon documents under Ext. 1 to 44 as against oral evidence of 16 witnesses as well as documentary evidence under Exts. A to N by the defence. The plea of the OP-accused was denial simplicitor and false implication in addition to the plea that relevant figures have been deliberately taken for a shorter period of five years only to implicate him and his entire income and expenditure has not been taken into account. CRLLP No. 44 of 2012 Page 3 of 9 4. After appreciating the evidence on record upon hearing the parties, the learned Special Judge by the impugned judgment acquitted the OP-accused. Being aggrieved, the State in Vigilance Department has preferred this application for grant of special leave. 5. In the course of hearing, Mr.Sangram Das, learned Standing Counsel forcefully submits that although there is a delay of 78 days as reported by the Office, but fact remains that the delay was neither intentional nor deliberate, rather the delay has occasioned because the concerned file was misplaced in the Office and thereby, the Department was prevented by sufficient cause for not preferring the petition in time. On merit, Mr. Das points out that the learned trial Court without any evidence has in fact been swayed away by extending the benefit of Rs. 90,000/- towards agricultural income and Rs. 45,000/- towards drawal of GPF as income which was erroneous and should not have impacted the learned trial Court while recording the judgment of acquittal inasmuch as such fact being not on the basis of any legally admissible evidence, but CRLLP No. 44 of 2012 Page 4 of 9 the impugned judgment passed by the learned trial Court being actuated with perversity needs to be interfered. Accordingly, Mr. Das prays to grant leave to the Department to prefer an appeal by condoning the delay of 78 days. 5.1. On the contrary, Mr.Asuthosh Mohanta, learned counsel for the OP-accused submits that not only the department was guilty of delay of 78 days in preferring the appeal, but also it has not taken any steps for long 12 years in filing any application for condonation of delay and that too, when the matter was listed at the instance of OP-accused and pointed out thereafter, the Department has taken steps to condone the delay, but in fact, the grounds taken in the petition for condonation of delay merits no consideration. In summing up his argument, Mr. Mohanta prays to dismiss the CRLLP by not condoning the delay. 6. After having considered the rival submissions upon perusal of record, since the leave to CRLLP No. 44 of 2012 Page 5 of 9 appeal has been filed with a delay of 78 days as reported by the Office, this Court at the threshold confines itself to the petition for condonation of delay as filed by the Department. It is not in dispute that the Department takes the plea of “missing of file” as the main ground for condonation of delay, but fact remains that when the file was misplaced, was not it the duty of the State to reconstruct the file in time to prefer an appeal because when an appeal against acquittal has been filed with a delay, certain rights accrued in favour of the accused which should not be taken lightly to defeat such right of the accused without knowing its consequence, however, the Court has to adopt a pragmatic approach in dealing with such petition for condonation of delay for grant of special leave to appeal to the Department in a criminal case. 7. It is an admitted fact that the appeal was filed in the year 2012, but the petition for condonation of delay was only filed in the year 2024 which is evident from the application filed by the Department for condonation of delay in IA No. 59 of 2024. True it is CRLLP No. 44 of 2012 Page 6 of 9 that delay may be attributable to missing of file, but when the matter is to be considered in a criminal case prescribing punishment for commission of offence, it should be accordingly, considered balancing the right of the accused who have been found acquitted by the learned Court concerned. Further, delay of 78 days is not a small delay because the right of the accused cannot be ignored which has already been accrued. In the aforesaid backdrop, when the delay of 78 days is considered on the admitted facts of missing of file which is the ground taken by the Vigilance Department, this Court does not find any cogent reason to condone the delay since the ground appears to be not genuine, however, at the same time, this Court also wants to examine the impugned judgment on merit because unless there is some merit in the impugned judgment, the petition for condonation of delay requires no consideration on the mere assertion that the appeal was filed with a delay of some days due to missing of file inasmuch as the aforesaid observation of this Court CRLLP No. 44 of 2012 Page 7 of 9 is only based on the fact that meritorious case should not be thrown at the threshold. 8. While examining the matter on merit, this Court has the privilege to go through the impugned judgment passed by the learned Special Judge recording acquittal of the OP-accused, but the two main grounds which have been taken by the Vigilance Department to challenge the impugned judgment of acquittal are the agricultural income and the drawal of GPF of the OP-accused, however, fact remains that the drawal of GPF by the accused is an admitted fact which cannot be denied and the learned trial Court has rightly taken it towards the income of the accused while computing the disproportionate assets of the accused. At the same time, there is of course no specific evidence available with regard to agricultural income of the accused, but it is a fact that the OP-accused has some landed property which has not been rebutted by the Department and, therefore, by taking into the standard of proof as required in a criminal case, this Court considers that the learned trial Court has rightly CRLLP No. 44 of 2012 Page 8 of 9 taken the agricultural income of the OP-accused in computing the disproportionate assets. This Court, therefore, does not consider any perversity in the impugned judgment. Consequently, the delay as occasioned in this case as well as CRLLP merits no consideration. 9. In the result, the CRLLP stands dismissed on contest, but in the circumstance, there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 19th day of February, 2025/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 20-Feb-2025 18:15:37 CRLLP No. 44 of 2012 Page 9 of 9