Office of the Chief Postmaster General & others v. Living Media Ltd. and another) and
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK An Application U/s.378 of Cr.P.C. CRLLP No. 77 of 2012 ………. State of Orissa (G.A. Department) …..… -versus- Petitioner Jantrana Parikhit & others …. Opp. Parties For Petitioner : Mr. Sangram Das, SC (Vigilance) For Opp.Parties : Mr. N.P.Parija, Advocate for O.P. No. 1 Mr. Bibhudhendra Dash, Advocate for O.P. No.5 ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.S. SAHOO ------------------------------------------------------------------------------------------ Date of hearing & Date of judgment : 13.11.2023 ------------------------------------------------------------------------------------------ M.S.SAHOO, J 1. The petition has been filed seeking, leave under section 378(1) & (3) of Cr.P.C. to appeal, challenging the judgment dated 26.03.2011 passed by the learned Special Judge (Vigilance), Bhubaneswar in TR No. 39 of 2001 arising out of V.G.R. Case No. 36 of 1999 corresponding to Cuttack Vigilance P.S. Case No. 82 of 1996. Misc. Case No. 57 of 2012 2. Misc. Case has been filed for condonation of delay of 322 days in filing of the petition seeking leave. 3. On Perusal of the grounds stated in the petition for condoning the delay, it is indicated that the delay in // 2 // filing has been tried to be explained : “file has to be routed through different Departments which requires considerable time to take a final decision by different departments of the State whether leave application to file appeal against acquittal shall be filed.” 4. In considered opinion of this Court in view of decisions of the Hon’ble Supreme Court in (2012)3 SCC 563 (Office of the Chief Postmaster General & others v. Living Media Ltd. and another) and (2014) 4 SCC 108 (Chennai Metropolitan Water Supply and Sewerage Board and others v. T.T.Murali Babu) such explanation of pushing file through different Departments causing delay is no good ground to condone the delay when statutory period of limitation has been prescribed and valuable right has accrued against the person against whom petition has been filed. 5. The ground of processing of the file taking long time is not a valid ground to condone the delay as the petition does not disclose that there are sufficient ground by which the petitioner was prevented from filing the appeal. Further, each day’s delay has not been explained. The Misc. Case seeking condonation of appeal fails. CRLLP No. 77 of 2012 6. Apart from the reasons indicated in not condoning the delay as above, this Court has occasion to go through the judgment passed by the learned trial court as enclosed to the petition filed by the petitioner. 7. Learned trial court has gone to a great length in dealing with the evidence presented by the prosecution particularly statements of the prosecution witnesses as Page 2 of 15 // 3 // well as documents. Regarding sanction granted by the prosecution against the opposite parties, following finding has been given at p.71-72 of the judgment which reads as thus : is from in operative the approval jurisdiction and “x x x Of course P.W.13 in his cross-examination has stated that he was also the President of Neelamadhab college but he should have accorded sanction for prosecution of Jantrana Parikhit as President of the Neelamadhab College with governing body of Neelamadhab college with approval from the governing body of Sarankul college. As suh the sanction against the accused Jantrana Parikhit is illegal and without (sic inoperative). Similarly accused Balaram Panda was the vice Principal of Neelamadhab college and so P.W.13 being the President of governing body of Neelamadhab college was the competent authority to accord sanction for prosecution against him with the approval from the governing body of Neelamadhab College. But P.W.6 the District has sanctioned prosecution against the vice principal as President of the governing body of Nayagarh college and so the same is illegal and without jurisdiction and is inoperative because as per settled principle of law and as the place of per several occurrence and not the place of subsequent posting on transfer is the place for according sanction.x x x” judicial pronouncements Magistrate-cum-Collector, Nayagarh 8. The aspect of lack of valid sanction has not been
Legal Reasoning
challenged in the present petition seeking leave to appeal. 9.
Legal Reasoning
Learned counsel appearing for O.P. NO.1 Mr. N.P.Parija as well as learned counsel appearing for O.P.No.5 Mr. Das submits that no material has been brought before this Court to show there has been non-consideration of material on record and there is no perversity as far as finding of the Court regarding sanction for prosecution. Page 3 of 15 // 4 // 10. Further the learned trial court has also dealt with the statement of the other prosecution witnesses to return a finding that the opposite parties cannot be held guilty of the alleged occurrence. 11. In Anwar Ali v. State of H.P., (2020) 10 SCC 166 : 2020 SCC OnLine SC 776 (at page 179 of SCC), the law on the appeal against acquittal and the scope and ambit of Section 378 CrPC and the scope of interference by the High Court in an appeal against acquittal was considered by the Hon’ble Supreme Court and it has been held:- 14.1. In Babu [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under: (SCC pp. 196-99) “12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had into consideration admissible evidence and/or had taken into consideration the evidence brought on law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by (Vide Balak Ram v. State of U.P. [Balak Ram v. State of U.P., (1975) 3 SCC 219 : 1974 SCC (Cri) record contrary the appellate failed court. take to to Page 4 of 15 // 5 // (Cri) 377] Singh v. State Singh v. State Pratap v. State , Shambhoo Missir v. State of 837] Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17 : 1990 SCC (Cri) 518] of , Shailendra U.P. [Shailendra Pratap v. State of U.P., (2003) 1 SCC 761 : 2003 SCC (Cri) 432] of , Narendra M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699 : 2004 SCC (Cri) 1893] , Budh of U.P. [Budh Singh v. State of U.P., (2006) 9 SCC 731 : , State of (2006) 3 SCC U.P. v. Ram of U.P. v. Ram Veer Singh, (2007) 13 SCC 102 : (2009) 2 SCC (Cri) 363] , S. Rama Krishna v. S. Rami Reddy [S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535 (Cri) 645] , Arulveluv. State [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] , Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara Reddy v. State of A.P., (2009) 16 SCC 98 : (2010) 2 SCC (Cri) 176] and Ram Singh v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC 445 : (2010) 1 SCC (Cri) 1496] ) (2008) 2 SCC Singh [State Veer : (Underlined to Supply Emphasis) 13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] , the Privy Council observed as under: (SCC Online PC: IA p. 404) to (2) the credibility of presumption ‘… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial the Judge as witnesses; of the innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness in disturbing a of an appellate court Page 5 of 15 // 6 // finding of fact arrived at by a Judge who had the the advantage of seeing witnesses.’ of LJ 481] followed by Singh v. State Agarwal v. State , M.G. Agarwal v. State law has 14. The aforesaid principle of this Court. consistently been (See Tulsiram Kanu v. State [Tulsiram Kanu v. State, 1951 SCC 92 : AIR 1954 SC 1] , Balbir Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 of Cri Maharashtra [M.G. of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [Khedu Mohton v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .) 15. In Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under: (SCC p. 432, para 42) ‘(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. expressions, (3) Various as, “substantial and compelling reasons”, “good “very strong and sufficient grounds”, circumstances”, conclusions”, “distorted “glaring mistakes”, etc. are not intended to such Page 6 of 15 // 7 // curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. in favour of presumption (4) An appellate court, however, must bear in mind that in case of acquittal, there is the double presumption accused. Firstly, of the innocence is available to him under the fundamental criminal principle jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. of If two reasonable conclusions are (5) possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.’ (Underlined to Supply Emphasis) the 16. In Ghurey Lal v. State of U.P. [Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60], this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind the that presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage the demeanour of the witnesses, and was in a better the position witnesses. trial court’s acquittal bolsters the credibility of of watching to evaluate Page 7 of 15 // 8 // 17. In State of Rajasthan v. Naresh [State of Rajasthan v. Naresh, (2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069], the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) ‘20. … An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.’ In State of U.P. v. Banne [State of 18. U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include:(SCC p. 286, para 28) ‘(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court’s conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.’ A similar view has been reiterated by this Court in Dhanapal v. State [Dhanapal v. State, (2009) 10 SCC 401 : (2010) 1 SCC (Cri) 336] . Page 8 of 15 // 9 // the 19. Thus, the law on the issue can be summarised to the effect that in exceptional are cases where compelling there judgment under circumstances, and appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” presumption his of 14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid (Babu decision, which case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC p. 199) reads as under: taking “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding into relevant material or by consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. Kumar Kumar Kindra v. Delhi Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312] , Triveni Rubber & Plastics v. CCE [Triveni & Plastics v. CCE, 1994 Supp (3) SCC 665] , Gaya Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501] , (Vide Rajinder Admn. [Rajinder Din v. Hanuman Rubber (Underlined to Supply Emphasis) Page 9 of 15 // 10 //