The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1949 of 2023 (In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973) Dr. Haraprasad Mishra ……. Petitioner -Versus- State of Odisha (Vigilance) ……. Opposite Party For the Petitioner : Mr. Asok Mohanty, Senior Advocate For the Opp. Parties : Mr. Niranjan Maharana, Additional Standing Counsel, Vigilance Department CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 13.11.2024 : Date of Judgment: 29.01.2025 S.S. Mishra, J. The petitioner, by invoking the inherent jurisdiction of this Court under Section 482 Cr. P.C., has assailed the entire criminal prosecution initiated against him. He had moved an application under Section 239 of the Cr. P.C. seeking discharge from the alleged offences charged against him. Vide impugned order dated 23.03.2023, the application moved by the petitioner has been turned down by the learned Special Judge, Vigilance, Keonjhar. Challenging the said impugned order, the petitioner has approached this Court in the form of the present petition. 2. The precise allegation against the petitioner made by the prosecution is that, the petitioner remained in-charge of the District Ayurvedic Medical Officer (DAMO), Keonjhar for the period from 08.04.2013 to 30.11.2013. During that period, when the petitioner was in-charge, one Dr. Balabhadra Dash has taken the salary of Rs.1,99,754/- despite Dr. Dash was absent from the duty from April, 2013 to June, 2013. Since the petitioner was the Drawing and Disbursing Officer (DDO), who has drawn the salary bill of the accused Dr. Balabhadra Dash without grant of leave or receiving working certificate of the absentee period of March, 2013 to June, 2013 from the Government Ayurvedic Dispensary, Malda salary has been approved. 3. Basing on the aforementioned allegation, the F.I.R. was registered. After investigation, the Vigilance Department, has filed the charge sheet under Section 173 of the Cr. P.C. on 15.11.2017 against the accused persons including the present petitioner for the alleged commission of Page 2 of 21 the offence punishable under Section 13(2) r/w Section 13(1)(c)(d) of the P.C. Act r/w Section 409/120-B of the IPC. 4. In so far as the present petitioner is concerned, after the investigation, the charge sheet was filed, inter alia, recording as under:
Legal Reasoning
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained in Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.” 13. Mr. Mohanty, learned Senior Advocate further contended that the petitioner being the DDO is authorized to grant salary of its employees Page 8 of 21 based on the working certificate received. As stated in the FIR and the Charge Sheet, the petitioner has approved the salary of the accused Dr. Balabhadra Dash based on the working certificate. He further submitted that, the learned Trial Court has taken cognizance of offence U/s. 409 & 120-B of IPC sans sanction U/s. 197 of Cr. P.C. being obtained by the prosecution. The act complained off by the prosecution against the petitioner was an official function, the Vigilance ought to have obtained the sanction under Section 197 of Cr. P.C. for proceedings against the petitioner in this case. However, the learned Trial Court has taken cognizance without there being sanction obtained by the prosecution from the concerned authority. Therefore, the order of cognizance is bad in law. The Hon’ble Apex Court in the case of State of Punjab vs. Labh Singh, reported in (2014) 16 SCC 807 has stated as follows: “Unlike Section 19 of the P.C. Act, the protection under Section 197 of Cr. P.C. is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24/09/2003, the Court could not have taken cognizance in so far as the offences punishable under the Penal Code are concerned.” Page 9 of 21 14. Opposing the prayer made by the petitioner, Mr. Niranjan Mahrana, learned Additional Standing Counsel for the Vigilance Department has contended that the learned trial Court has rightly rejected the application of discharge moved by the petitioner. He submitted that the principal accused Dr. Balabhadra Dash has neither worked nor present from October, 2009 to June, 2013 in the GAD, Malda and was absent for the aforesaid period. However, the petitioner, including other DDOs, being the AMO in the District Ayurvedic Medical Office, Keonjhar i.e., accused persons disbursed the salaries to the tune of Rs.17,65,602/-, even if he has not performed his duty and remained absent unauthorizedly. The petitioner has disbursed the salary and arrear DA bills of the principal accrued for the absent period on the basis of forged bills prepared by the Head Clerk, namely, Paresh Kumar Das of his office. It was further revealed during investigation and verification that the working certificates submitted for the months of April, 2013 to June, 2013 have not been issued by the GAD, Malda and no such entry in respect of the same is available in the register. However, false letter numbers have been put in the said certificates. The investigation further Page 10 of 21 reveals that the bills and working certificates are false. Therefore, the working certificates are fraudulently created at the office of the petitioner with dishonest intention to release the bills in favour of the principal accused within the knowledge of the petitioner. In the statement under Section 161 of the Cr. P.C., the Head Clerk Paresh Kumar Das has stated that “Though he had verbally intimated to the DDOs, including the petitioner about the non-submission of working certificates by Dr. Balabhadra Das, however, the DDOs have verbally told him to release the salary and he (the principal accused) will produce the working certificate later on.” It further fortifies the knowledge, connivance and dishonest intention as well as abuse of official position by the petitioner and other co-accused persons in the alleged crime. Hence, the petitioner is liable to be tried for the charges u/s. 13(1)(d) of the P.C. Act and Sec. 120-B of the IPC along with other accused persons. 15. Mr. Maharana, learned Additional Standing Counsel for the Vigilance further contended that the petitioner is the DDO and it is his onerous duty to verify the bills and is also required to ascertain why Page 11 of 21 there was arrear, prior to releasing the same in favour of the principal accused. The documentary evidences collected during the investigation and the statements of the witnesses clearly reveal that the petitioner and the other accused persons have acted illegally with a dishonest intention and abused their official position in order to facilitate the principal accused to obtain pecuniary advantages of Rs.17,65,602/- and thereby misappropriated the public fund to the tune of that amount. Hence, the petitioner is liable for the offences as above. 16. Mr. Maharana submitted that the law is well settled that the High Court, in exercise of the inherent jurisdiction should not weigh or examine the evidences and conduct a mini trial at a pre-trial stage. The defence of the accused will be examined only during the trial. He relied upon the judgment of the Hon’ble Supreme Court in the cases of Amit Kapoor vs. Ramesh Chander & others, reported in (2012) 9 SCC 460, Charanjit Lamba vs. Commanding Officer, Southern Command & others, reported in (2010) 11 SCC 314 and Padma vs. Hiralal Motilal Desarda & others, reported in (2002) 7 SCC 564 etc. Page 12 of 21 17. I have gone through the entire records placed before me and in the light of the fact scenario of the present case, appreciated the judgments cited by both the parties at the Bar. 18. This Court is alive to the fact that at this stage, the probable defense of the accused need not be taken into consideration. The Court is only required to confine its view on the basis of the material available on record, which form part of the charge sheet. If on the appreciation of the materials collected by the Investigating Agency filed along with the charge sheet, a prima facie case is not made out or the evidence is lacking to substantiate the charge, this Court, while exercising the inherent jurisdiction under Section 482 of the Cr. P.C. is not forbidden under law to exercise its jurisdiction. From the record, it is evident that the only allegation against the petitioner is that he being the Drawing & Disbursing Authority has approved and disbursed the salary of the principal accused Dr. Balabhadra Dash for the period from March, 2013 to June, 2013 without verifying as to whether the principal accused was indeed working during that period or not. Page 13 of 21 19. The investigation itself discloses that the salary was approved and disbursed through the Treasury at the instance of the present petitioner after receiving the working certificate. This may be at best a case of dereliction of duty on the part of the present petitioner. However, unless the mens rea is attached to the conduct associated with the act complained of, no criminal liability can be fastened. If the petitioner had knowledge of the fact that the principal accused has not worked during that period even then he has approved the salary, there may be the mens rea attached to the conduct of the petitioner. The only piece of evidence, which has been placed before the Court in the charge sheet is the statement of one Paresh Kumar Das and Jayanta Kumar Satapathy. The relevant part of their statements recorded under Section 161 of the Cr. P.C. are reproduced hereunder: Question No.7: You say, as a Head Clerk, from December, 2012 till February, 2013, without the Malda Dispensary AMO Sri Balabhadra Dash working certificate, how could you draw the salary? Reply: I brought it to the notice of the then DAMO Laxmi Narayan Satpathy for two months 12/12 and 1/13 and Sri R.N. Giri, DAMO for February, 13 that the AMO, Malda Dispensary Sri Balabhadra Dash was not giving the working certificate and in spite of non-availability of the working certificate of their staff, he said to prepare the salary bill. I was forced to sign on that.” Page 14 of 21 Question No.6: You were in charge of the Head Clerk from 01.05.2012 to 30.11.2012 and after that also you were in charge of the salary bill. You say, without the working certificate, how could you prepare the salary bill of the AMO Sri Balabhadra Dash of Malda Ayurvedic Dispensary from May, 2012 to February, 2013 ? Reply: I brought it to the notice of the DAMO Laxmi Narayan Satpathy orally time and again that the AMO, Malda Ayurvedic Dispensary Sri Balabhadra Dash was not giving the working certificate. But the DAMO Sri L.N. Satpathy told me to prepare the salary bill of Balabhadra Dash and his staff in spite of non-availability of their working certificate. So, finding no way, I prepared their salary bill.” 20. It would be also relevant to reproduce the statement of Prasanna Kumar Deo, the Medical Officer, who conducted the inquiry regarding the absence of the principal accused Dr. Balabhadra Dash from duty: “As regards my above visit to Malda Govt. Ayurvedic Dispensary on 10.12.2013, I prepared a Minutes of my surprise visit duly signed by me along with Dr. Kartik Chandra Mahapatra who had accompanied with me and also the villagers present during my said surprise visit and enquiry. After returning from surprise visit from Malda Govt. Ayurvedic Dispensary I had discussed the unauthorized and long absence of Dr. Balabhadra Dash from Malda Govt. Dispensary with the Director, Ayush, Odisha, Bhubaneswar and according to instruction I had submitted a report to him vide letter No.1231 dtd. 12.12.2013 o/o. D.A.M.O., Keonjhar along with copy of petition of villagers Malda, Keonjhar, statement of Sanatan Mahakud, P.T.S.- cum-Night Watchman of G.A.D. Malda, Keonjhar, statement of Ayurvedic Asst. Dhaneswar Mahakud of G.A.D. Malda, Keonjhar, copy of my visit note to Malda Govt. Ayurvedic Dispensary.” 21. Barring the aforementioned three sets of oral statement under Section 161 Cr.P.C., there is nothing placed on record by the prosecution to substantiate the charge against the petitioner. Page 15 of 21 22. Perusal of the statement of Paresh Das and Jayanta Satapathy those who were working as Senior Clerk and Junior Clerk respectively reveals that the papers for disbursement of the salary for the period from December, 2012 to February, 2013 and for the period from 01.05.2012 to 30.11.2012 was prepared and placed before the respective Drawing & Disbursing Authorities and they have categorically informed that the working certificates are not available for that period, still the Drawing & Disbursing Authority those who are the co-accused with the present petitioner had insisted to disburse the salary even without the working certificate. However, none of the witnesses have whispered anything against the present petitioner, obviously because they were not functioning in the office of the petitioner during April, 2013 to June, 2013. 23. In that case, the knowledge of not having the working certificate was attributed to those accused persons function during the period spanning from December, 2012 to February, 2013 and May, 2012 to November, 2012. However, in the case of the present petitioner, the Investigating Agency has not made any attempt to obtain any kind of Page 16 of 21 oral evidence to establish that the petitioner had prior knowledge that the principal accused had not worked during the period, the petitioner was in charge as DDO. Rather, on the contrary, the prosecution has stated that the petitioner has approved the salary on the basis of the working certificate. The statement of Prasanna Kumar Deo, who conducted the enquiry as reproduced above also reveals that he had visited the Malda Ayurvedic Dispensary on 13.12.2013 and found that the principal accused has not been attending the Dispensary. This report was placed subsequent to his visit. Therefore, the inquiry is also conducted regarding the absent of the principal accused from his duty after June, 2013. Hence, there was no occasion for the petitioner to know that the principal accused had not attended the duty during the period from March, 2013 to June, 2013. On the basis of the aforementioned evidences on record, the petitioner has been set to face the criminal trial. 24. I am convinced that even if the prosecution case is taken at its face value, no case is made out against the petitioner on the basis of the materials which form part of the charge sheet. Page 17 of 21 25. Merely approving and disbursing the salary for the period from March, 2013 to June, 2013 to the tune of Rs.1,99,754/- without there being any material to infer that the petitioner had indeed derived any financial or otherwise advantage from his impugned conduct, no mens rea could be found. There is no material on record to establish that petitioner had prior knowledge that the principal accused has not been attending the duty rather the material produced by the prosecution speaks otherwise. 26. Mens rea is sine qua non for inviting penalty under the provisions of the Prevention of Corruption, Act. Scanning through the evidence forms part of the chargesheet making it abundantly clear that the petitioner has routinely approved for disbursal of salary of main accused without following procedural due diligence in practice. He has only approved the papers put up before him by the junior officers. In the case of present petitioner, none of the junior officers has given statement under section 161 Cr.P.C informing him regarding the absence of prime accused from his duty during the period of March-2013 to June-2013. On the contrary, working certificate was produced along with other apers Page 18 of 21 for approval of the salary. The working certificate according to prosecution found to be forged one, to which the petitioner obviously has no knowledge. The Investigating Officer in case of the other Disbursing Officers (co-accused) had obtained oral statements from the junior officers, those who have stated that the fact of absence of principal accused from duty was informed, despite that the Disbursing Officers asked them to clear the salary, statement of the principal accused. These statements are not directed against the petitioner accused. Hon’ble High Court of Gujarat at Ahmadabad, in the case of, State of Gujrat vs. Himatlal Bhailal Rajgor & ors in R/Criminal Appeal No 310 of 1998, has held as under :- “14. In the case on hand, when mens rea is conspicuously absent, the mere use of any forged or counterfeit currency notes or bank notes cannot attract the provisions of Section 489(B). The essential ingredient of the said offense is that the person who receives the notes has reason to believe that the said notes are forged or counterfeit. The prosecution is required to prove beyond all reasonable doubt that the accused had knowledge or reason to believe that the currency notes they used or possessed were counterfeit or fake. The prosecution has failed to prove this fact. One more significant aspect is also required to be considered. The investigating officer admitted that he did not collect any material or independently verify whether the said dollars were genuine. For the purpose of comparison, he did not receive any independent opinion Page 19 of 21 from the American Reserve Bank or any other authority to compare the said series of dollars or bank notes. Even upon perusing the record, it appears that initially, the said dollars were sent to the FSL for examination. The FSL returned them, raising queries due to the absence of any control sample or contemporary currency notes for comparison, making it unable to opine on the matter. Subsequently, the FSL again opined that the currency notes were forged, but there was no evidence of any comparison with temporary original currency notes or control samples. Even seizing of the said currency notes sample and control sample is also not proved on record not witness is examined for collection and sending the same sample to the FSL and there is no evidence in relation to the chain of custody or the sampling in order to preserve the integrity of the seized materials. There is no evidence except produced by prosecution on record to prove alleged possession of the so called 'counterfeit currencies'. In the present case mens rea is conspicuously absent. Mere approval of salary for period of March 2013- June 2013 in favour of principal accused which was approved by the petitioner and disbursed through the Treasury, could not fasten criminal liability on petitioner in the absence of any evidence of criminal conspiracy. The evidence vis-à- vis the present petitioner does not make out a case against him. Hence, due to the peculiarity of the nature of the allegation against the petitioner and the evidence collected by the police forming part of the charge sheet, I am inclined to allow the petition. However, it is made clear that, I have Page 20 of 21 not expressed any opinion about the merits of the case pertaining to the other accused persons are concerned. 27. Accordingly, the impugned order dated 23.03.2023 passed in V.G.R. Case No 02 of 2015 and the criminal proceeding arising out of Balasore Vigilance Case No.57 of 2014 pending in the court of learned Special Judge (Vigilance), Keonjhar is set aside and the CRLMC is
Arguments
“06. Dr. Haraprasad Mishra, (Retd.) was working as ADMO, Keonjhar and was also drawing and disbursing authority of the said office for the period 08.04.2013 to 30.11.2013. Sri Paresh Kumar Das was the working as Head Clerk of the said office from 30.11.2012 to 13.01.2015. The then HC Sri Das had prepared the pay bill for the month of March- 2013 to June-2013 and the then DDO Dr. Mishra was drawn up the salary bill without grant of leaves or receiving working certificate of the absent period of March-2013 to June-2013 at GAD, Malada. The following table showing the month, amount drawn and Bill No. with date of salary in favour of Dr. B.B. Dash of his absent period: Sl. No. For month the 01 March- 2013 Amount drawn for salary 48,835/- 08 02 April-2013 48,835/- 19 03 May-2013 51,042/- 41 04 June-2013 51,042/- 59 05 Arrear DA from 01/13 to 04/13 8,828/- 78 Bill No. with date dtd. 23.04.2013 dtd. 03.05.2013 dtd. 03.06.2013 dtd. 28.06.2013 dtd. 22.07.2013 Bill Register Page No. 45 Books of Drawal Page No. 43 Date passed Treasury of at 29.04.2013 of Date credit of amount in a/c 29.04.2013 46 48 50 52 44 48 50 53 09.05.2013 10.05.2013 07.06.2013 07.06.2013 02.07.2013 03.07.2013 24.07.2013 27.07.2012 On verification of the Books of Drawal it is found that all the above bills to District Treasury, Keonjhar (T) Peon S. Mahakud for passed at District Treasury, Keonjhar. Page 3 of 21 Hence, both Dr. H. Mishra Ex-DDO, Keonjhar and Sri Paresh Kumar Das Head Clerk are liable for paying salary of Rs.2,08,582/- for the absent period from 08.04.2013 to 30.11.2013.” 5. Similar allegations were made against one Dr. Nirmal Chandra Mishra and Dr. Laxmi Narayan Satapathy for having disbursed the salary to the principal accused Dr. Balabhadra Dash spanning from different periods. But evidence against them collected by the I.O. is quite different from the petitioner. 6. In nutshell, the precise allegation against the present petitioner is that, he has approved and disbursed the salary for the period from March, 2013 to June, 2013 to the principal accused Dr. Balabhadra Dash without verification and without receiving the Working Certificate for that period. It is apparent from the charge sheet that, there is no allegation of any kind of misappropriation or derivation of financial benefit by the present petitioner. 7. The allegation simplicitor is regarding the dereliction in the official duty assigned to the present petitioner by not verifying the fact that the principal accused has indeed worked during the period from March, 2013 to June, 2013 or not. The petitioner being the Drawing and Page 4 of 21 Disbursing Authority appears to have granted and approved the salary for that period without there being any working certificate, which is mandatory in such cases. 8. The petitioner moved a detailed application before the Court below under Section 239 of the Cr. P.C. seeking discharge, as according to him even if the allegation in the charge sheet is taken at its face value, no case is made out against him. He has urged many points. One of such points, which is relevant is reproduced below: “15. That, during the investigation the accused has categorically stated before the I.O. that as per Govt. guideline the salary of the staff of govt. ayurvedic dispensary is drawn up after receipt of working certificate from the concerned dispensary which is submitted 25th of each month. As most of the dispensary of Keonjhar district are located in rural areas, there was postal delay in receipt of working certificates from some dispensary. In order to avoid difficulty salary bills of the dispensaries were prepared even it non receipt of working certificate during the said month and the concerned dispensary was informed over telephone to submit the working certificates immediately. If the I/C of the dispensary was not submitting working certificate in any month, the salary of the staff for the next month was being stopped and further follow up action was being taken against the concerned medical officer. 16. That, I had received working certificates from Dr. Balabhadra Dash, DAMO, GAD, Malda during the period from 03/2013 to 06/2013 and accordingly his salary was drawn up during the said period. No report was received by me either from the villagers of Malada or from the staff of the dispensary regarding his absence during the said period. I had also not visited the said dispensary during my tenure from 08.04.2013 till 06/2013 and after that he Page 5 of 21 remained absent from duty submitting leave application time to time and he was not paid during the said period.” 9. The learned trial Court, vide impugned order has rejected the prayer of the petitioner for discharge, inter alia, observing as under: “During inquiry it is established that during the period of absent of Dr. Balabhadra Dash from 11/2009 to 6/2010, 08/2010 to 06/2013 received gross salary of Rs.17,38,214/- though he was absent in his duty post without grant of leave. Out of said amount Dr. Nirmal Chandra Mishra had drawn up salary amount Rs.2,00,010/- for the period from 01/2010 to 06/2010, Dr. Laxminarayan Satpathy had drawn up Rs.12,33,615/- for the period from 11/2009 to 12/2009, 08/2010 to 01/2013. Dr. Raghunath Giri Ex-DAMO Mayurbhanj who was in charge of the DAMO Keonjhar has drawn up salary of Rs.48,835/- for February 2013 Dr. Haraprasad Mishra Ex DAMO Keonjhar had drawn salary of Rs.1,99,754/- for March, 2013 to June, 2013, Sri Narayan Mallik Ex-Head Clerk (Retired) Sri Jayanta Kumar Satpathy, Jr. Clerk-cum-Typist and Sri Paresh Chandra Das, Head Clerk all office of the DAMO Keonjhar assisted the above DDOs in preparing the salary bills of Dr. Dash Ex-AMO GAD Malda Keonjhar during his period of absence from 11/2009 to 06/2010, 08/2010 to 06/2013 as a result of which Dr. Dash Ex-AMO GAD towards his salary without Malda received Rs.17,38,214/- performing any duty and remaining unauthorized absence causing loss to the Govt. Exchequer for which they all are liable for offence punishable u/s 13(2) r/w 13(1)(c)(d) of P.C. Act, 1988/409/120-B of I.P.C. On perusal of the record it is found that the present accused petitioner was working as ADMO Keonjhar and was also drawing and disbursing authority of the said office for the period 08.04.2013 to 30.11.2013 and during that period he drawn the salary bill of accused Dr. Balabhadra Das without grant of leave or receiving working certificate of the absentee period of March 2013 to June 2013 at GAD Malda.” Page 6 of 21 10. Feeling aggrieved by the impugned rejection order dated 23.03.2023, the petitioner has approached this Court by filing this petition. 11. Heard Mr. Asok Mohanty, learned Senior Advocate for the petitioner and Mr. Niranjan, learned Additional Standing Counsel for the opposite party-Vigilance Department. 12. Mr. Mohanty, learned Senior Advocate has contended that the allegation that the petitioner ought to have verified grant of working certificate cannot stand the scrutiny of law, as the petitioner neither the Officer in-charge of granting the Working Certificate nor he is responsible for maintaining the Issue Register of GAD, Malda Duty of the petitioner as Drawing & Disbursing Officer is confined merely to disburse the salary based on the working certificate received. Therefore, the investigation does not prima facie makes out a case against the petitioner and the learned trial Court has failed to consider this aspect of the matter. He further contended that, there is no iota of evidence brought on record to establish the nexus that the present petitioner and the other Drawing & Disbursing Officers have acted in cohersion with the principal accused and caused deliberate loss to the State Exchequer. Page 7 of 21 The petitioner has followed his official duty and disbursed the salary in accordance with the working certificate received which in no manner lead to any conclusion beyond the reasonable doubt that the act of the petitioner was done to cause loss to the public exchequer. To support his contention, he has relied upon the Judgment of the Hon’ble Supreme Court in the case of Union of India vs. Prafulla Kumar Samal and another, reported in 1979 (3) SCC 4. He has pointed out the following passage from the aforementioned judgment, which reads as under: “Thus, on a consideration of the authorities mentioned above, the following principles emerge:
Decision
accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 29th January, 2025/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 31-Jan-2025 17:30:21 Page 21 of 21