The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.257 of 2022 (In the matter of an application under Section 401 r/w Section 397 of the Code of Criminal Procedure, 1973) Tapas Kumar Sarangi ……. Petitioner -Versus- State of Odisha (Vigilance) ……. Opposite Party For the Petitioner : Mr. Uma Charan Mishra, Advocate For the Opp. Party : Mr. Sangram Das Standing Counsel (Vigilance Department) CORAM:
Legal Reasoning
“3. Learned Standing Counsel (Vigilance) is directed to examine the records under which the decision was taken to allot shop-rooms to the allottees and find out the specific role of the Petitioner in the decision making process, and accordingly file a report in this Court indicating the role played by the petitioner.” 6. Pursuant to the aforementioned order, the status report dated 01.08.2024 has been filed, inter alia, stating as under: “The investigation of the case revealed that during the incumbency of Sri Bishnu Charan Sahoo, Ex-Sarpanch of Paradeepgarh G.P had constructed total 16 nos. of shop room at Biju Pattanaik Market Complex, Paradeepgarh from MLA LAD fund of year 2003-04. There was no Guideline for distribution of Shop room constructed under MLA LAD etc. in year 2005, i.e. at the time of distribution of 16 nos. of shop houses in Biju Pattanaik Market Complex and the accused person noted in Col. 13 were not working as such during the period. Thereafter, construction of 46 nos. of shop room were taken up at Paradeepgarh in the same campus of Biju Pattanaik Market Complex, by Kujang Block under PURA Scheme (Provision of Urban Amenities in Rural Areas) Page 4 of 9 Scheme of year 2006-07 which was completed in year 2010-11 during incumbency of Sri Rajkishore Panda, OAS, BDO, Kujang Block. Smt. Sasmita Behera was working as Sarpanch, Paradeepgarh G.P. during that period.” 7. Mr. Mishra, learned counsel for the petitioner submitted that even if the entire case of the prosecution is accepted at its face, no case is made out against the petitioner. He further contended that, perusal of the charge sheet as well as the status report reveals that the petitioner has only participated in the meeting convened by his superior officer i.e. the B.D.O. Neither he derived any advantage from the allotment process nor any of his kith and kin have been allotted any shop room. There is no pecuniary loss caused to the exchequer. Mr. Mishra further submitted that neither any beneficiary of the Scheme nor any person, who is aggrieved by not getting the shop room, has come forward to complaint. Rather, an individual who has nothing to do with the entire transaction being a practicing advocate has filed the complaint on the basis of which the entire criminal law has been set in motion against him. Page 5 of 9 8. Mr. Das, learned Standing Counsel for the Vigilance, on the other hand, has vehemently opposed the prayer made by the learned counsel for the petitioner on the ground that the factual dispute is writ large in the present case, needs to be thrashed out in the trial alone. At this stage, this Court, while deciding as to whether the charge against the petitioner is made out or not, need not venture into the factual dispute by appreciating the statement of the witnesses recorded under Section 161 of the Cr. P.C. 9. I have carefully gone through the entire record and considered the submissions made by the learned counsels for the respective parties. It is evident from the record that, even if the allegation of the prosecution is admitted at its face value, no offence as such is made out against the present petitioner. The petitioner is one of the members of the committee constituted by the BDO. No benefit has been derived by the petitioner from the entire process and no financial irregularity has been imputed against him. 10. Perusal of the charge sheet reveals that it is the kith and kin of the Ex-Sarpanch/Ex-Panchayat Samiti members have been allotted the shop Page 6 of 9 rooms. In absence of any specific allegation against the petitioner regarding any financial misappropriation or the benefit derived from the entire transaction, mere participation in the meeting convened by the BDO will not attract the mens rea. Save and except the allegation that he was present in the meeting, no other allegation has been attributed to the petitioner. 11. Mr. Mishra, to buttress his argument has relied upon the judgment of this Court in the case of Aswini Kumar Choudhury vs. State of Odisha (Vigilance Deptt.), reported in (2019) 04 OHC CK 0030 by emphasizing the following paragraph: “10. …… Whenever such allegation of conspiracy is made, it is for the prosecution to show the nature of the agreement and the unlawful object set forth for being achieved and then with regard to the achievement of the same, either in whole or in part remaining on the midway for being so detected, as the case may be; furthermore, indicating as to when, where and in what manner such agreement or understanding was arrived at.” Mr. Mishra, learned counsel submits that for the purpose of bringing home the charge under Section 120-B of the IPC, specific allegation needs to be made in the F.I.R. and the charge sheet. There is no evidence brought on the record by the prosecution regarding the Page 7 of 9 meeting of mind preceding the crime. The petitioner being a subordinate officer, under the command of his superior has participated in the meeting. The committee has decided to allot the shops by violating the guideline. In the absence of any material forming part of the chargesheet barring a solitary bald statement that the present petitioner has participated in the meeting, it would not be possible for the prosecution to bring home any charge against the petitioner. Going by the well settled principle of criminal law, the onus lies on the prosecution to prove the charge against the accused beyond all reasonable doubt, from the nature of materials available on record the prosecution definitely cannot establish the case against the petitioner and secure conviction. Hence, on the basis of the material available on record, subjecting the petitioner to the rigors of trial is destined to be a futile exercise and would serve no purpose. In these fact scenario of the case, the judgment of Hon’ble Supreme Court in the cases of Gian Singh v. State of Punjab and another, reported in 2012 (10) SCC 303; B.S. Joshi & others v. State of Haryana & another, reported in (2003) 4 SCC 675 and Madhavrao Jiwaji Rao Page 8 of 9 Scindia & another v. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 are well applicable and hence the present matter deserves merit. Accordingly, the petition is allowed and as a sequitur the charge sheet qua the present petition is quashed.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 03.01.2025 : Date of Judgment: 29.01.2025 S.S. Mishra, J. The petitioner is aggrieved by the order dated 05.04.2022 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.30 of 2017, whereby his application for discharge has been turned down. 2. The petitioner is one of the accused in the F.I.R. in connection with Cuttack Vigilance P.S. Case No.35 of 2014 registered for the alleged commission of the offences punishable under Sections 13(2) r/w Section 13(1)(d) of the P.C. Act and Section 120-B of the IPC. 3. After the investigation, the charge sheet has been filed for the alleged commission of the offences punishable under Sections 13(2) r/w Section 13(1)(d) of the P.C. Act and Section 120-B of the IPC. 4. The allegation against the petitioner is that, when the accused was working as Welfare Extension Officer in Kujang Block, District- Jagatsinghpur, he attended a committee constituted by the BDO, Kujang Block for holding a lottery to distribute 46 nos. of shop rooms constructed at Paradeepgarh under the Provision of Urban Amenities in Rural Areas (PURA Scheme) on 07.12.2012. Out of 71 valid applications, it is alleged that, one Amulya Mohanty, husband of Smt. Sarojini Mohanty, Panchayat Samiti Member-cum-lottery committee member, was allotted Room No.14. Similarly, one Sanjay Kumar Behera, husband of Smt. Sasmita Behera, Sarpanch of Paradeepgarh Grama Panchayat-cum-lottery committee member was allotted Room Page 2 of 9 No.15 and Smt. Kamala Behera, mother-in-law of Smt. Sasmita Behera was allotted Room No.30. It is further alleged in the charge sheet that, as per the stipulated guidelines, first priority should have been given to the applicants belonging to the SC/ST community and SHG, but such criteria was overlooked by the committee members with ulterior motive to give benefit to their own people. It is also alleged that a joint enquiry committee constituted by the DRDA, conducted an enquiry into the matter and observed that the selection committee should have been constituted in a transparent manner, a senior officer should have been the Chairperson of the committee in place of the BDO, Kujang, the family members of the applicants should not have been taken as lottery team members, the BDO, Kujang has not followed the proper procedure to select the beneficiaries and the committee showed favoritism to some of its members by allotment of shop rooms to their kith and kin. Thus, the selection procedure appeared to be improper. Hence, the F.I.R. 5. The petitioner moved an application under Section 239 of the Cr.P.C. seeking discharge from the case. The said application was turned down by the impugned order dated 05.04.2022. When the matter was Page 3 of 9 taken up for hearing by this Court on 14.07.2022, the following order was passed:
Decision
12. Accordingly, the CRLREV is allowed and disposed of. The High Court of Orissa, Cuttack The 29th January,2025/Subhasis Mohanty, Personal Assistant …………………. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 31-Jan-2025 19:29:08 Page 9 of 9