The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2476 of 2024 (An application under Setion-482 of Cr.P.C.) Amaresh Prasad Mohapatra State Of Odisha (Vig.) -versus- ..... ..... Petitioner Opposite Party For Petitioner … Mr. Prateik Parija, Advocate. For Opposite Party … Mr. N. Moharana, A.S.C. for Vigilance Department. ---------------- PRESENT: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Date of hearing : 09.07.2024 : Date of judgment : 23.08.2024 A.K. Mohapatra, J. The instant application has been filed by invoking the inherent power of this Court saved under Section 482 of Cr.P.C. to quash the order of cognizance dated 16.07.2012. By virtue of interim order passed by the learned Special Judge (Vigilance), Cuttack has taken cognizance for commission of an offence under Section 13(2) read with CRLMC No.2476 of 2004 Page 1 of 15. 13(1)(d) of the P.C. Act, 1988 and Sections 419/420/120-B of
Facts
the I.P.C. in T.R. No.22/2012, arising out of Cuttack Vigilance P.S. Case No.28/2008. The Petitioner has also prayed for quashing the entire criminal proceeding in the above noted T.R.
Legal Reasoning
case on the ground that no prima facie case is made out against the Petitioner on a plain and simple reading of the F.I.R. lodged in the present cases. 2. The prosecution story, in gist, is that on 30.06.2008, the D.S.P., Vigilance Cell, Cuttack lodged an F.I.R., inter alia, alleging that while conducting the Joint Entrance Examination (J.E.E.) 2007, two outsiders impersonating the genuine candidates, namely, Manas Ranjan Kandar and Amaresh Prasad Mohapatra (the Petitioner), were allowed to appear in the examination at the designated Examination Centre by the Invigilators, namely, Ashok Kumar Baral, Amulya Kumar Das and Hara Prasad Sahoo. The centre for the examination was fixed at Revenshaw University, Cuttack. As such it has been alleged that undue favour has been shown to the above noted candidates by the above named Invigilators by aiding them to CRLMC No.2476 of 2004 Page 2 of 15. secure higher marks at the entrance test with an intention to help the candidates to get higher marks and, as such, to get favourable position in the merit list. It has also been alleged that in the said entrance test, by adopting some fraudulent means, the accused namely, Manas Ranjan Kandar managed to secure 298 Rank and the present Petitioner has secured 847 Rank in the State Merit List of J.E.E. 2007 which was prepared for taking admission into the Medical Colleges in the State of Odisha. Thereafter, the accused Manas Ranjan Kandar has taken admission in V.S.S. Medical College, Burla. So far the present Petitioner is concerned, it is stated that though he was eligible, but he had not taken any admission in any college. It has also been alleged that although it is the duty of the Invigilators/Supervisors/Superintendent to verify the details of appearing candidates and to allow them to appear in the examination only after establishing their identity. However, the Invigilators, who were engaged in the examination duty have failed to adhere to the guidelines and, accordingly, they have allowed unknown persons to write the examination in place of CRLMC No.2476 of 2004 Page 3 of 15. the genuine candidates. Consequently, the present F.I.R. has been lodged alleging commission of offence under Section 13(2) read with 13(1)(d) of the P.C. Act, 1988 and Sections 419/420/120-B of the I.P.C. 3. On the basis of the aforesaid F.I.R., an investigation was conducted by the I.O. and final charge sheet was filed on 27.02.2012 against the above named five accused persons including the present Petitioner. Thereafter, the learned Special Judge, Vigilance, Cuttack on 16.07.2012 took cognizance of the offences as has been alleged in the F.I.R. implicating the present Petitioner. Being aggrieved by such order of taking cognizance of offences, the present Petitioner has approached this Court by filing the present application with an additional prayer to quash the entire criminal proceeding. 4. I have already heard Mr. Prateik Parija, learned counsel for the Petitioner and Mr. N. Moharana, learned Additional Standing Counsel appearing for the Vigilance Department. Perused the records as well as the written instruction to the learned Additional Standing Counsel appearing for the CRLMC No.2476 of 2004 Page 4 of 15. Vigilance Department, which was brought on record in course of hearing. 5. Mr. Prateik Parija, learned counsel appearing for the Petitioner, at the outset, contended that on a plain reading of the allegations made in the F.I.R. no prima facie case is made out against the Petitioner. Therefore, he further contended that the trial court has taken cognizance of the alleged offences hastily and without application of the judicial mind. He further contended that the order taking cognizance is bad in law and, as such, the same is unsustainable on the following grounds:- (i) None of the offence alleged in the F.I.R. is made out against the present Petitioner as the Petitioner is neither a public servant nor has he availed any pecuniary advantage from the alleged act, nor has any loss been caused to the Government. He further contended that since the Petitioner has not taken admission, the question of taking advantage of the alleged irregularities does not arise at all. CRLMC No.2476 of 2004 Page 5 of 15. (ii) The prosecution has failed to give the name of the persons who had allegedly impersonated the Petitioner and, accordingly, appeared in the examination. Furthermore, the investigation reveals that the prosecution witnesses have stated that no ambiguity in the genuineness of the candidates was found during examination and on verification of the details of the appearing candidates. In the said context, he referred to the statement of the witnesses, namely, Satyakam Mishra, Manoj Kumar Dasj and Deelip Kumar Satpathy under Section 161 of Cr.P.C. (iii) Sanction has been accorded against all accused persons except the Petitioner. Therefore, there is no sanction for prosecution against the present Petitioner. (iv) The Petitioner has not been called upon by the prosecution to submit his admitted his admitted signature, nor has he been examined at any point of CRLMC No.2476 of 2004 Page 6 of 15. time during investigation. Thus, it was contended that the entire investigation has been carried out behind the back of the present Petitioner without giving him an opportunity to explain his position. Moreover, the Petitioner has suffered all these years immensely due to pendency of the aforesaid case for last 16 years. 6. Learned counsel for the Petitioner further contended that the Petitioner appeared in J.E.E. 2011 and secured 26 Rank and on the basis of such ranking, he had taken admission in the M.B.B.S. course at the S.C.B. Medical College and Hospital, Cuttack. In the meanwhile, the Petitioner has completed his M.B.B.S. course in the year 2017. Thereafter, he got admission in P.G. Course at the S.C.B. Medical College and Hospital, Cuttack in the year 2018 by securing 16th rank in the Common Entrance Test. Thereafter, the Petitioner has successfully completed his Senior Residentship and now he is in service as Assistant CRLMC No.2476 of 2004 Page 7 of 15. Professor after successful he came out in the examination conducted by the Odisha Public Service Commission. 7. In view of the aforesaid factual position, learned counsel for the Petitioner submitted that the Petitioner had no idea whatsoever about the initiation of the criminal proceeding against him. Furthermore, he was never asked to participate in any investigation in connection with the present case. The Petitioner has never taken advantage of any illegality/irregularity committed/ or attributable to him. On the contrary, the Petitioner was selected in the J.E.E. Examination 2011 and thereafter he has taken admission in M.B.B.S. Course at S.C.B. Medical College, Cuttack. Therefore, there exists no doubt that the Petitioner has been selected and given admission on his own merit. 8. In view of the aforesaid factual position, learned counsel for the Petitioner submitted that no case whatsoever is made out against the present Petitioner on a plain reading of the allegation made in the F.I.R. CRLMC No.2476 of 2004 Page 8 of 15. Therefore, it was contended that the principle laid down by the Hon’ble Supreme Court in State of Haryana and Others v. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, is applicable to the case of the Petitioner and the case of the Petitioner is squarely covered by the principles laid down in the aforesaid judgment. In such view of the matter, learned counsel for the Petitioner submitted that the present criminal proceeding is liable to be quashed and that the further continuance of the proceeding would be an abuse of process of law and the same would be against the interest of justice. 9. Learned Additional Standing Counsel appearing for the Vigilance Department, on the other hand, contended that the court below has not committed any illegality in taking cognizance of the alleged offences on the basis of the F.I.R. and the charge sheet submitted by the I.O. He further contended that the role of the present Petitioner was specifically investigated into by the I.O. in course of his investigation. On completion of investigation and from CRLMC No.2476 of 2004 Page 9 of 15. the charge sheet, it is not disputed that the offences under the P.C. Act and under Sections 419/420 of I.P.C. are not made out against the Petitioner. The aforesaid submission was made on the basis of the instruction provided to the learned Additional Standing Counsel appearing for the Vigilance Department vide letter No.2820/Vig. Cell dated 04.07.2024 issued by the office of the Director, Vigilance, Odisha, Cuttack. A copy of the instruction dated 04.07.2024 is taken on record. 10. On a careful analysis of the factual background of the present case, further on a scrutiny of the records placed before this Court during hearing of the matter, this Court observes that the present Petitioner has not availed any undue advantage, if at all any such undue advantage has accrued in the year 2007. The record further reveals that the Petitioner appeared in the J.E.E. 2011 Examination and on the basis of his merit and rank, he was admitted into M.B.B.S. Course at S.C.B. Medical College and Hospital, Cuttack. Therefore, admittedly the CRLMC No.2476 of 2004 Page 10 of 15. Petitioner has not taken advantage of the alleged wrong committed during the examination process of the year 2007. 11. Additionally, the instruction received from the office of the Director, Vigilance, Odisha, Cuttack vide letter dated 04.07.2024 reveals that the Petitioner was not a public servant and has not taken any advantage pursuant to the alleged act. Similarly, no loss has been caused to the Government at the instance of the present Petitioner. Further, the Petitioner had also not taken admission consequent upon the result of said examination, i.e. O.J.E.E.-2007. It is also admitted in the said instruction that the unauthorized person or the outsider, who allegedly has impersonated the Petitioner, had not been detected during the investigation. 12. The said instruction further reveals that one Manas Ranjan Kandar, by adopting fraudulent means and entering into criminal conspiracy with other co-accused persons and by impersonation, has taken undue and unfair CRLMC No.2476 of 2004 Page 11 of 15. advantage of the illegality committed and, accordingly, got admission at V.S.S. Medical College, Burla. As such, a case is well made out against accused Manas Ranjan Kandar and other named accused persons. Further, the Vigilance Authorities have expressed their apprehension that in the event the proceeding against the present Petitioner is quashed, the other accused persons like Manas Ranjan Kandar and others may take unfair advantage of such quashing. Therefore, in the said instruction, they have stated that the criminal proceeding should not be quashed. 13. On a careful analysis of the materials on record as well as the submissions made by learned counsels appearing for both the sides, this Court is of the considered view that so far the present Petitioner is concerned, he has neither taken undue/unfair advantage of the illegalities committed in the 2007 Examination nor is any prima facie case made out against the present Petitioner. CRLMC No.2476 of 2004 Page 12 of 15. 14. In such view of the matter, this Court is of the view that further continuance of the criminal proceeding against the present Petitioner would be an abuse of process of law. Moreover, considering the fact that the Petitioner has been selected in the examination of the subsequent year 2011 and thereafter he has taken admission in the M.B.B.S. Course at the S.C.B. Medical College and Hospital, Cuttack and on successful completion of his medical education, he has been appointed as an Assistant Professor in a medical college and further taking into consideration the fact that the present case is of the year 2007 and that the proceeding in the matter is still pending even today, i.e. almost after one and a half decades, the further continuance of the proceeding would cause immense injustice to the Petitioner. Resultantly, the proceeding is liable to be quashed as the offences are not made out against the Petitioner and offences under Sections 120-B of I.P.C. cannot stand alone in respect of CRLMC No.2476 of 2004 Page 13 of 15. the Petitioner and there is also inordinate delay in concluding the trial. 15. Taking into consideration all the aforesaid facts as well as the legal position, this Court deems it proper to quash the entire criminal proceeding against the present Petitioner bearing T.R. Case No.22/2012 pending before the learned Special Judge (Vigilance), Cuttack. Accordingly, the proceeding as against the present Petitioner stands quashed. However, it is made clear that the proceeding in respect of other co-accused persons shall continue in accordance with law. 16. Taking into consideration the delay in conclusion of the proceeding, this Court requests the learned Special Judge (Vigilance), Cuttack to make every endeavour to conclude the trial in respect of other co-accused persons as expeditiously as possible, preferably within a period of six months from the date of communication of a copy of this order. CRLMC No.2476 of 2004 Page 14 of 15. 17. With the aforesaid observations and directions, the CRLMC is allowed. ( Aditya Kumar Mohapatra ) Judge Orissa High Court, Cuttack. The 23rd August, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 23-Aug-2024 19:44:34 CRLMC No.2476 of 2004 Page 15 of 15.