The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.1362 of 2023 Jayanta Kumar Das … Petitioner Mr. S. Mohanty, Advocate -versus- State of Orissa and others … Opposite Parties Mr. N. Moharana, ASC (Vigilance) Order No. 08. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 02.09.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. In this CRLMP, the petitioner by invoking the jurisdiction of the Court under Article 227 of the Constitution of India has prayed to direct OPNo.3/Director Vigilance, Vigilance Directorate,
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Odisha to register a vigilance case/FIR for the offences attracted under the Prevention of Corruption Act (in short, “PC Act”) and Indian Penal Code (in short, “IPC”) and conduct an investigation into the fraud committed by the OPOLFED Staffs in Agreement (BID Identification No.01/ 158/ OPOLFED/ 2016-17 dated 06.03.2017) and conduct a judicious, fair, transparent and expeditious investigation in a time bound manner. 3. The short facts by which the petitioner seeks for aforesaid direction are that on getting an information under RTI in respect of the copy of the BID Page 1 of 11 Identification No.01/ 158/ OPOLFED/ 2016-17 dated 06.03.2017, which is an agreement between the
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Managing Director, OPOLFED and Mr. Sanjay Mishra, A Class Engineer Contractor from the PIO of the OPOLFED, the petitioner by going minutely through each and every page of the aforesaid agreement had noticed that the Page Nos.157 and 158 were suspected to be replaced/ substituted with modification/ alteration/ forgery by changing the terms and conditions stated in the “Dispute Resolution” in Page No.158 of the aforesaid agreement. Finding the aforesaid suspected fraudulent act of the Staffs/Officers of the OPOLFED, on 13.01.2022, the petitioner made a complaint to OPNo.1 along with all the supporting documents by Speed Post with a request for Crime Brach Investigation into the fraud/forgery committed in the agreement by the Staffs. On 04.04.2022, OPNo.1 accordingly, had forwarded the aforesaid complaint to the Director of Animal Husbandry & Veterinary Services, Odisha to conduct an enquiry and submit a report in the matter. In compliance of the aforesaid direction, OPNo.4 conducted an enquiry and submitted a detailed enquiry report by Letter No.5085 dated 22.04.2022 to OPNo.1 by stating therein that the matter is required for investigation by an investigating agency like police. Basing upon the aforesaid enquiry report, OPNo.1 had written a letter to OPNo.3 with a request to cause an enquiry into the alleged fraud Page 2 of 11 committed by the Staffs of OPOLFED in respect of the agreement as noted above, but OPNo.3 had taken no concrete steps and sat idle over the matter. Against the aforesaid backdrop, the petitioner has approached this Court for the relief indicated in the preceding paragraph. 4. In response to the claim of the petitioner, OPNo.3 has filed its counter affidavit stating inter-alia that pursuant to the directions of the Vigilance Directorate and complaint of the petitioner, an inquiry was conducted into the allegation made by the present petitioner, but the allegations were found to be false in respect of forgery/modification/alteration by changing the terms and conditions stated in the “Dispute Resolution” in Page No.158 of the said agreement and the signature and date appearing in Page Nos.157 and 158 are genuine belonging to MD of OPOLFED namely Dr. Prashanta Kumar Biswal. In such counter affidavit, it is also stated that the complaint lodged by the petitioner is found to be without any cogent evidence and based on suspicion and assumptions and there is no need for taking any action under the PC Act and IPC. 5. In the course of hearing, Mr. Shivsankar Mohanty, learned counsel for the petitioner by drawing attention of the Court to the paragraph-3(III) of the counter affidavit of OPNo.3 submits that the Vigilance Directorate has conducted a preliminary inquiry after receiving the complaint, but in such inquiry, neither the Page 3 of 11 petitioner was heard nor was any opportunity afforded to him by the Inquiry Officer and, therefore, such inquiry report being grossly illegal, a fresh inquiry is required to unveil the truth and, thereby, an order is required from this Court to direct for registration of FIR against the erring officials of the OPOLFED. Mr. Mohanty accordingly prays to direct for registration of FIR against the Staffs of OPOLFED for committing fraud and to take suitable action against them under PC Act and IPC. 6. On the contrary, Mr. N. Moharana, learned ASC appearing for the Vigilance Department submits that although the petitioner has made some complaint, which was enquired into and found to be false, but in the circumstance, no direction is required to be issued to register an FIR against anybody. He further submits that the complaint made by the petitioner is not entertainable in a writ application under Article 227 of the Constitution of India in view of the decisions rendered by the Apex Court in Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SCC 409 and Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and others;(2016) 6 SCC 277. It is also further submitted by Mr. Moharana that since the allegation is levelled against the erring officials for commission of offence under PC Act, the petitioner is required to obtain prior approval of the competent authority before seeking any direction to conduct any Page 4 of 11 investigation against them, in view of the provision of Section 17-A of the PC (Amendment) Act 2018. 7. After having considered the rival submissions upon going through the materials placed on record, since the petitioner prays for a direction to OPNo.3 to register an FIR against the OPOLFED Staffs for commission of offences under PC Act and IPC, it needs to be stated here that Section 17-A of the PC (Amendment) Act 2018 mandates that no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without previous approval of the competent authority, but in this case, no previous approval of competent authority has been obtained in terms of the aforesaid provisions of law. Further, it is also admittedly found from the counter affidavit that the matter was investigated into and the allegation was found to be false, which is forthcoming from the paragraph-3(III) of the counter affidavit of OPNo.3, which is extracted as under:- is humbly submitted that “3(III). It in pursuant to the directions of the Vigilance No.4697/FARD Directorate dtd.26.04.2022 of the Special Secretary to Govt. Fisheries and ARD Department and the petitioner, Inquiry was complaint of conducted into the allegations by the present Letter and Page 5 of 11 deponent to ascertain the genuineness of the allegations and further course of action. During the course of Inquiry, it is found that the allegations are false in respect of “Forgery/ modification/ alternation by changing the terms and conditions mentioned in the “dispute the said in Page No.158 of resolution” Agreement”. It is also found during Inquiry that the signature and date in Page No.157 & 158 and signature of the Managing Director, OPOLFED put in the other pages of the agreement, are of same person i.e. namely Dr. Prashanta Kumar Biswal. During Inquiry the said Officer namely Dr. Prashanta Kumar Biswal admitted his signatures and date made in Page No.157 & 158 and also in other pages of the the agreement. While comparing “dispute resolution Clause” and the signatures & date mentioned in Page-157 & 158 with the original the Consultant, the same are tallied. Hence, it is established that the petitioner has lodged this Complaint as well as this case under suspicion and assumptions (as mentioned in Para-3.2 of the present CRLMP by the petitioner), without any cogent evidence. Moreover, in view of the aforesaid premises, there is no need of moving further under P.C. Act and IPC as no such alleged fraud/illegalities/offences have been committed by the staff of OPOLFED by abusing their Official position with dishonest intention causing pecuniary benefit to themselves in Agreement No.01/158 respect dtd.06.03.2017. Thus, the present CRLMP may kindly be dismissed in the interest of justice.” available with agreement the of 8. It is of course true that whenever any information is received by the police about commission of cognizable offence, it is the duty of the officers-in- charge of such police station to register the FIR, but the only concern in the mind of this Court is whether a writ Page 6 of 11 can be issued to the police authority to register the complaint of a person as an FIR. At the same time, another point also comes into the mind of the Court that what should be the course to be adopted, if in a given situation, if the police do not register an FIR. The answer to the aforesaid question definitely lies in the remedy available to the complainant to file a complaint before the Magistrate in terms of the simple modality as set out in Section 190 read with Section 200 of the CrPC. 9. In Divine Retreat Centre vrs. State of Kerala and others; (2008) 3 SCC 542, the Apex Court at paragraphs-41 and 42 has held as under:- that is convinced “41. It is altogether a different matter that the High Court its power in exercise of under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High the power of Court investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non- compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code. 42. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy lies under Sections Page 7 of 11 190, 200 CrPC, but a Writ Petition in such a case is not to be entertained.” 10. In Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SCC 409, the Apex Court at paragraphs-11 and 27 has been held as under:- then he can approach “11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it, no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being Page 8 of 11 registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.” 11. In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and others;(2016) 6 SCC 277, the Apex Court at paragraphs-2 and 3 has held as under:- “2. This Court has held in Sakiri Vasu v. State of Uttar Pradesh and others; (2008) 2 SCC 409, that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. 3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be Page 9 of 11 flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.” 12. In the present case, however, if a complaint is to be made by the petitioner for seeking a direction under Section 156(3) of CrPC, it inviolably required to obtain sanction of the competent authority for sending the complaint to the concerned vigilance police for registration and investigation, in view of the decision laid down by the apex Court in Anil Kumar and others Vrs. M.K. Aiyappa and another; (2013) 10 SCC 705. Be that as it may, the petitioner’s complaint to the authority having already been inquired into and found to be false, the only course left open to him to approach the competent Court, but in that event, the requirement of the law is required to be adhere to. 13. In view of the aforesaid discussion made hereinabove coupled with the law laid down by the Apex Court in the decisions referred to above and taking into account the claim of the petitioner, this Court is not inclined to issue any direction to OPNo.3 to register an FIR for the offences under the PC Act and Page 10 of 11 IPC and to conduct an investigation into the matter against the OPOLFED Staffs. 14. Hence, the CRLMP stands dismissed. The petitioner is, however, at liberty to approach the appropriate forum in accordance with the provisions of law for seeking redressal of his grievance. (G. Satapathy) Judge Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Reason: Authentication Location: High Court of Orissa Date: 04-Sep-2024 16:15:40 Page 11 of 11