S.R. Tripathy, S. Kanungo, A. Sarangi, V.A. Das & A.K. Mohanty, Advocates v. For Opp. Party
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos.3104 & 3105 of 2023 Applications under Section 482 of Criminal Procedure Code, 1973. CRLMC No. 3104 of 2023 Kishore Kumar Nayak …. Petitioner --------------- State of Odisha (Vig.) …. Opp. Party -versus- CRLMC No. 3105 of 2023 Sabita Mohanty …. Petitioner -versus- State of Odisha (Vig.) …. Opp. Party Advocate(s) appeared in these cases:- For Petitioner : M/s. B. P. Das, A. Mohanty, G. Mohanty, S. Samal S.R. Tripathy, S. Kanungo, A. Sarangi, V.A. Das & A.K. Mohanty, Advocates. Vs. For Opp. Party
Legal Reasoning
: Mr. N. Maharana Standing Counsel for the Vigilance [ in CRLMC No. 3104 of 2023] For Petitioner : M/s. B.P. Das, A. Mohanty, G. Mohanty, S. Samal S.R. Tripathy, S. Kanungo A. Sarangi, V.A. Das & Page 1 of 10 A.K. Swain, Advocates Vs. For Opp. Party : Mr. N. Maharana, Standing Counsel for the Vigilance __________________________________________________________ [ in CRLMC No. 3105 of 2023] CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11th September, 2023 SASHIKANTA MISHRA, J. Both these applications are directed against order dated 22.05.2023 passed by learned Special Judge Vigilance, Cuttack in T.R. Case No.40 of 2012 whereby the motion for discharge by the petition was rejected. 2. Both the petitioners are arrayed as accused persons in the aforementioned case for the alleged commission of offences under Section 13(2) read with Section 13(1)(d) of the P.C. Act and Sections 420/468/477-A read with Section 120-B of IPC. 3. The main allegation against the petitioners is that they were working as Lecturers in Adikabi Saraladas Page 2 of 10 College, Tirtol, which is an Aided Educational Institution. The Government of Odisha promulgated the Odisha Aided Educational Institutions (Appointment of Lecturers Validation) Act, 1998 to validate the appointment of lecturers appointed between 01.01.1985 to 31.12.1992. The Government in the Department of Higher Education asked all the College authorities to furnish list of Lecturers who had the requisite qualification and eligibility for such validation. The names of 18 (eighteen) Lecturers including the names of the present petitioners were forwarded and by order dated 06.01.2001, the services of 14 (fourteen) Lecturers were validated excluding the names of the present petitioners and one Itishree Mohanty. Such exclusion of name was on the basis of the allegation that their dates of joining in the institution had been manipulated only to bring their case within the cut-off date for validation. Accordingly, on the written report of D.S.P., Vigilance, Jagatsinghpur, Cuttack Vigilance P.S. Case No. 45 dated 11.11.2009 was registered for the aforementioned offences followed by investigation. Upon completion of Page 3 of 10 investigation, charge sheet was submitted and sanction for prosecution was obtained from the Sub-Collector-cum- President of the Governing Body of the College whereupon, the court below took cognizance of the offences and issued process. After appearance, the petitioners approached this Court in CRLMP No. 2579 of 2022 but the same was disposed of granting liberty to the petitioners to file a petition for discharge in the court below. Accordingly, the petitioners filed an application for discharge under Section 239 of Cr.P.C. Mainly on the ground that the Sub-Collector had no jurisdiction or authority to grant sanction for prosecution. The said petition was heard and rejected by the impugned order by holding that the question of authority of the Sub-Collector to accord sanction is to be gone into only on the basis of evidence to be led during trial but not at the stage of framing of charge. 4. Heard Mr. B.P. Das, learned counsel for the petitioners and Mr.N. Maharana, learned Standing Counsel for the Vigilance Department. Page 4 of 10 5. Mr. Das would argue that the sanction accorded by the Sub-Collector, Jagatsinghpur in the capacity of President of the Governing Body of the College is without jurisdiction inasmuch as this Court as per judgment passed in the case of Bharatiya Chaturdham Ved Bhawan Nyas and another v. State of Orissa and Another in W.P.(C) No.9541 of 2004 on 26th July 2010 held that the notification dated 10.10.2004 of the Government in Department of Higher Education in dissolving the Governing Body of all non-Government Aided Colleges with immediate effect and by directing the Additional District Magistrate at District Headquarters and Sub-Collectors at other places to take over as President of the Governing Bodies was quashed as being without any jurisdiction under the Odisha Education Act or Rules framed thereunder. Since the order of sanction was passed after passing of the judgment of this Court, the same has no force of law and therefore, the order of sanction must be held as invalid. Mr. Das further submits that the present case is squarely covered by the judgment rendered by this Page 5 of 10 Court in the case of co-accused, Itishree Mohanty v. State of Odisha (Vigilance) and others as reported in 2023 (I) OLR 223. 6. Mr. Niranjan Maharana, on the other hand, contends that this being a case of invalid sanction as claimed by the petitioners, can be raised and considered during trial but not at the threshold. 7. After hearing learned counsel for the parties, this Court finds that the very question that is, whether the Sub- Collector in the capacity of President of the Governing Body had the authority to issue the order of sanction has already been decided by this Court in Itishree Mohanty (supra). The case of Bharatiya Chaturdham (supra) was referred to by this Court to take note of the fact that the resolution of the Government dated 10.06.2004 on the basis of which the Sub-Collector had taken over as President of the Governing Body was quashed. A Division Bench of this Court in the case of Governing Body, Biju Pattnaik Degree College of Science and Education and another v. State of Odisha and others (W.A. No. 182/2019) by Page 6 of 10 order dated 30th April, 2019 also held that the Sub- Collector can act as the President but he lacks jurisdiction to act either as a Governing Body of an Aided College or as a disciplinary authority to inflict penalty on the employees. 8. As regards the reasoning adopted by the court below that the question of validity of sanction is a matter for trial, this Court finds that the same question was also raised and decided in Itishree Mohanty (supra) in the following words:- 11. Now the question is, whether the present case represents a case of no sanction or invalid sanction. According to Mr. Moharana, the Petitioner's grievance is invalidity of the sanction and not absence of sanction. Sri Pangari, on the other hand, would persuade this Court to hold that the so called sanction has to be treated as no sanction in the eye of law. 12. A careful reading of the ratio laid down in Dinesh Kumar's (supra) case, would make it clear that where a question of validity of sanction is raised the same is left to be thrashed out during trial on the basis of evidence adduced by the parties. The validity of sanction can also be challenged on the ground that the sanctioning authority was not competent to grant such authorized or sanction. This would obviously require evidence to prove. To amplify, whether the Page 7 of 10 on authority lacked competence to grant sanction would depend specific materials, documents etc. and their interpretation, which obviously would require evidence to be adduced. The present case, however, stands on a different footing inasmuch as there can be no manner of doubt that the original order of the Government empowering the Sub- Collector to act as the President of the Governing body having been quashed prior to issuance of the order of sanction, he must obviously be held to be lacking jurisdiction for issuing the same. To reiterate, the Notification dated 10th June, 2004 was quashed by this Court by order dated 26th July, 2010 whereas, the order of sanction was issued on 27th July, 2012. This Court further held that the Governing Body as existing on 10th June, 2004 would continue till reconstitution of the Governing Body in accordance with law. Such being the admitted position, the Sub-Collector obviously lacks jurisdiction to grant sanction for prosecution. Reference to the order of sanction, copy of which is enclosed as Annexure-9 would reveal that he has done so in the capacity of the President of the Governing Body. It has also been held in the sanction order that the Sub-Collector-cum- President, Governing Body has power to remove the Petitioner from service. This is again contrary to the judgment passed by this Court in the cases referred above that the Sub-Collector lacks jurisdiction to act either as a Governing Body of an Aided College or as a disciplinary authority to inflict penalty under Rule 20 of the Odisha Education (Recruitment and Conditions of Services of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (Governing Body of Biju Patnaik Degree College (supra)). Page 8 of 10 the same 13. These are facts which do not require any evidence to be established but are matters already settled by the pronouncement of this Court in the writ petitions and writ appeal referred above. Had there been any doubt regarding the competence of the sanctioning authority could have been ascertained during trial on the basis of evidence adduced by the parties, but in view of the clear factual and legal position referred above, nothing to be further determined in trial. In the event the matter goes to trial, the same result would ensue. Therefore, this Court has no hesitation to hold that the so called order of sanction issued under Annexure-9 is no sanction in the eye of law.” requires 9. Since such order was passed in respect of the co- accused person in the same case, who stands on exactly the same footing as the present petitioners and the proceeding was quashed on identical ground, i.e., want of valid sanction, the petitioners are entitled to similar relief. 10. Thus from a conspectus of the discussion and analysis made hereinbefore, this Court finds that the order of sanction under Annexure-12 being no sanction in the eye of law is therefore, invalid. Under such circumstances, continuance of the prosecution against the petitioners would be hit by Section 19 of the P.C. Act. Consequently, Page 9 of 10 the impugned order in rejecting the application for discharge is rendered unsustainable in the eye of law.
Decision
11. In the result, the CRLMCs are allowed. The impugned order is hereby quashed. The Court below is directed to pass orders to discharge the petitioners from the case. ..……..………………….. Sashikanta Mishra, Judge B.C. Tudu, Sr. Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Sep-2023 10:21:16 Page 10 of 10