The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.3319 of 2024 An application under Section 482 of Cr.P.C./Section 528 of the BNSS, 2023 E. Sankar Rao . Petitioner Mr. Pratiek Parija, Advocate along with Mr. Bishnu Prasad Pradhan, Advocate -versus- State of Odisha (Vig.) . Opposite Party Mr. N. Moharana, Standing Counsel for Vigilance Department CORAM: THE HON’BLE MR. JUSTICE A.K. MOHAPATRA Date of hearing : 23.07.2025 | Date of Judgment : 22.09.2025 A.K. Mohapatra, J. : 1. The above named Petitioner, who is a government employee, has been implicated as an accused in a case involving the charge of possessing assets disproportionate to his known sources of income, initiated at the instance of the Vigilance Department, Government of Odisha. Consequently, the Petitioner has approached this Court by filing the present application under Section 482 of the Cr.P.C. which corresponds to Section 528 of the BNSS. Page 1 of 27 2. By filing the present application the Petitioner seeks to invoke the inherent power of this Court to quash order dated 15.05.2024 under Annexure-5 and consequently quash the order taking cognizance of the offences dated 20.04.2023 in G.R. Case No.33/2016(v), pending in the Court of learned Special Judge Vigilance, Berhampur which arises out of Berhampur Vigilance P.S. Case No.45 of 2016. 3. The case of the prosecution, on a narrow compass, is that on getting reliable information regarding acquisition of disproportionate assets by the Petitioner, the Vigilance Police, Odisha conducted a search at his residence, office and residence of his relatives simultaneously. On the basis of such search, it has been alleged by the Vigilance Police that immovable and movable assets to the tune of Rs.74,54,526/-, including the house standing in the name of the father of the Petitioner, was assessed to be disproportionate to the known sources of income of the Petitioner. The cost of the house, which stands in the name of the father of the Petitioner, was assessed at Rs.51,33,629/- alone. On a detailed calculation and after taking into account the legitimate income and expenditure of the Petitioner, the department has arrived at a conclusion that the Petitioner has amassed disproportionate assets to the tune of Rs.56,44,990/-. Accordingly, a vigilance case was registered against the Petitioner bearing Berhampur Vigilance P.S. Case No.45 dated Page 2 of 27 11.08.2016 for commission of offences punishable under Section 109 of IPC read with Sections 13(2), 13(1)(e) of the P.C. Act. In the FIR, the wife of the Petitioner has also been shown as a co-accused. 4.
Legal Reasoning
After registration of the FIR by the Berhampur Vigilance P.S., the investigation of the case was carried out by the I.O. Although the case is of the year 2016, however, finally a charge-sheet was filed on 13.12.2022
Legal Reasoning
by Mr. Sarat Chandra Sahu, DSP Vigilance, who is the I.O. in this case. 5. It would be pertinent to mention here that before filing the present application another CRLMC application bearing CRLMC No.1843 of 2019 was filed at the instance of the Petitioner which was disposed of vide order dated 06.01.2020 with a direction to the Opposite Party to file the final form within three months adhering to the departmental circulars. Similarly, the father of the Petitioner filed CRLMP No.1594 of 2020 with a prayer for deletion of his household property and plot (bearing No.386 & 387) from the FIR on the ground that the same had been erroneously included in the Petitioner’s assets only with the intention to make out a case of disproportionate assets against the present Petitioner. A
Decision
Coordinate Bench of this Court vide order dated 01.02.2021 disposed of the CRLMP application with a direction to the Opposite Party to exclude those properties from the investigation in Berhampur Vigilance P.S. Case No.45 of 2016. Page 3 of 27 6. While this was the position and before filing of the final charge- sheet, the Petitioner had earlier filed another application bearing CRLMC No.687 of 2021 with a prayer to quash the entire proceeding on the ground that in the event the house property which stands recorded in the name of his father is excluded from the properties of the Petitioner, the alleged DA shall fall below 5%, thus the same would make the case non- registrable as per the Vigilance Department Circular No.4 of 2015. A Coordinate Bench of this Court vide order dated 01.09.2021 quashed the entire proceeding on the ground that the disproportionate assets as disclosed by the Vigilance Department would be less than 10%. 7. Being aggrieved by order dated 01.09.2021 passed in CRLMC No.687 of 2021, the Vigilance Department approached the Hon’ble Supreme Court by filing SLP (CRL) No.5244 of 2022. The Hon’ble Supreme Court disposed of the above noted SLP vide order dated 03.03.2023 by setting aside the order dated 01.09.2021 on the ground that the High Court had conducted a mini trial while the investigation was pending. The Hon’ble Supreme Court in its order dated 03.03.2023 further clarified that it is open to the Petitioner to raise all such contentions before the trial Court. 8. It may not be out of place to mention here that by the time the Vigilance Department approached the Hon’ble Supreme Court by filing Page 4 of 27 the above noted SLP, the investigation of the case was still open and the final form was not filed by them. During the pendency of the above noted SLP before the Hon’ble Supreme Court, the I.O. filed the charge-sheet on 13.12.2022. After filing of the charge-sheet the learned Special Judge Vigilance, Berhampur took cognizance of the offence vide order dated 20.04.2023 after rejecting the Petitioner’s application to reconsider the cognizance order. It would be gainsay to mention here that the wife of the present Petitioner who has been shown as a co-accused namely, P. Swarnalata had also approached this Court by filing CRLMC No.2660 of 2023 with a prayer to quash the entire criminal proceeding. This Court vide order dated 06.03.2024 quashed the criminal proceeding against the wife of the Petitioner on the ground that her role did not attract Section 109 of IPC and that her mere alleged participation with her husband did not ipso facto prove the guilt of the wife of the Petitioner under Section 109 of IPC. 9. After disposal of the SLP preferred by the Vigilance Department before the Hon’ble Supreme Court of India, the Petitioner filed an application before the learned trial Court with a prayer to reconsider the order of cognizance on the basis of the change in circumstance and to recall such order taking cognizance of the offences dated 20.04.2023 in the larger interest of justice. Such application was taken up for hearing Page 5 of 27 and disposed of vide order dated 15.05.2024. The learned trial Court after a detailed discussion of the materials on record rejected the application of the Petitioner on the ground that the same is devoid of merit. Being aggrieved by order dated 15.05.2024 as well as the original order of the learned Special Judge Vigilance, Berhampur dated 20.04.2023 taking cognizance of the offences, the Petitioner has approached this Court once again by filing the present application under Section 482 of Cr.P.C. 10. Heard Mr. Pratiek Parija, learned counsel appearing for the Petitioner along with Mr. Bishnu Prasad Pradhan and Mr. Niranjan Moharana, learned Standing Counsel for the Vigilance Department. Perused the application as well as the materials placed before this Court by both sides during hearing the present application. 11. Mr. Parija, learned counsel appearing for the Petitioner at the outset argued that even accepting, but not conceding, the allegation made in the FIR, no case is made out against the present Petitioner under the alleged Sections as indicated in the FIR. To substantiate the aforesaid contention, learned counsel for the Petitioner contended that the Petitioner had filed an additional affidavit on 14.11.2024 before this Court along with certain additional documents. Such documents are sale deeds dated 16.05.2016, 08.03.2013 & 31.01.2014 and the same have been marked as Annexure-6 series to this application. By referring to the Page 6 of 27 aforesaid sale deeds, learned counsel for the Petitioner contended that some of the properties which have been indicated in the list of assets, particularly immovable properties at Sl. Nos.2, 4, 5 & 7 in the charge- sheet, are already disposed of during the check period for a consideration of Rs.4,56,498/-. Despite such alienation of the properties at Sl. Nos.2, 4, 5 & 7, the Vigilance Department has included such properties in the charge-sheet under the heading “alleged disproportionate assets of the Petitioner”. In the aforesaid context, he also referred to the objection filed by the Opposite Parties in this case. Referring to paragraph-13 of the objection dated 07.03.2025, learned counsel for the Petitioner emphatically argued that the Opposite Parties have also admitted that the immovable properties at Sl. Nos.2, 4, 5 & 7 included in the charge-sheet have already been disposed of during the check period for a consideration amount of Rs.4,56,498/-. Thus, it was argued that if the said immovable properties are removed from the list of alleged disproportionate assets of the Petitioner and the undisputed consideration amount of Rs.4,56,498/- is added to the income of the Petitioner, the alleged disproportionate assets of the Petitioner would fall below 10% and as such, in view of the Vigilance Department Circular No.4 of 2015, the FIR against the Petitioner should not have been registered and that the Petitioner would not be liable for prosecution. Page 7 of 27 12. While further elaborating the aforesaid ground, learned counsel for the Petitioner strenuously argued that the Vigilance Department has admitted the fact that the properties at Sl. Nos.2, 4, 5 & 7 have been sold during the check period for a consideration amount of Rs.4,56,498/-. Such development has not been taken into consideration while preparing the final form and while arriving at a conclusion that the Petitioner possessed disproportionate assets, thereby making him liable to face the prosecution in the present case. In the aforesaid context, learned counsel for the Petitioner, drawing attention of this Court to the final form, submitted that the Opposite Parties have shown disproportionate assets to the tune of Rs.23,34,703/- (i.e. 117%) against a total income of Rs.19,88,159/-. The aforesaid calculation is sought to be challenged by the Petitioner on the ground that the same is grossly erroneous as some of the immovable properties which were sold during the check period have been included in the list of assets of the Petitioner. Thus, it was argued that a sum of Rs.4,56,498/- is to be deducted from the total amount of disproportionate assets of Rs.23,34,703/-. After such adjustment, the total amount of disproportionate assets would come down to Rs.18,78,205/- against a total income of Rs.24,44,498/- which would be approximately 77% of the total income. Thus, it was prayed that the entire proceeding is liable to be quashed on this ground alone. Page 8 of 27 13. Next, learned counsel for the Petitioner advanced his arguments with regard to the impact of the discharge of wife of the Petitioner from the present criminal case. He further submitted that the Petitioner’s wife’s assets, which were included in the income of the Petitioner, stand at Rs.7,10,380/- Similarly, the properties which stand recorded in the name of the father of the Petitioner are worth Rs.4,56,498/-. Therefore, it was argued that both the properties in the name of the wife of the Petitioner and the father of the Petitioner are to be excluded from the properties that have been shown in the final form as the properties of the present Petitioner. The entire properties including the properties belonging to the wife and the father of the Petitioner have been taken into consideration while calculating the total disproportionate assets. While questioning such a methodology adopted by Vigilance Department, learned counsel for the Petitioner argued that such a method of calculation of disproportionate assets of the Petitioner is completely erroneous and illegal. Thus, learned counsel for the Petitioner argued that the properties which exclusively stand in the name of the wife and father of the Petitioner are to be excluded from the calculation of total disproportionate assets. Once the same is given effect to, the total disproportionate assets would fall below 10%. Thus, the case would be rendered non-registrable in view of the Vigilance Department Circular No.4 of 2015. Referring to Page 9 of 27 the aforesaid Vigilance Department Circular at Annexure-2, learned counsel for the Petitioner emphatically argued that the same provides that so far DA cases against Group-C and Group-D employees are concerned, the same can only be registered only if the tune of the disproportionate assets is more than 100%. Since the Petitioner indisputably belongs to Group-C category, he is squarely covered by such Circular No.4 of 2015 at Annexure-2. He further contended that the contention with regard to the Circular No.4 of 2015 gets support from the objection filed by the Vigilance Department. 14. Additionally, learned counsel for the Petitioner questioned the grant of sanction for prosecution. In the said context it was argued that the sanction for prosecution in respect of the Petitioner was obtained from the Superintendent of Police, Berhampur. Since the Petitioner was promoted to ASI by the DIG of Police (Administration), Odisha, Cuttack, the competent authority to grant sanction for prosecution for an ASI would be the concerned DIG of Police, as per Rule 660 of the Odisha Police Manual. On such factual grounds, learned counsel for the Petitioner challenged the order taking cognizance of the offences alleged against the Petitioner. 15. In course of his argument, learned counsel for the Petitioner assailed the impugned order dated 15.05.2024 on the ground that the Page 10 of 27 same is an outcome of non-application of judicial mind by the learned Special Judge Vigilance, Berhampur. He further contended that although leave was granted by the Hon’ble Supreme Court to raise the ground before the learned trial Court, however, the learned trial Court has not considered the objection of the Petitioner in its proper prospective. On the contrary, it appears that the learned trial Court got swayed away by the wrong calculation produced before it by the Vigilance Police and the prosecution. In the process, the learned trial Court has committed a gross illegality of permitting the prosecution to include the assets of the Petitioner’s wife and his father by calculating the total assets of the Petitioner. Thus, it was argued that the cognizance has been taken mechanically without application of judicial mind. To support his assertion, learned counsel for the Petitioner would further argue that the final form has been submitted basing upon erroneous calculation only with the intention to somehow implicate the Petitioner in the present crime. During the hearing, the learned counsel for the Petitioner made an attempt to demonstrate the errors committed by calculating the total disproportionate assets of the Petitioner by emphasizing on the inclusion of the properties, in the total disproportionate assets of the Petitioner, though the same stands recorded in the name of the wife and the father of the Petitioner. Page 11 of 27 16. With regard to the legal aspect of the matter, learned counsel for the Petitioner at the outset referred to the judgment of the Hon’ble Supreme Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others reported in AIR 1992 SC 604. By referring to the aforesaid judgment learned counsel for the Petitioner strenuously argued that the Hon’ble Supreme Court while laying down the principles in Bhajan Lal’s Case (supra) has also included a ground for quashing of the FIR, i.e. where the criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In such eventuality, this Court would be well-within its jurisdiction to exercise its inherent power under Section 482 of Cr.P.C. to quash the criminal proceeding, so as to meet the ends of justice. 17. In the case of Usha Chakraborty and Anr. vs. State of West Bengal and Anr. reported in AIR 2023 SC 688, the Hon’ble Supreme Court of India, while taking note of the judgment in State of Haryana and others v. Ch. Bhajan Lal and others (supra), was pleased to hold that Section 482 of Cr.P.C. (now Section 528 of BNSS) is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to be used as a weapon for harassment. Similarly, in P. Page 12 of 27 Nallammal and Another v. State Represented by Inspector of Police reported in (1999) 6 SCC 559, the Hon’ble Supreme Court has categorically held that the burden of proof regarding disproportionate assets is entirely on the prosecution, though the onus to account for it is on the public servant. The Hon’ble Supreme Court has also held that in a criminal proceeding involving Section 13(1)(e) of PC Act a non-public servant has no role in the trial of the offence. In view of the aforesaid factual and legal position, learned counsel for the Petitioner vehemently argued that the criminal proceeding initiated against the present Petitioner be brought to an end not only to secure the ends of justice, but also to prevent a gross abuse of the process of the law to harass a government servant in the hands of the Vigilance Police, that too without there being any material to establish a case against the Petitioner. 18. Mr. N. Moharana, learned Standing Counsel for the Vigilance Department on the other hand opposed the prayer made in the present application. In course of his argument, Mr. Moharana, learned Standing Counsel for the Vigilance Department submitted that the Petitioner is the principal accused in the present vigilance case and that he is facing trial for commission of an offence punishable under Section 13(2) read with Section 13(1)(e) of the PC Act, 1988, on the allegation of possessing assets disproportionate to his known sources of income to the tune of Page 13 of 27 Rs.23,34,703/- during the check period. At the outset, he also contended that the sanction for prosecution has been legally and validly obtained from the competent authority and as such no fault can be found with the order granting sanction for the prosecution. It was also contended that in the meantime cognizance has been taken and the trial has commenced. He has further argued that since the offence which has allegedly been committed is the subject matter of the trial, which is now underway, the same cannot be questioned in the present application filed under Section 482 of Cr.P.C. 19. So far as the departmental circular is concerned, learned Standing Counsel for the Vigilance Department argued that the same is directory in nature and that it cannot override the statutory provisions itself. In the aforesaid context, he also referred to the objection filed by the Vigilance Department before the learned Trial Judge to impress upon this Court that the prosecution has been successful in laying out a triable case against the Petitioner. Therefore, the present case should go to trial and that curtailment of such trial would be against the interest of justice. While defending order dated 15.05.2024, learned Standing Counsel for the Vigilance Department, by referring to the judgment of the Hon’ble Supreme Court in M.E. Shivalingamurthy v. CBI, Bengaluru reported in (2020) 2 SCC 768, to submit before this Court that the Hon’ble Supreme Page 14 of 27 Court has categorically stated that it is not open to the accused to rely on the materials by way of defence and persuade the Court to discharge him. 20. Learned Standing Counsel for the Vigilance Department also referred to the judgment of Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460, wherein the Hon’ble Supreme Court while taking into consideration its earlier judgments culled out the principles in respect of interference/exercise of jurisdiction under Section 397 or 482 of Cr.P.C. at the stage of framing of charge to quash the charge of proceeding, as the case may be. Learned Standing Counsel for the Vigilance Department specifically referred to the observation made in Para- 27.1, 27.3, 27.12, 27.13, 17.14, 36 of the judgment in Amit Kapoor’s case (supra). By referring to the aforesaid paragraphs of the said judgment, the learned Standing Counsel for the Vigilance Department advances his argument which has been summarized as follows; i) Though there are no limits of the powers of the Court under Section 482 of the Code, however, it has observed that more the power, the more due care and caution is to be exercised and that such power shall be exercised very sparingly and with lot of circumspection and in the rarest of rare cases. ii) The High Court should not interference in a routine manner in the trials in exercise of its inherent power. No meticulous examination of the evidence is needed to consider as to whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Page 15 of 27 iii) While exercising jurisdiction under Section 228 and/or under Section 482 of Cr.P.C., the Court is not supposed to take into consideration external material given by the accused for reaching at a conclusion that no offence was disclosed or that there exists a possibility of acquittal. The Court should confine its scrutiny to the record and documents annexed to the charge-sheet by the prosecution. iv) Quashing of a charge is an exception to the rule of continuous prosecution. While the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. At that stage, the Court is required to form a prima facie opinion on the basis of the records and documents produced before it by the prosecution. v) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. vi) It was held by the Hon’ble Supreme Court that the finding of the High Court suffers from error of law as it has delved into the field of appreciation and evaluation of the evidence which is beyond the jurisdiction, either under the Revisional or inherent power of the High Court. 21. In view of the aforesaid position of law, Learned Standing Counsel for the Vigilance Department urged before this Court that the impugned order passed by the learned trial Court does not suffer from any vices or illegalities which would call for interference by this Court in exercise of its inherent power saved under Section 482 of Cr.P.C. Accordingly, it was contended that the present case is not a fit case where this Court should exercise its inherent power to quash the entire criminal proceeding as the factual background of the present case does not fall within the category of rarest of rare cases wherein this Court is legally authorized to Page 16 of 27 exercise its inherent power. Therefore, the learned Standing Counsel for the Vigilance Department prayed for dismissal of the entire application filed by the Petitioner. 22. On the basis of the submission made by the learned Standing Counsel for the Vigilance Department, this Court also examined the grounds taken in the objection affidavit of the Vigilance Department dated 07.03.2025, particularly Paras 5 to 15 thereof. The averments contained in Paras 5 to 15 deals with the factual aspects of the present case. In Para Nos.5, 6 & 7 the Opposite Party has dealt with the previous application bearing CRLMC No.687 of 2021 filed by the Petitioner. It has been stated that the Coordinate Bench, vide judgment dated 01.09.2021, quashed the vigilance proceeding initially on the ground that the DA amount is less than 10% and that in view of the circular of the Vigilance Department No.4 of 2015, no case can be registered against the Petitioner. The aforesaid judgment dated 01.09.2021 was assailed before the Hon’ble Supreme Court by filing SLP (CRL) No.5244 of 2022. The Hon’ble Supreme Court vide order dated 03.03.2023 set aside the impugned judgment dated 01.09.2021. Thus, it was argued that by allowing the SLP the Hon’ble Supreme Court had granted an opportunity to the Vigilance Department to file the charge-sheet of closure report before the learned trial Court. Accordingly, on completion of the Page 17 of 27 investigation, a charge-sheet was submitted on 13.03.2022 against the Petitioner and his wife for possession of DA to the tune of Rs.23,34,703/- (117.43%). Further, referring to the order dated 03.03.2023, learned Standing Counsel for the Vigilance Department contended that the Hon’ble Supreme Court, upon a close scrutiny of order dated 01.09.2021, was pleased to set aside the same with the opinion that the High Court has conducted a mini trial when the investigation was still pending. Moreover, the Hon’ble Supreme Court has cautioned the High Court not to interfere at the stage of investigation as it is only on completion of the investigation that the department is required to either file a charge-sheet or a closure report. Although the Vigilance Department Circular No.4 of 2015 was brought to the notice of the Hon’ble Supreme Court, however, the Hon’ble Supreme Court declined to make any comment on that and granted liberty to the Petitioner-Respondent to raise all such plea and contention before the Trial Court. It was also clarified that the observation made by the Hon’ble Supreme Court is for the purpose of disposal of the SLP and that the same should not influence the learned trial Court while considering the application of the Petitioner on its own merit. 23. The objection affidavit further reveals that the learned Special Judge Vigilance, Berhampur took cognizance of the offence on Page 18 of 27 20.04.2023 against the Petitioner as well as his wife. The wife of the Petitioner challenged the cognizance order dated 20.04.2023 in CRLMC No.2660 of 2023, which has been allowed by this Court vide judgment dated 06.03.2024. While allowing the said application, the learned Coordinate Bench had made an observation that the wife was a mere name lender and that the property was acquired by the principal accused from his sources. Therefore, the Petitioner being the principal accused, has a responsibility to explain the lawful source of such acquisition of assets. 24. In reply to the allegation of the Petitioner that the value of the articles and fixtures found during search from the house where the Petitioner was residing and which stands in the name of the father of the Petitioner, have been illegally added, the learned Standing Counsel for the Vigilance Department submitted that the articles were found from the room where the Petitioner was residing with his family and the same were seized and placed in the seizure list and, as such, the same belong to the Petitioner and his family. On the contrary, the articles found from the room in occupancy of his father, have not been included in the charge- sheet. As such, the learned Standing Counsel for the Vigilance Department objected to such assertion of the learned counsel for the Petitioner. Page 19 of 27 25. Similarly, in reply to the contention of the learned counsel for the Petitioner that the immovable properties which have been disposed of and the consideration value should have been included in the income of the Petitioner, learned Standing Counsel for the Vigilance Department submitted that the Petitioner during the course of investigation did not bring such fact to the notice to the I.O. and no such petition was filed before this Court or before the Hon’ble Apex Court that the said immovable properties have been disposed of in the meantime. He further alleged that the Petitioner failed to show what he has done with the consideration money. As a consequence thereof, the Vigilance Department has not committed any illegality in treating the entire consideration amount to have been spent by the Petitioner as expenditure. With regard to the statement of the Petitioner under Section 161 of Cr.P.C that he had purchased seven numbers of plots in the name of his wife and himself, the learned Standing Counsel for the Vigilance Department countered the same on the ground that the same is not acceptable at this stage. He further argued that the DA case is based on income known to the prosecution and that the income known to the Accused-Petitioner is irrelevant in as much as the Petitioner has to discharge his burden during the course of trial. While appreciating Para-13 of the objection filed by the Vigilance Department, this Court observed that in reply to the Page 20 of 27 disposal of the immovable properties at Sl. Nos.2, 4, 5 & 7 in the charge- sheet during the check period for a consideration amount of Rs.4,56,498/- , the learned Standing Counsel for the Vigilance Department emphatically argued that the said income has not been shown as part of the income of the Petitioner. It is further clarified that the Petitioner had at no point of time brought the same to the notice of the Investigating Officer during the course of investigation. As such, the aforesaid consideration amount of Rs.4,56,498/-, admittedly has not been included in the income of the Petitioner in the charge-sheet. 26. With regard to grant of sanction by the competent authority, the learned Standing Counsel for the Vigilance Department at the outset contended that the sanction has been obtained validly and as per the rules. In the aforesaid context, learned Standing Counsel for the Vigilance Department referred to Rule 824 & 825 (C) of the Odisha Police Manual, which envisages that the Superintendent of Police is the competent authority to pass an order of dismissal and also being the disciplinary authority in respect of the police officers up to the rank of Sub-Inspector of Police is competent to grant sanction. He further contended that since the Petitioner was Asst. Sub-Inspector of Police at the relevant point of time, therefore, the sanction granted by the Superintendent of Police of the concerned district is a valid sanction and no fault can be found in such Page 21 of 27 sanction order. Moreover, it was also argued that the question with regard to the validity of sanction can only be gone into during trial and that the same cannot be raised at the threshold. Accordingly, learned Standing Counsel for the Vigilance Department supported the charge-sheet, the order taking cognizance dated 20.04.2023 and the consequential order dated 15.05.2024 of the learned Special Judge Vigilance, Berhampur in G.R. Case No.33 of 2016 (V). 27. Having heard the learned counsels appearing for the respective parties, on a careful examination of the factual background of the present case as well as the materials brought on record and, on a close scrutiny of the pleadings of the respective parties and the written notes of argument, this Court observes that the Petitioner, who is an accused in a vigilance case and facing an allegation of acquisition of assets which are disproportionate to his known sources of income, has approached this Court by filing the present application under Section 482 of Cr.P.C. for quashing of the entire criminal proceeding. Learned counsel for the Petitioner in course of his argument laid much emphasis on the fact that certain properties, which have been listed at Sl. Nos.2, 4, 5 & 7 of the charge-sheet to establish that the Petitioner has acquired assets disproportionate to his known sources of income, have not been verified as to whether such properties continue to remain with the Petitioner or Page 22 of 27 they have been disposed of. He further strenuously argued that there are ample materials to establish the fact that the aforesaid properties were disposed of during the check period itself. As such, it was argued that the investigating agency has failed to investigate the matter properly. Moreover, since the burden of proof is on the prosecution to establish the fact that the Petitioner is allegedly involved in a case of acquiring disproportionate assets, a heavy burden falls on the prosecution to conduct the investigation with due care and caution and thorough verification of the records and documents. Since it is alleged by the prosecution that the Petitioner has acquired assets, as has been indicated in the charge-sheet, the burden is on them to establish that such properties continue to stand recorded in the name of the Petitioner and that they have not been disposed of. On a careful analysis of the submission made by the learned counsels from both sides, this Court observes that the crux of the dispute in the present application revolves around the properties listed at Sl. Nos.2, 4, 5 & 7 of the charge-sheet. 28. Learned counsel for the Petitioner has laid considerable emphasis on the fact that the aforesaid properties at Sl. Nos.2, 4, 5 & 7 of the charge-sheet were disposed of during the check period and that the income derived from such disposal, which is to the tune of Rs.4,56,498/- and is a matter of record, should have been added to the income of the Page 23 of 27 Petitioner during the check period. Learned Standing Counsel for the Vigilance Department on the other hand put the blame on the Petitioner by stating that at no point of time was the aforesaid fact brought to the notice of the Investigating Officer during the investigation. At this stage, this Court would like to make it clear that in a case of this nature the burden is on the prosecution to prove its case beyond all reasonable doubt. Even at the stage of filing of charge-sheet or taking of cognizance, the prosecution is required to establish a prima facie case based on correct factual position. Therefore, the prosecution cannot avoid its role during investigation by taking a plea that such fact was not brought to the notice of the Investigating Officer during the investigation. On the contrary, this Court is of the view that it is the duty of the Investigating Officer to examine the allegation as well as the material with a due care and caution and he should have ensured that the properties, which have been included in the charge-sheet and form the basis of the entire allegation against the petitioner, resulting in the Petitioner being required to face the trial, are factually correct and that such properties continue to remain in the name of the Petitioner, i.e., such properties have not been alienated by the Petitioner during the check period. Moreover, it is not difficult for the investigating agency to find out as to whether such properties continue to remain in the name of the Petitioner or they have been alienated during Page 24 of 27 the check period in as much as such fact can be easily verified from the local registration office. 29. On a careful scrutiny of the reply given by the Vigilance Department in its objection, particularly in Para-13 with regard to the immovable properties at Sl. Nos.2, 4, 5 & 7 in the charge-sheet, this Court is not satisfied with such a reply. A charge-sheet forms the basis on which the Court determines whether the Petitioner must face trial. Compelling a public officer to undergo trial causes severe harassment, which makes it all the more necessary for the prosecution to exercise utmost caution while filing the charge-sheet, particularly with respect to the facts included therein. The explanation given by the I.O. that the aforesaid fact of alienation of the immovable properties at Sl. Nos.2, 4, 5 & 7 of the charge-sheet was not brought to the notice of the I.O. during investigation by the Petitioner is not a ground to defend a charge-sheet which is otherwise erroneous. Now, it is true that if a case of acquisition of disproportionate assets is actually made out against an accused, the accused should be made to face the trial considering the significance of the fact that such accused is involved in defalcation of public money. Therefore, the prosecution is duty bound to make out a fruitful case based on correct facts to compel the Petitioner to face the trial. Page 25 of 27 30. In view of the aforesaid analysis of factual position as well as keeping in view the law that has been discussed hereinabove, particularly the observation of the Hon’ble Supreme Court in Amit Kapoor’s case (supra), which have been crystalized in the preceding paragraphs, this Court, while considering the validity and the correctness of the charge- sheet, is required to be broadly satisfied with the facts presented therein. It is only on such broader satisfaction that this Court can permit continuation of the prosecution instead of quashing the criminal case at the initial stage. Further, keeping in view the law laid down by the Hon’ble Supreme Court as well as this Court, this Court is of the considered view that the investigating agency has not performed its duty in accordance with the requirements of law. Moreover, such lacunae having not been credibly rebutted by the investigating agency in its objection, particularly keeping in view Para-13 of the objection, this Court is of the view that on the basis of the charge-sheet the Petitioner should not be made to face trial. Accordingly, although this Court not inclined to quash the entire criminal proceeding, however, taking into consideration the analysis made hereinabove, this Court is of the considered view that the charge-sheet filed by the investigating agency contains defects which are apparent on the face of the record. As such, this Court has no hesitation in quashing the charge-sheet dated Page 26 of 27 13.13.2022 and the consequential order dated 20.04.2023 taking cognizance of offence and the rejection order dated 15.05.2024 of the learned Special Judge Vigilance, Berhampur in G.R. Case No.33 of 2016 (V) arising out of Berhampur Vigilance P.S. Case No.45 of 2016. However, while disposing to the present application, this Court grants liberty to the investigating agency to conduct a de novo investigation in respect of the properties at Sl. Nos.2, 4, 5 & 7 of the charge-sheet filed earlier and, accordingly, after a thorough investigation and careful scrutiny thereof, either file the final form or the closure report taking into consideration the Vigilance Department Circular No.04 of 2015, as expeditiously as possible. 31. Accordingly, the CRLMC application stands allowed to the extent indicated hereinabove. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 22nd September, 2025/ S.K. Rout, Jr. Stenographer Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Sep-2025 18:56:34 Page 27 of 27