Orissa High Court
Smt. Kumudini Padhy vs State Of Odisha (Vig.) ....... Opposite ... on 4 September, 2019
Equivalent citations: AIRONLINE 2019 ORI 153, (2019) 203 ALLINDCAS 629 (2019) 2 ORISSA LR 732, (2019) 2 ORISSA LR 732
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2285 Of 2018
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.12 of 2011(V)/
T.R. No.15 of 2018 pending on the file of Special Judge
(Vigilance), Berhampur.
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Smt. Kumudini Padhy ....... Petitioner
-Versus-
State of Odisha (Vig.) ....... Opposite party
For Petitioner: - Mr. Manoj Kumar Mishra
(Senior Advocate)
Tanmay Mishra
B. K. Mishra
For Opp. Party: - Mr. Niranjan Moharana
Addl. Standing Counsel
(Vigilance)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 19.08.2019 Date of Judgment: 04.09.2019
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S. K. SAHOO, J. The petitioner Smt. Kumudini Padhy who is an
octogenarian lady has filed this criminal miscellaneous
application under section 482 of the Code of Criminal Procedure
challenging the proceeding in G.R. Case No.12 of 2011(V)/T.R.
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No.15 of 2018 pending in the Court of learned Special Judge
(Vigilance), Berhampur in which after taking cognizance of
offence under section 13(2) read with section 13(1)(e) of the
Prevention of Corruption Act, 1988 (hereafter '1988 Act') and
section 109 of the Indian Penal Code, process has been issued
against her. The said case arises out of Berhampur Vigilance P.S.
Case No.12 of 2011.
2. On 15.03.2011 on the first information report lodged
by Sri Rabikanta Suna, Inspector of Police, Vigilance,
Paralakhemundi before the Superintendent of Police, Vigilance,
Berhampur Division, Berhampur, the case was instituted wherein
it is alleged that an enquiry was conducted on receipt of the
reliable information relating to the accumulation of
disproportionate assets by Sri Akhaya Kumar Padhy, J.E.,
Irrigation Section, Bhismagiri under Chikiti Irrigation Division,
Berhampur. The said co-accused Sri Padhy happens to be the
son of the petitioner.
Enquiry revealed that Sri Padhy is the only son of
Late Banamali Padhy of village Bendalia under Sadar police
station, Berhampur in the district of Ganjam. He has only one
sister namely Smt. Nilima Padhy who was already married and
staying at village Ganj under Gopalpur police station in the
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district of Ganjam. His father late Banamali Padhy had Ac.09.00
dec. of land, out of which Ac.05.00 dec. was rainfed and the rest
was non-rainfed. After completion of his education, Sri Padhy
entered into Government service as a Junior Engineer on
23.07.1987 at Upper Kolab Irrigation Project, Kolab Nagar in the
district of Koraput. He had worked at Padampur Block, Irrigation
Project, Kendugada, Irrigation Project, Baghalati, Irrigation
Division, Bhanjanagar, Irrigation Division, Bhawanipatna and at
Irrigation Section, Bhismagiri under Chikiti Irrigation Division
where he was continuing. He married to one Mamta Padhy,
daughter of Duryodhan Padhy on 08.03.1988 and was blessed
with three sons namely Darubrahma Padhy, Chinmaya Padhy
and Adarsa Padhy. His elder son Darubrama Padhy had
completed his Engineering studies in Electronics from Ronald
Institute of Technology in the year 2010. His 2nd son Chinmaya
Padhy was prosecuting 2nd year Civil Engineering studies at ITER
College, Berhampur and his younger son namely Adarsa Padhy
was reading +2 Science 2nd year at Nilakhanthanagar Sisu
Bidyamandira, Berhampur.
During house search and on subsequent enquiry, it
was found that during his service period from 23.07.1987 to
16.12.2010, Sri Padhy had acquired total immovable assets to
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the tune of Rs.38,75,930.00 paisa and moveable assets to the
tune of Rs.15,00,097.25 paisa and thus the total moveable and
immovable assets came to Rs.53,76,027.25 paisa. His assets
included gold ornaments, deposits in various Banks, LIC and
valuable household articles.
It was found on enquiry that during the check period,
Sri Padhy had earned salary amounting to Rs.19,13,793.00.
Against such income, he had incurred expenditure to the tune of
Rs.14,91,661.00 and thus leaving a saving balance of
Rs.4,22,132.00. Against such probable saving, Sri Padhy was in
possession of assets worth of Rs.53,76,027.25 paisa. Therefore,
the disproportionate assets was to the tune of Rs.49,53,895.25
paisa and the percentage of disproportionate assets to his known
source of income was 258.85%.
It is stated in the first information report that co-
accused Sri Padhy being a public servant is liable for criminal
misconduct for acquiring and possessing assets disproportionate
to his known source of income which is an offence under section
13(2) read with section 13(1)(e) of the 1988 Act.
Accordingly, on receipt of such first information
report, Berhampur Vigilance P.S. Case No.12 of 2011 was
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registered under section 13(2) read with section 13(1)(e) of the
1988 Act against Sri Akhaya Kumar Padhy only.
3. During course of investigation, the entire service
period of Sri Akhaya Kumar Padhy i.e. 23.07.1987 to 16.12.2010
was taken as check period considering accumulation of valuable
movable and immovable assets. Sri Padhy had not submitted
any property statement but it was ascertained that permission
has been accorded under Rule 21(1) of Odisha Government
Servant Conduct Rules, 1959 to purchase plot no.153, Khata
no.850 of Mouza Alakapur of 1594 sq. ft. from one Smt. Tumula
Nilima of Prem Nagar, 3rd Lane, Berhampur for Rs.2,55,950/-
and selling of plot no.780/2938 in Mouza Old Berhampur of area
Ac.0.053 dec. to Sri Repak Jagan Mohan of Prem Nagar, 5th
Lane, Berhampur for Rs.10,58,000/-. Sri Padhy had filed income-
tax returns basing on salary income and income from house and
tower rents. During the assessment year 2007-08, he had shown
income of Rs.20,114/- and for the assessment year 2008-09, he
had shown the income of Rs.16,686/-. No income was shown in
the year 2009-10. For the assessment year 2010-11, a sum of
Rs.25,914/- was shown as income from house rent and
Rs.81,429/- as tower rent. Thus a sum of Rs.1,44,413/- was
shown as income from house and tower rent. No income tax
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return was filed by the wife of the co-accused Sri Padhy. Since
no income was shown from agriculture, hence agricultural
income was not taken into account by the investigating officer.
So far as the income of Sri Padhy is concerned, it
was found that during the check period, he had received a net
salary and allowances of Rs.19,29,006/-, income from house and
other sources i.e. from tower rents as shown in income tax
return was Rs.1,44,143/-, income from housing loan availed
from SBI, Bhapur Bazar Evening Branch, Berhampur Branch was
Rs.6,00,000/-, income from LIC premium was Rs.9,700/-,
income from GPF was Rs.4,07,000/-, income from pension of his
mother (petitioner) received upto 16.12.2010 was
Rs.4,35,065/-, income from selling of plot bearing No.780/2938
in Khata No.365/1362 of area Ac.0.053 under Puruna Berhampur
Mouza to one Repaka Jagan Mohan was Rs.10,58,000/-, income
from selling a plot of agricultural land under Mouza Haladia
Padar, Berhampur to one Rama Krushna Samantaray was
Rs.2,10,000/-, income from selling of another plot of agricultural
land under Mouza Haladia Padar, Berhampur to one Ankima
Bapiraju was Rs.1,66,060/-, income from selling another plot of
agricultural land under Mouza Haladia Padar, Berhampur to one
Smt. Moninge Krishna Kumari Subudhi was Rs.28,240/-, income
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from selling another plot of agricultural land under Mouza
Haladia Padar, Berhampur to one Sri T. Mohan Rao was
Rs.28,240/- and thus the total income of Sri Padhy came to
Rs.50,15,454/-.
So far as the expenditure of Sri Padhy is concerned,
it was found that during the check period, the total expenditure
was to the tune of Rs.24,26,283/-.
During the check period, it was found that Sri Padhy
had acquired immovable assets to the tune of Rs.28,11,548/-
and moveable assets to the tune of Rs.16,60,421/-. Thus the
total moveable and immovable assets was found to be of
Rs.44,71,969/-.
After calculating the income, expenditure, probable
saving, assets at the beginning of check period and assets at the
end of check period, the investigating officer found that the
disproportionate assets was to the tune of Rs.18,60,671/-. Sri
Padhy could not explain satisfactorily about the disproportionate
assets and his wife Smt. Mamita Padhy and mother (petitioner)
alleged to have acquired assets on behalf of Sri Padhy by
abetting him in the accumulation of disproportionate assets.
Accordingly, the investigating officer on completion of
investigation held that there are prima facie evidence to show
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that Sri Padhy and his wife Smt. Mamita Padhy and mother
(petitioner) acquired and possessed disproportionate assets to
the tune of Rs.18,60,671/- during the service period from
23.07.1987 to 16.12.2010. After obtaining the sanction order of
prosecution against Sri Padhy under section 19(1)(b) of the 1988
Act, charge sheet was submitted on 22.11.2017 under section
13(2) read with section 13(1)(e) of 1988 Act and section 109 of
the Indian Penal Code against Sri Akhaya Kumar Padhy, his wife
Smt. Mamita Padhy and mother (petitioner), on receipt of which
the impugned order dated 23.05.2018 was passed.
4. Mr. Manoj Kumar Mishra, learned Senior Advocate
appearing for the petitioner challenging the impugned order
contended that the petitioner who is the mother of the public
servant cannot be prosecuted for the charge of abetment of
alleged acquisition of disproportionate assets by the public
servant. It is further contended that though F.I.R. was lodged
only against the son of the petitioner but while submitting charge
sheet, the Vigilance Police added the petitioner as an accused
along with her son Akhaya Kumar Padhy and daughter-in-law
Mamita Padhy on the ground that she abetted her son in
acquiring disproportionate assets. It is contended that the
husband of the petitioner namely late Banamali Padhy was a
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Primary School Teacher who died in the year January 1983 and
the petitioner was receiving family pension after the death of her
husband and the total amount she received towards family
pension was Rs.5,04,901/-. The petitioner was having money
lending business for three years upto a capital of Rs.40,000/- by
obtaining license bearing registration no.2 of 1986, 3 of 1987
and 1 of 1988. During the check period, the petitioner purchased
a land in Mouza Haladia Padar, Berhampur for Rs.1,40,250/- but
sold a part of that land for an amount of Rs.4,32,540/- and thus
the differential amount she earned was Rs.2,92,290/-.
Therefore, even if the income from money lending business is
not taken into account for the present, the petitioner can still be
said to have income from family pension and profit from the
selling of land to the tune of Rs.5,04,901.00 paisa (+)
Rs.2,92,290.00 paisa = Rs.7,97,191.00 paisa.
It is further submitted that during the check period,
the petitioner purchased agricultural lands in Mouza Bendalia on
11.07.1991 for Rs.37,100/-, on 19.06.1992 for Rs.5,500/-, on
21.09.1999 for Rs.41,650/-, on 11.09.2001 for Rs.14,800/- and
on 07.05.2002 for Rs.34,680/- and thus the total agricultural
land purchased was to the tune of Rs.1,33,730/-. Similarly
during the check period, the petitioner deposited Rs.1,00,000/-
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in the Central Cooperative Bank, Berhampur, Rs.50,000/- in the
Bank of India, Berhampur, Rs.47,655/- in the Bank of India,
Berhampur and further deposited Rs.1,50,000/- in the Head Post
Office in the Senior Citizen Savings Scheme Pass Book and thus
the total deposit amount in the name of the petitioner in the
Bank and Post Office was Rs.3,47,655/-. Therefore, the
petitioner had acquired total assets of Rs.1,33,730.00 paisa (+)
Rs.3,47,655.00 paisa = Rs.4,81,385.00 paisa. It is submitted
that since the petitioner was staying with her only son who is the
main accused in the case, her per capita consumer expenses
such as food, clothing and fuel etc. was borne by her son and as
such it is not to be excluded from the individual income of the
petitioner to decide her net saving but expenditure on such
heading is to be considered while considering the expenditure of
the main accused. Therefore, the petitioner has acquired assets
worth of Rs.4,81,385/- as against her individual income of
Rs.7,97,191/- which cannot be said to be illegal under any
stretch of imagination and as such submission of charge sheet
against the petitioner on the accusation that she abetted the
alleged acquisition of disproportionate assets by her son is totally
misconceived particularly when there is no iota of evidence in
that respect.
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5. Mr. Niranjan Maharana, learned Addl. Standing
Counsel for the Vigilance Department on the other hand
submitted a note of submission wherein it is indicated that the
petitioner had received family pension of Rs.4,35,065/- and not
Rs.5,04,901/- as contended by the learned counsel for the
petitioner. He argued that one third of such pension amount is to
be deducted for nominal expenditure and thus the net income
from family pension comes to Rs.2,90,000/-. While not disputing
the differential amount of Rs.2,92,290/- which the petitioner
received due to sale of land in Mouza Haladia Padar, Berhampur
so also the cost of the total agricultural land purchased in the
name of the petitioner to the tune of Rs.1,33,730/-, he
submitted that the petitioner had bank deposits of Rs.3,91,326/-
and not Rs.3,47,655/- as submitted by the learned counsel for
the petitioner. It is submitted that the petitioner had excess
assets to the tune of Rs.88,911/-.
6. Adverting to the contentions raised by the learned
counsel for the respective parties and on careful scrutiny of the
charge sheet, it is found that the deposits standing in the name
of the petitioner in different banks and post office which was
shown under the heading of 'movable assets' comes to
Rs.3,47,655/- and not Rs.3,91,326/- as contended by the
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learned counsel for the Vigilance Department. If the undisputed
amount of Rs.1,33,730/- towards the purchase value of the
agricultural land is added to it, then it comes to Rs.4,81,385/-.
Therefore, the learned counsel for the petitioner is right in his
submission that the petitioner had acquired total assets of
Rs.4,81,385.00 paisa during the check period.
Even if it is taken into account as contended by the
learned counsel for the Vigilance Department that after
deducting the nominal expenditure of one-third of the family
pension, the net income of the petitioner under that heading
comes to Rs.2,90,000/- and since it is not disputed that the
petitioner has received differential amount of Rs.2,92,290/- due
to sale of land in Mouza Haladia Padar, Berhampur, therefore,
the total individual income of the petitioner during the check
period can be calculated at Rs.2,90,000/- (+) Rs.2,92,290/- =
Rs.5,82,290/-. As against the net income of Rs.5,82,290/-, if
the petitioner has acquired total assets of Rs.4,81,385/-, it
cannot be said that there was any excess assets possessed by
the petitioner which has come to her from her son Shri Akhaya
Kumar Padhy.
The investigating officer should have carved out the
individual income of the petitioner, her expenditure and the
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assets acquired by her and not by jumbling up with her son who
is the main accused in the case and thereby coming to hold that
she acquired the assets on behalf of her son by abating him in
the accumulation of disproportionate assets and therefore
making her liable with the aid of section 109 of the Indian Penal
Code.
7. It is not in dispute that in view of the ratio laid down
in the case of P. Nallammal -Vrs.- State reported in (1999)
6 Supreme Court Cases 559, if a non-public servant is also a
member of the criminal conspiracy for a public servant to commit
any offence under the 1988 Act, or if such non-public servant
has abetted any of the offences which the public servant
commits, such non-public servant is also liable to be tried along
with the public servant before the Court of a Special Judge
having jurisdiction in the matter. Merely because some of the
disproportionate assets stand in the name of a non-public
servant, without any element of abetment, he cannot be asked
to face the trial along with the public servant on the ground that
he is the kith and kin of the public servant. However, if there are
specific materials against such non-public servant being a kith
and kin of the public servant to have abetted the public servant
in the acquisition of disproportionate assets, he can be
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prosecuted along with the public servant in the disproportionate
assets case which would depend on the facts and circumstances
of each case. In the said case, illustrations have been given as to
how the offence under section 13(1)(e) of the 1988 Act can be
abetted by non-public servants.
8. The expression "cognizance" connotes to take notice
of judicially. Taking cognizance does not involve any formal
action of any kind. It occurs as soon as a Magistrate applies his
mind to the suspected commission of an offence. It is nothing
but taking of judicial notice on a cause or matter presented
before it so as to decide whether there is any basis for initiating
proceedings and determination of the cause or matter judicially.
Criminal law cannot be set into motion as a matter of course.
Cognizance is taken of an offence and not of the offender. At this
stage, the Magistrate has to satisfy whether there is sufficient
ground for proceeding and not whether there is sufficient ground
for conviction. Whether the evidence is adequate for supporting
the conviction can be determined only at the trial stage and not
at the stage of investigation or even at the stage of submission
of charge sheet. The Court is not required to go into a detail
discussion of the merits or demerits of the case so as to find out
if the allegations and the charges are true or not. Adequacy of
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the evidence will not be seen by the Court at the stage of taking
cognizance but the Court should keep in mind that judicial
process is not misutilized as an instrument of opposition or
needless harassment.
While invoking its inherent powers under section 482
of Cr.P.C. to quash a criminal proceeding, the High Court has to
strictly confine itself to the allegations made in the first
information report and charge sheet. A mini trial at that stage is
impermissible. The powers possessed by the High Court under
section 482 of the Code are very wide and the very plenitude of
the power requires great caution in its exercise. Court must be
careful to see that its decision in exercise of this power is based
on sound principles. The inherent powers should not be exercised
to stifle a legitimate prosecution. The High Court being the
highest Court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so, when the evidence has not been
collected and produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. In the case of
State of Haryana -Vrs.- Ch. Bhajan Lal reported in A.I.R.
1992 S.C. 604, it is held that the inherent powers under section
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482 of Cr.P.C. has to be exercised either to prevent abuse of
process of any Court or otherwise to secure the ends of justice.
If the allegations made in the first information report and charge
sheet, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence against
the accused or the criminal proceeding is manifestly attended
with mala fide or maliciously instituted with an ulterior motive for
wreaking vengeance on the accused or with a view to spite him
due to private and personal grudge, the High Court can exercise
its inherent powers to prevent abuse of process and to secure
ends of justice. It should not be forgotten that criminal
prosecution is a serious matter as it affects the liberty of a
person. No greater damage can be done to the reputation of a
person than dragging him in a criminal case.
9. The investigating officer is required to act
fairly, impartially and reasonably and conduct a thorough
investigation without bias or prejudice. While analysing the
materials available on record, it appears that the petitioner had
got the net income to acquire the assets standing in her name
and there were no excess assets possessed by her which can be
said to have come to her from her son. The investigating officer
seems to have acted in a very casual manner and has submitted
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charge sheet against the petitioner without any clinching
material that the petitioner abetted her son or made any
conspiracy or instigated in the alleged acquisition of
disproportionate assets by her son.
In view of the foregoing discussions, I am of the
humble view that the impugned order passed by the learned
Special Judge (Vigilance), Berhampur in taking cognizance of
offence and issuing process against the petitioner is not
sustainable in the eye of law and the same is hereby set aside.
Anything said or any observation made in this
judgment shall not influence the mind of the learned trial Court
to adjudicate the trial in respect of the co-accused persons in
accordance with law.
Accordingly, the CRLMC application is allowed.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 4th September 2019/Sisir/Sukanta