Orissa High Court
Nrusingha Charan Swain vs State Of Odisha (Vigilance) .... Opp. ... on 8 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.186 of 2025
Nrusingha Charan Swain .... Petitioner(s)
Mr. B. K. Ragada, Advocate
-versus-
State of Odisha (Vigilance) .... Opp. Party(s)
Mr. S. Das, SC (Vigilance)
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
08.04.2025 I.A. No.229 of 2025 Order No.
01. 1. This I.A. has been filed by the petitioner for condonation of delay of 28 days in filing the CRLREV.
2. For the reason stated in the application, the delay of 28 days in filing the CRLREV stands condoned.
3. Accordingly, the I.A. is disposed of.
(S.S. Mishra) Judge CRLREV No.186 of 2025 Order No.
02. 1. Heard Mr. Ragada, learned counsel for the petitioner and Mr. Das, learned Standing Counsel for the Vigilance Department.
Page 1 of 82. The petitioner is aggrieved by the order dated 10.09.2024 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.36 of 2017, whereby his application under Section 239 Cr.P.C seeking discharge has been rejected. Therefore, he has preferred this Revision Petition. The petitioner herein is the Land Accusation Officer, Major Industrial Project (MIP), Jagatsinghpur.
3. Mr. Ragada, learned counsel for the petitioner submits that against four accused persons charge-sheet was filed in the present case on 14.09.2015 for the alleged commission of offences punishable under Sections 13(2)/13(1)(d) of the P.C. Act read with Sections 419/420/120-B of I.P.C. After the charge-sheet was filed, two of the accused persons namely Susanta Kumar Swain and Rabindra Kumar Lenka have expired. In so far as the other co-
accused namely Arun Kumar Mohanty is concerned, he has preferred a Revision Petition against the order of charge, which has been allowed by this Court vide a detailed judgment dated 29.01.2025 in CRLREV No.722 of 2024 in the case of Arun Kumar Mohanty vrs. State of Odisha (Vigilance). He has emphasized paragraphs- 10, 16 & 17 of the said judgment, which reads as under:-
"10. Mr. Das, learned counsel for the petitioner reiterating the admitted facts of the present case and Page 2 of 8 has submitted that out of four accused persons, two of them have already expired and the petitioner and one Nrusingha Charan Swain is facing the trial. By narrating the facts of the present case, he submits that from the conduct of the petitioner, no mens rea could be established. Therefore, the criminal liability cannot be foisted upon him. Moreover, there is no loss caused to the ex-chequer or for that matter to the informant. The award amount received by him has already been returned on indemnification. Therefore, a conduct of a person poised with good faith and bona fide believe does not attract any criminal offence. The petitioner has only received the award amount as the notice was issued to him by the LAO, Jagatsinghpur. The name, parentage, age and address of the present petitioner and the informant are resembles without any variation. Therefore, this would be at best a case of mistaken identity.
16. On the careful scrutiny of the documents placed on record, it is apparent that the present case is basically a civil dispute of claim of the award amount having somewhat criminal facet. The only question to be ferret out from the facts of the case is that whether the petitioner has acted in good faith while accepting the award amount or he had intention to usurp someone's genuine claim having knowing the same does not belong to him. Feeling tempted by money is a natural human response, not a crime. Key is how one manages the temptation. Money is power, which is deeply ingrained human desire. Desire itself is neutral, action, determines the moral and the legal implication. Question is whether with integrity or by compromising morally or legally the temptation is managed? The question of good faith must be considered with reference to the position of the accused and the circumstances under which he has acted upon. In law, it is not expected the same standard of care and attention from all persons regardless of the position they occupied in so far as good faith is concerned. In this case "good faith" can be read into the conduct of the petitioner because it is admitted that the name, parentage, age and address unambiguously resembles with the name, parentage, age and address of the complainant. Therefore, the Page 3 of 8 confusion was obvious. In the said scenario, the only inference that could be drawn is that the petitioner has availed the benefit of the award by good faith and subsequently he has returned once he came to know regarding the genuine claim of the complainant. Returning money especially when it was received mistakenly or unfairly demonstrates bona fide. It not only reflects honesty but also a sense of ethical responsibility. In legal and moral context, such action strengthen trust and shows that person has no intention of wrongful gain. Even in Bhagavad Gita, it is said "Realisation of guilt followed by sincere repentance and devotion leads to redemption and peace." In this context, the Hon'ble Supreme Court provided valuable insights in the case of Raj Kapoor Vs. Laxman reported in AIR 1980 SC 605 held thus, "The argument is irresistible that if the performance of the act which constitutes the offence is justified by law, i.e. by some other provision, then Section 79 exonerates the doer because the act ceases to be an offence. Likewise, if the act were done by one "who by reason of a mistake of fact in good faith believes himself to be justified by law in doing it" then also, the exception operates and the bona fide belief, although mistaken, eliminates the culpability."
17. In that view of the matter, the petitioner is not only protected by the provision of Section 79 of I.P.C. but also the case of the petitioner is covered by the judgment cited at Bar. Therefore, I am of the considered view that the petition deserves merit."
By relying upon the said judgment, the petitioner seeks indulgence of this Court by way of quashing the entire criminal case against the petitioner.
4. I have gone through the discharge application moved by the present petitioner before the court below. Averment made in Pargraph-3 of the Page 4 of 8 discharge petition assumes importance for the purpose of the present petition, which reads as under:-
"3. That section 19 of the P C Act and 197 of the IPC envisage necessity of previous sanction against a public servant for prosecution. Since the Government refused to accord sanction no prosecution can be launched therefore the investigating officer has rightly not submitted Charge Sheet against him."
5. It is an admitted case on record that the Competent Authority has not accorded sanction to prosecute the present petitioner. The learned Special Judge (Vigilance), Cuttack while dealing with the point of sanction has inter alia concluded as under:-
"On a perusal of the case record it reveals that basing upon the written report of the informant-S.K. Sahoo, Inspector, Vigilance, Jagatsinghpur Vigilance Unit, Cuttack Vigilance P.S. Case No.86 dt. 31.12.2012 has been registered for the offence U/s. 13(2) r/w section 13(1)(d) of Prevention of Corruption Act, 1988 and section 468, 471, 419, 420, 120-B of I.P.C. on the allegation regarding misappropriation of government money by way of preparation of forged and fabricated documents causing wrongful loss to the beneficiary and show of undue official favour by the officials of Special Land Acquisition Officer, Major Industrial Project, Jagatsinghpur. After completion of investigation charge sheet has been submitted for the offence U/s. 13(2) r/w section 13(1)(d) of Prevention of Corruption Act, 1988 and section-419, 420, 120-B of I.P.C. against three accused persons excluding the accused- petitioner. Admittedly the Government has been pleased not to issue sanction for prosecution against the present accused. Subsequently this Court after going through the materials available in the case record took cognizance of offence U/s. 419, 420, 120-B of IPC vide order dt. 21.08.2017.
The accused petitioner has presented this petition for his discharge on the plea that in absence of sanction order when the final form has been submitted against the Page 5 of 8 accused, the order of cognizance for the offence U/s. 419, 420, 120-B of IPC as taken vide order dt21.08.2017 is bad in law."
Law is well settled that this Court has no jurisdiction to review or recall its own order. In the case of Adalat Prasad Vrs Rooplal Jindal and others reported in (2004) 29 OCR (SC) 264 the Hon'ble Apex Court have held that magistrate has no power to recall the order of taking cognizance and issuance of process. In para-15 the Hon'ble Court have observed "it is true that if a magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of section- 200 and 202, the order of magistrate may be vitiated, but then the relief, an aggrieved accused can obtain at any stage is not by invoking section-303 of the Code because the criminal procedure code does not contemplate a review of an order. Similarly, in the case of Ghanshyam Das Vrs Cuttack Municipality 1978 Cr.L.J 1310 (Orissa) it has been observed by the Hon'ble Court. "5. At the outset it must be stated that unlike a Civil Court, a Criminal Court other than a High Court does not possess any inherent powers. Under section 482 Cr.P.C. the High Court alone has inherent power to rectify injustice and prevent abuse of process of the Court. Therefore, a petition under section 482 Cr.P.C did not lie to the Magistrate. I am fortified of this view by another decision of Supreme Court in the case of Bindeswari Prasad Singh Vrs Kali Singh 1977 SCC (Cri) 33: 1978 Crl. L.J 187 wherein it was held as follows (at p.188 of 1978 Crl L.J).
...there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure does not contain a provision for inherent powers, namely, Section- 561 -A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate Criminal Courts have no inherent powers..."
The Hon'ble Apex Court in the case of Devendra Kishanlal Dagalia Vrs Dwarkesh Diamonds Pvt Limited reported in (2014) 2 SCC 246 have held "Once the Magistrate taking cognizance of an offence forms his Page 6 of 8 opinion that there is sufficient ground for proceeding and issues summons under section-204 Cr.P.C, there is no question of going back following the procedure under section 201 CrP.C. Similarly in the case of Mohammed Zakir Vrs Shabana and others passed in Criminal Appeal No.926 of 2018 arising from SLP CRL No. 10102 of 2017 decided on 23.07.2018 the Hon'ble Court have held that the criminal court has no power to recall its own order even if it is patently erroneous. Hence, in absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking section-482 of the CrPC.
In this view of the matter. I find no legal force in the petition for discharge as advanced from the side of accused, Nrusingha Charan Swain. Accordingly, the petition dt. 12.08.2024 stands rejected. Put up later for passing appropriate order in respect of the status of other accused persons.
6. Mr. Das, learned Standing Counsel for the Vigilance Department submits that in so far as the issue of not according sanction to prosecute the petitioner is concerned, he is not in a position to dispute the same.
Therefore, in the present case, in absence of proper sanction being accorded by the competent authority to prosecute the petitioner, the learned trial Court ought not to have taken cognizance of the offences. Moreover, the co-
accused, who is the principal accused in the present case namely Arun Kumar Mohanty has been discharged by a detailed judgment of this Court in CRLREV No.722 of 2024.
7. Regard being had to the submission made by the parties at the Bar, I am inclined to allow this petition. Moreover, besides the judgment of this Court in Arun Kumar Mohanty (supra), the petitioner's case is directly Page 7 of 8 covered by the judgment of the Hon'ble Supreme Court in the cases of Gian Singh vs. State of Punjab and another reported in 2012 (10) SCC 303 and B.S. Joshi & others vs. State of Haryana & another reported in (2003) 4 SCC 675. Therefore, the petition deserves merit.
Accordingly, the order dated 10.09.2024 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.36 of 2017 is quashed and the petitioner is discharged from all the charges, he was charge-sheeted for.
8. With this observation, the CRLREV is disposed of.
(S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-Apr-2025 11:10:26 Page 8 of 8