Orissa High Court
T. Prasad Rao Dora vs State Of Odisha (Vigilance) .... ... on 23 February, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.694 of 2023
T. Prasad Rao Dora .... Petitioners
Mr. Gokulananda Mohapatra, Advocate
-Versus-
State of Odisha (Vigilance) .... Opposite Party
Mrs. J. Tripathy,
Additional Standing Counsel for the Vigilance Department
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
23.02.2023 Order No.
03. 1. Heard Mr. Mohapatra, learned counsel for the petitioner and learned counsel for the opposite party-State (Vigilance Department).
2. Instant petition under Section 482 Cr.P.C. is at the behest of the petitioner assailing the impugned order dated 31st January, 2023 under Annexure-2 passed in T.R. Case No. 08 of 2015 pending in the file of learned Special Judge (Vigilance), Bhubaneswar on the grounds stated therein.
3. A copy of the impugned order dated 31st January, 2023 is at Annexure-2.
4. In fact, the petitioner had moved the learned Special Court with an application under Section 239 Cr.P.C. seeking discharge. The said application was filed on 3rd January, 2023. On the date fixed i.e. 31st January, 2023, the application under Section 239 Page 1 of 5 Cr.P.C was considered and the impugned order under Annexure-2 was passed.
5. Mr. Mohapatra, learned counsel for the petitioner submits that learned Court below in a mechanical manner and without considering the application filed under Section 239 Cr.P.C. on merit, disposed it of vide Annexure-3 with the observation that a similar application moved earlier was disposed of on 3rd September, 2018. It is also submitted that the learned Court below in absence of the petitioner, rejected the application under Section 239 Cr.P.C. and thereafter, proceeded to issue a non-bailable warrant of arrest against him which was not even recalled.
6. The contention of Mr. Mohapatra, learned counsel for the petitioner is that though on an earlier occasion, application for discharge under Section 239 Cr.P.C. was moved, however, on the ground that a Vigilance prosecution cannot stand for the reason stated, fresh application was filed and it was to be considered on merit, however, the learned court below did not provide any opportunity and disposed it of during the 1st hour of the court's business when normally such matters are taken up at 2.00 P.M. It is submitted that on the very same day during the 2nd hour, a petition under Section 317 Cr.P.C. was moved but unfortunately, the same was not entertained on the ground that since NBWA had already been issued by then, there is no power to recall the order thereby declined to interfere with it which is not only unjustified but also untenable in law.
7. While contending so, Mr. Mohapatra, learned counsel for the petitioner refers to the provisions of GRCO (Criminal) Volume-1 to satisfy the Court that such a miscellaneous matter was to be placed for hearing at 2.00 P.M. but for the reasons best known to the learned court below, it was taken up at 1.00 P.M. and Page 2 of 5 thereafter, the impugned order under Annexure-2 was passed. It is contended that since an application under Section 317 Cr.P.C. was filed, it should have been entertained and furthermore, the impugned order of issuance of NBWA would have been recalled which was denied on the ground that it does not have the power to do so. Mr. Mohapatra, learned counsel for the petitioner lastly submits that the learned court below should not have issued NBWA against the petitioner in first place and in that respect, a decision of the Supreme Court in Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others in Appeal (Crl.) 1392 of 2007 decided and disposed of on 9th October, 2007 is referred to.
8. On the other hand, learned counsel for the Vigilance Department-opposite party submits that the impugned order dated 31st January, 2023 is justified and in accordance with law and a similar application under Section 239 Cr.P.C was filed before and disposed of and that apart, at the time of framing of charge, the petitioner was absent.
9. Gone through the impugned order i.e. Annexure-2.
10. Indeed, an application under Section 317 Cr.P.C. was moved before the learned Court below. A copy of the said application is at Annexure-1. It is made to appear that a recall application dated 31st January, 2023 was also filed by the petitioner.
11. Copy of the application for recall is at Annexure -3.
12. This Court finds that the application under Section 239 Cr.P.C. was taken up during the 1st hour and thereafter, the impugned order was passed. Furthermore, after lunch break, at 2.00 P.M., application under Section 317 Cr.P.C was moved under Annexure-3 but the same was rejected.
Page 3 of 513. In the considered view of the Court, the learned court below ought to have provided an opportunity of hearing to the petitioner and should have recalled the impugned order dated 31st January, 2023 passed in the 1st hour in order to facilitate a decision on merit. Nevertheless, an application is stated to have been filed earlier seeking discharge under Section 239 Cr.P.C and disposed of. However, since the application was moved by the petitioner on a fresh ground, it should have been heard and decided on merit with the opportunity provided to him.
14. The Court is further of the view that the learned court below in such a situation should not have issued NBWA against the petitioner as he appeared thereafter post-lunch and applied for exemption under Section 317 Cr.P.C. The learned Court below though issued NBWA in absence of the petitioner and also the conducting counsel on his behalf but on the application under Section 317 Cr.P.C. moved later on, it should have recalled NBWA and further proceeded to hear the application for discharge. Keeping in view the observation in Inder Mohan Goswami (supra), the Court is also of the view that even though the petitioner was found absent and thereafter the coercive action was taken, which the learned court below ought not to have done straightaway but instead should have issued a bailable warrant if at all felt so but nevertheless on receiving of the applications under Annexures-1&3, it could have recalled the said order. It is well settled in law that each and every court despite absence of any specific provision does possess inherent power to recall an order in a situation like the present.
15. In such view of the matter, the Court is of the view that the application under Section 239 Cr.P.C should be restored to file for a decision on merit by providing an opportunity of hearing to the Page 4 of 5 petitioner and for the said purpose, NBWA issued by the learned court below needs to be recalled.
16. Accordingly, it is ordered.
17. In the result, the CRLMC stands allowed. Consequently, the impugned order under Annexure-2 passed in T.R. Case No. 8 of 2015 by the learned Special Judge (Vigilance), Bhubaneswar is hereby quashed with the consequential direction to consider the application under Section 239 Cr.P.C. filed by the petitioner and to pass order on merit. Furthermore, the NBWA issued by the learned court below against the petitioner is hereby recalled. Since the application under Section 239 Cr.P.C. is restored to file, learned Special Court is directed to pass a reasoned order thereon after hearing both the sides.
18. A certified copy of this order be granted as per rules.
(R.K. Pattanaik) Judge Balaram Page 5 of 5