Orissa High Court
Bimal Prasanna Acharya vs State Of Odisha Vigilance on 12 January, 2018
Equivalent citations: AIRONLINE 2018 ORI 123
Author: J.P. Das
Bench: J.P. Das
ORISSA HIGH COURT, CUTTACK.
CRIMINAL REVISION. No. 850 OF 2017
(This is an application under Sections 397 & 401 of Code of
Criminal Procedure Code)
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Bimal Prasanna Acharya ....... Petitioner.
-versus-
State of Odisha,Vigilance ....... Opp-Party.
For Petitioner : M/s. A.K. Parija,,
T.P.Mohapatra
For Opposite Party : Mr. N.C.Panigrahi,
Senior Standing Counsel
(Vigilance)
PRESENT:
THE HONOURABLE SHRI JUSTICE J.P. DAS
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Date of Hearing : 19.12.2017 Date of Judgment :12.01.2018
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J.P.Das, J The petitioner in this application assails the
order dated 13.06.2017 passed by the learned Special
Judge, Vigilance, Keonjhar in V.G.R. Case No.05 of
2013 arising out of Balasore P.S. Case No.30 of 2013
framing charges against the petitioner for the offences
punishable under Section 13 (2) read with Section
13(1(c)(d) of the Prevention of Corruption Act, 1988 and
Sections 409/379/420/468/411/120-B of the Indian
Penal Code with the submissions that there being
absolutely no material on record placed on behalf of
2
the prosecution against the petitioner to make out a
prima-facie case for the alleged offences, the learned
trial court has erroneously framed the charges without
application of judicial mind.
2. The factual backdrop of the case is that on
an application made by one Bijaya Kishore Mohanty for
mining lease of iron ore, manganese and other
minerals, it was granted in his favour by the
Government of Odisha, Mining and Geology
Department vide proceedings dated 07.01.1982 over an
area of 56.94 hectres or 140.70 acres in village Uliburu
under Barbil Tahasil of Keonjhar district for a period of
twenty years. The Lease Deed was executed on
13.12.1983with validity till 12.12.2003. Surface right over an area of 69.78 acres was obtained from the Collector, Keonjhar and possession thereof was delivered to the lessee Sri B.K. Mohanty on 27.02.1984. Sri B.K.Mohanty made an application in the year 1999 to the Government of Odisha to surrender his mining lease due to depletion of saleable grade ores. Again Sri Mohanty filed an application on 14.05.2002 to withdraw his such earlier surrender application. As the same was not accepted, Sri Mohanty again filed an application for surrender on 25.03.2003. Thereafter, Sri Mohanty filed another 3 application before the Collector, Keonjhar for renewal of his mining lease on 03.12.2003 which was forwarded by the Collector to the Deputy Director of Mines, Joda, D.F.O, Keonjhar and Tahsildar, Barbil in his letter dated 05.01.2004 for furnishing their enquiry reports. Pending granting of renewal of mining lease, said Sri B.K.Mohanty executed a registered Power of Attorney on 29.12.2003 for mining and trading minerals of his mines in favour of M/s Sneha Puspa Marketing Private Limited duly represented through its Director Sri Deepak Gupta.
3. In response to the letter of Collector, Keonjhar a report was submitted by Tahasildar, Barbil on 27.09.2007 that the area for which lease had been applied, included 11 acres of forest land besides private land and government land. It is the specific allegation of the prosecution that the present petitioner who was working as Assistant Conservator of Forest, Keonjhar, sent a letter from the office of D.F.O under his signature on 23.02.2008 that the area for which mining lease has been applied for consists of 11 acres of forest land and it attracts the provision of Forest Conservation Act,1980. Hence, prior approval of the Government of India would be required for granting of the lease.
44. It was further found out in course of investigation that one Sri Jagdish Mishra was granted with mining lease for iron ore over an area of 75.40 acres for a period of thirty years with effect from 28.09.1981, but due to want of forest clearance and other formalities, the lease was non-working from the date of execution. He further intimated the concerned authorities that accordingly the lease has lapsed with the Government but lot of illegal mining and ores lifting were going on in the area for which he requested the Deputy Director of Mines, to take necessary action in the matter. The Deputy Director also informed Sri B.K.Mohanty about the allegations made by Jagdish Mishra that Sri B.K.Mohanty had encroached upon an area of 30.513 hectres of the lease area of said Jagdish Mishra. Both Sri B.K. Mohanty and Sri Jagdish Mishra were called to remain present for demarcation of the boundary line but Sri Jagdish Mishra did not attend the enquiry on the date. On the otherhand, Sri Jagdish Mishra executed one Power of Attorney on 17.04.2004 in favour of the same M/s Sneha Puspa Marketing Private Limited represented through its Director Sri Deepak Gupta to manage his mines, etc.. The said Deepak Gupta applied for renewal of mining lease in respect of the lease granted in favour of said Jagdish 5 Mishra on 25.09.2010 even though the mining lease was not in existence by then. In the month of April, 2012 on joint verification conducted by the mining as well as forest and revenue officials, it was found out that illegal mining operation was going on over a huge area including the forest land. The forest pillars had been shifted and the mining activities had been done outside the lease area of Sri B.K.Mohanty and no mining operation was carried out within the area of Sri B.K.Mohanty except having some quarters. It was also found out that illegal mining has been done in an area of 20.62 acres in Uliburu Reserve Forest along with the common boundary of the lapsed lease area of Jagdish Mishra.
5. It was found out that the illegal mining activities of the lessees and the Power of Attorney Holder Sri Deepak Gupta continued for a long time spreading over a period of about six years from 2004- 2009. It is alleged that the illegal operation continued within the knowledge of the mining officials as well as the forest and revenue officials causing a huge loss of about Rs.1523,59,48,527.48 Paise to the State exchequer. It is further alleged that the present petitioner was working as Assistant Conservator of Forest, Keonjhar during the period of 14.08.2006 to 6 05.01.2009 and hence, the illegal mining activities was within his knowledge or should have come to his knowledge if he would have made a field verification during these years. It has been alleged that regular verification of the forest land and boundary are the statutory jobs of the petitioner as a forest official but it was not done facilitating the illegal activities of the lessees.
6. It has been specifically alleged against the present petitioner that the renewal of lease application dated 03.12.2003 of Sri B.K.Mohanty was received in the Office of D.F.O., Keonjhar on 07.01.2004 for submission of enquiry report from the forest point of view. The same was pending till 2008 for want of final verification of the Range Officer, Barbil. But, it was found out that the present petitioner who was A.C.F, Keonjhar without conducting the field verification either by himself or by any supporting officers Barbil, submitted enquiry report on 23.02.2008 only on the basis of the land schedule furnished by the lessees, wherein he had mentioned that there was eleven acres of village forest within the lease hold area which needs submission of dereservation proposal. It is alleged that the present petitioner without any field verification submitted the report which facilitated the Power of 7 Attorney Holder of the lessees to carry out the illegal activities.
7. It was submitted by learned Senior Counsel appearing for the petitioner that even admitting prosecution allegation on its face value, the petitioner had committed no offence since as per his report the proposed lease area consisted of 11 acres of forest land and he also mentioned that for renewal of lease necessary permission of the Government of India is necessary. It was further submitted that it is not the case of the prosecution that there was more forest land within the area than what has been submitted by the petitioner and excepting the said report submitted by the petitioner there is absolutely no material on record to implicate the petitioner for the alleged offences. It was also submitted that the submission of report was pending since 2004 and the petitioner by submitting the report in 2008 had committed no illegality moreso when he had mentioned the specific fact of existence of forest land. Thus, it was submitted that the petitioner has been arrayed as an accused mechanically by the Investigating Agency and the learned Trial court without application of judicial mind has framed the charges as said hereinbefore.
88. Learned Senior Counsel appearing on behalf of the State, Vigilance, submitted that the petitioner has been arrayed as an accused not only for the letter submitted by him but also for the allegation that the illegal mining operation was going on in Uliburu Reserve Forest area for a period of about five years and the petitioner failed to perform his statutory duties in verifying the same, which could have been detected if the petitioner would have made field verification. It was further submitted that due to failure in performing their statutory duties by the concerned government officials or for their negligence huge loss has been caused to the State exchequer besides illegal lifting and transportation of mining ores from the State. Learned Senior Counsel also submitted that there has been no illegality in framing of charges for all the offences against the petitioner since there is an offence under Section 120-B of the Indian Penal Code implicating the petitioner for being a member of the criminal conspiracy in committing the alleged offences. The learned Senior Counsel for the State, Vigilance, also placed before the Court the details of the allegations found out in course of investigation against the present petitioner as well as other government officials during a long period of about more than five years facilitating 9 the illegal mining operations in the area having no valid license for the purpose.
9. It is not disputed that the petitioner has been charged under Section 120-B of the I.P.C along with other offences. The criminal conspiracy has been defined in Section 120-A of the Indian Penal Code which is quoted below:
" When two or more persons agree to do, or cause to be done-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object It has been specifically mentioned in the explanation that it is immaterial whether the illegal act is ultimate object of such agreement or is merely incidental to that object. In the case at hand, even if it is accepted for a moment that no direct involvement of the petitioner has been found out in the illegal mining activities, still 10 other allegations like failure in performing statutory duties and submission of a report without field verification have been made against him. As it was submitted on behalf of the State, Vigilance, even though the submission of report was pending since 2004, the petitioner submitted the same in the year 2008 without any field verification which shows his interestedness to favour the renewal of lease applied for by the Power of Attorney Holder.
10. However, the submissions made on behalf of the petitioner and the counter submissions made on behalf of the State, Vigilance, are the matters to be thrashed out in course of trial and at this stage it cannot be said that the charges have been framed illegally for the reason that the petitioner stands charged under Section 120-B of the I.P.C along with other offences.
In the result, the present revision application stands dismissed for being devoid of any merit.
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J.P. Das, J.
Orissa High Court, Cuttack Dated 12th January , 2018/ Lingaraj 11