Orissa High Court
Binaya Bhashan Kumar Biswasi vs State Of Orissa (Vigilance) ......... ... on 7 October, 2013
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
CRLMC No. 3033 of 2011
In the matter of an application under Section 482 of the Code of Criminal
Procedure.
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Binaya Bhashan Kumar Biswasi ......... Petitioners
-versus-
State of Orissa (Vigilance) ......... Opposite Party
For petitioner : M/s. H.M. Dhal, B.B. Swain &
A.K. Pattnayak.
For opp. parties : Mr. P.K. Pani, Addl. Standing Counsel
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing:17.09.2013 & Date of Judgment: 07.10.2013
Dr. B.R.Sarangi, J.The petitioner invoking the jurisdiction under Section 482 Cr.P.C. files this application assailing the order dated 04.01.2010 passed by the learned Special Judge (Vigilance), Jeypore in Berhampur Vigilance P.S. Case NO.27 dated 23.07.2001 corresponding to G.R. Case No.27 of 2001(V) taking cognizance of the offence under Sections 471/477-A/120-B I.P.C. read with Section 27 of the Orissa Forest Act.
2. The fact as revealed from the F.I.R. under Annexure-1 lodged by the Inspector of Police (Vigilance Cell Cuttack) is that on the allegation of large scale illicit felling of live trees and clandestine transportation of 2 timber from the Jeypore Forest Division to Andhra Pradesh by M/s Keshari Traders, a private contractor, appointed as Raw Materials Procurer (RMP) by the Managing Director, Orissa Forest Development Corporation Limited, Bhubaneswar (OFDC) pursuant to the order of the State Government in the Forest and Environment Department to salvage wind fallen timber from Chitrakonda and Kalimela Ranges of the Division. During enquiry, it was ascertained that the State Government had imposed total moratorium on felling of standing trees. Only OFDC was authorized to salvage wind fallen trees. In other words, there was ban on functioning of private contractors in the forest area as a matter of policy. In violation of the policy, M/s Keshari Traders was illegally appointed as RMP for transportation of salvaged timber from the forest floor to the Depot of the OFDC. On the strength of such appointment, RMP was allowed to take away not only salvaged timber but also live timber without paying the sale value as a result of which State was put to loss of Rs.34,80,755/- approximately. In course of enquiry, a high level Joint Enquiry Committee verified the allegations. On the basis of F.I.R., a case was registered against the petitioner and co-accused persons for alleged commission of offences under Sections 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act (for short the „P.C. Act‟) and under Section 471/477-A/120-B of the Indian Penal Code (for short the „I.P.C.‟) as well as Section 27 of the Orissa Forest Act (for short the „O.F. Act‟). During investigation, witnesses were examined and a large number of documents including joint verification report of the Vigilance Department were seized. On completion of investigation, charge sheet for commission of aforesaid offences was submitted against the petitioner and 17 others.
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3. Mr. H.M. Dhal, learned counsel appearing for the petitioner strenuously urged that so far as the present petitioner is concerned he has been implicated falsely. According to him, even if the entire materials available on record are accepted, no offence is made out against him. In absence of any prima facie case against the petitioner, the initiation of proceeding amounts to abuse of the process of the Court. In order to substantiate his contention, he specifically urged that the petitioner joined as Assistant Conservator of Forest (A.C.F.) on 31.03.2000 at Malkangiri by which time the Salvage operation had already been completed. Therefore, by no stretch of imagination, can it be said that the petitioner is liable for any offence alleged in the F.I.R. Apart from the same, he further contended that a Departmental Proceeding has been initiated by the State Government and while passing final order in the said proceeding a specific finding has been recorded in Annexure-10 that the entire felling of trees has been completed before the petitioner joined in the post. Therefore, due to non-availability of materials on the record and by the time the petitioner joined in the post, the Salvage operation having been over, the very initiation of proceeding against the petitioner is vitiated. Therefore, learned counsel seeks for quashing the proceeding so far as it relates to the petitioner.
4. Mr. Pani, learned Additional Standing Counsel for the Vigilance Department, strenuously refuted the contention raised by the learned counsel for the petitioner and stated that during investigation the investigating officer examined several persons those were acquainted with the fact of the case and also members of task force constituted by the 4 State Government to enquire into the said scam. In course of investigation, Ashish Kumar Behera, Deputy Conservator of Forest deposed in his Section 161 Cr.P.C. statement that in the enumeration list the concerned Forester, Range Officer as well as A.C.F. had shown that all the trees were wind fallen and dried but during the course of field inspection, it was observed from the condition of the stumps and logs that almost all the trees were actually green standing trees and were felled by the axe. Shasi Bhusan Samanta, another Conservator of Forest had stated in his statement that he also found the A.C.F., Malkangiri and the Range Officer, Kalimela and Chitrakonda had committed the irregularities such as (a) A.C.F., Malkangiri countersigned for availability of 105 CUM of timber in Kalimela Range that was increased to 380 CUM in the co-ordination meeting (b) A.C.F., Malkangiri simply countersigned enumeration list without specific checking. Only two trees he has specifically checked and he has also allowed enumeration of green, girdled standing trees in violation of the Government Order for undue benefit to the RMP (c) A.C.F. Malkangiri was asked to check 10.30% of conversion and to give a certificate to that effect. The five areas for which conversion-cum-passing lists were submitted, are situated at far of places. The A.C.F. had only toured on one day on 18.04.2000 and submitted false certificate without checking the materials in the field. Apart from the same, Suratha Chandra Nayak, the Forester stated in his statement that on 17.04.2000 the petitioner had been to his area and checked the passing list. Accompanying with him, the Forester showed him the stumps of the cut trees. He further stated that any forest officer could know whether, the trees which were cut and fallen on the ground are dry trees or up-rooted trees or cut trees. But the petitioner approved the 5 passing list without any remark and directed Mr. Dalei for lifting the same. Therefore, since prima facie materials are available against the petitioner, the proceeding may not be quashed. In support of his contention, he relies upon the judgements of the apex Court reported in Hariam Satpathy V. Tikaram Agarwal and others, AIR 1978 SC 1568 and K. Neelaveni v. State Represented by Inspector of Police and Ors, (2010) 46 OCR (SC) 75 Para-11
5. From the materials available on record, it is found that in the year 1998 M/s. Keshari Traders filed an application to act as RMP in the forest of Kalimela and Chitrakonda Range. The role of a RMP was just as a labour contractor who is supposed to extract the wind fallen trees from the forest floor to the OFDC depot. The authorities issued the order on 27.12.1999 under Annexure-2 appointing M/s. Keshari Traders as Raw Material Procurer incorporating the royalty component as a result it became both salvager and owner of the timber salvaged which afforded scope for illicit felling of green trees and lifting the same from the forest area. This decision was taken by the Government in Forest Department in consultation with the OFDC authorities. As it reveals, the petitioner has no role in the appointment of M/s. Kesari Traders as Raw Material Procurer which is a private contractor. The salvage operation undertaken for the period 1999-2000 completed on 31.03.2000 A.N. Therefore, it appears that the appointment of RMP and the undertaking of salvage operation was prior to the joining of the petitioner as A.C.F., Malkangiri. Therefore, the petitioner has no role to play in the matter of appointment and salvage operation as he joined after such date.
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6. Learned Additional Standing Counsel for the Vigilance Department admits that by the time the petitioner joined as A.C.F., Malkangiri the period of salvage operation had already been over.
7. The process of salvage operation includes (i) Estimation (ii) Enumeration (iii) Test Check of Enumerated Trees (iv) Conversion & (v) passing. After these stages are completed issue of T.T. permit is a mere formality. In the case at hand after estimation the enumerated list was submitted on 29.02.2000 and the Test Check of Enumerated list was submitted on 05.03.2000 by the erstwhile A.C.F. and Test Check report was submitted on 14.03.2000 and thereafter, conversion was undertaken and passing was completed by 30.03.2000. All these events took place prior to joining of the petitioner as A.C.F. on 31.03.2000(A.N.). This clearly reveals that the petitioner has not played any role at any stage of salvage operation question in order to bring home the charges leveled against him.
8. The allegation with regard to RMP indulged in illicit felling of standing trees is concerned no material is available to show that the petitioner was in any way connected with the same. The charge sheet which was submitted by the Vigilance Department after thorough investigation does not disclose any evidence oral or documentary, direct or circumstantial implicating the petitioner in the commission of alleged crime. There is no whisper that the petitioner has done any act or omissions which will constitute any of the offences. Merely, because a person was holding a particular post that by itself would not be sufficient to arraign him as an 7 accused unless the overt act committed by him falls within the mischief of the offence alleged.
9. On close scrutiny of the charge-sheet submitted, I am of the opinion that it does not make out as to exactly what offence has been committed by the petitioner. On the contrary, the case has been instituted pursuant to the enquiry-cum-joint verification made by the Vigilance authorities on making spot visits on different dates and the report in which it is stated that the stumps were all dry and old, were bent inclined showing that those were fallen naturally and most of the standing trees have been cut in Podu area by Podu cultivator and set on fire. The corresponding stumps and most of the logs have been burnt. These findings completely negative the allegation of any kind of illicit felling of live/green trees. There is no material available on record against the petitioner that either he used any forged document as genuine or has he done any overt act willfully for falsification of accounts. Since, there is no iota of evidence that the petitioner has done anything which can be construed as falsification of accounts or use of forged documents the entire allegations so far as offence under Sections 471/477-A I.P.C. is concerned are baseless and as such no case is made out against the petitioner.
10. So far as charge under Section 120-B IPC the criminal conspiracy is concerned, the basic ingredient is the prior meeting of mind. In absence of any material, Section 120-B IPC can not be attributable to the petitioner.
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11. Section 13 (1) (d) of the P.C. Act is concerned, it contains three independent clauses (i) the accused should be a public servant (ii) the accused should use some corrupt or illegal means or otherwise abuse his position as a public servant (iii) the accused should have thereby obtained valuable thing or pecuniary advantage for himself or for any other person. No doubt, the petitioner is a public servant but other ingredients so far as specific requirements of Section 13 (1)(d) of P.C. Act is concerned, are not available on record to establish the prima-facie offence against him. Therefore, in absence of any material available on record constituting an offence, continuation of the proceeding would be an abuse of the process of Court.
12. The reliance placed on the statements made by some of three witnesses, namely, Paramatma Sing, Sasi Bhusan Samanta and Suratha Chandra Nayak are concerned, it is found that Paramatma Sing and Sasi Bhusan Samanta are charge-sheeted witnesses being witness nos. 14 and 21 and their statements are general and omnibus in nature without making any allegation against the petitioner. So far as Suratha Chandra Nayak is concerned, on whose statement much emphasis has been laid by the learned counsel for the Vigilance Department, it is found that he is not a witness but an accused at serial no.15 which would be evident from the order of taking cognizance in Annexure-7 and as such, his statement could not have been pressed into service in course of hearing. Annexure-10, the letter of the Under Secretary to Government, Forest and Environment Department seeking advice from the OPSC on the modified proposed penalty to be imposed on the petitioner reveals that the main charge 9 against the petitioner with regard to involvement in illegal felling has not been proved and that the entire felling of the trees had been completed before joining of the petitioner as A.C.F., Malkangiri. These findings have been arrived at by the enquiry officer in the disciplinary proceeding initiated against him. Apart from the same, in such similar circumstances, Sushanta Nanda, who was the then D.F.O. approached this Court in CRLMC No. 2577 of 2008 and this Court vide order dated 17.5.2011 quashed the proceeding initiated against him.
13. In Hariam Satpathy (supra) order of Magistrate directing issue of process interferred by the High Court under Section 482 Cr.P.C. in exercising inherent power was set aside by the apex Court on the ground that High Court cannot launch on a detail and meticulous examination of the case on merit.
14. The apex Court in K. Neelaveni (supra) held quashing of charge-sheet before exercise of discretion of the Magistrate under Section 190 Cr.P.C. is undesirable.
The law laid down by the apex Court mentioned above relied upon by Mr. Pani, learned counsel for the Vigilance Department is not applicable to the present case as the said cases have been decided on their own facts and circumstances of the case.
15. The principles involving the power under Section 482, Cr.P.C. have been laid down by the apex Court in catena of decisions including R.P. Kapur V. State of Punjab, AIR 1960 SC 866, State of Harayana v. Bhajan Lal, AIR 1992 SC 604, Central Bureau of 10 Investigation v. Duncans Agro Industries Limited, Calcutta, 1996(5) SCC 591, M/s.Pepsi Foods Limited v. Special Judicial Magistrate and others, AIR 1998 SC 128, Asim K.Roy v. Bipin Bhai Vadilal Mehta, AIR 1997 SC 3976, Madhavrao Jiwaji Rao Scindia and another v. Sambhaji Rao Chandroji Rao Angre and others, AIR 1988 SC 709, G.Sagar Suri & another v. State of U.P. and others, (2000) 2 SCC 636, State of A.P. v. Golconda Linga Swamy and another (2004) 6 SCC 522, Debendra and others v. State of Uttar Pradesh and another (2009) 7 SCC 495 and State of A.P. v. Gourishetty Mahesh and others, 2010(11) SCC 226.
16. This Court in Amaresh Sarkar v. Siba Charan Bose and another, 2013(2) OLR 441 in which reference has been made to the judgment of the apex Court in paragraphs 6,7 & 8 to the following effect :
"6. The next question which arises for consideration in this case is in view of the settled legal position whether the High Court ought to have quashed the proceedings in exercise of its inherent power under Section 482 of the Cr.P.C. in the facts and circumstances of this case? The Hon‟ble apex Court in R.P. Kapur V. State of Punjab: AIR 1960 SC 866 summarized some categories of cases where the High Court in its inherent power can quash the proceeding.
7. In State of Karnataka V. L. Muniswamy & Others (1977) 2 SCC 699, the apex Court observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the Court 11 observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this Court and other courts.
8. In Madhu Limaye V. The State of Maharashtra (1977) 4 SCC 551, a three-Judge Bench of this Court held as under:-
"... In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible".
17. Keeping in view the parameters fixed by the apex Court referred to in the aforesaid judgments, the power under Section 482, Cr.P.C. may be very wide and the very plenitude of the power requires great caution in its exercise and the Court must be careful to see that the decision in exercise of this power is based on some principle. As held by the apex Court, such power should be exercised sparingly in rarest of rare cases.
18. In Neelu Chopra and another v. Bharti:(2009) 10 SCC 184, it has been held that in order to lodge a proper complaint, mere mention of the sections and the language of those sections is not the be all and end all of the matter. What is required to be brought to the notice of the court is 12 the particulars of the offence committed by each and every accused and the role prayed by each and every accused in committing that offence.
19. Materials on record in the present case do not satisfy such requirement for implicating the petitioner in the criminal proceeding which is pending against him for the last ten years. In the absence of allegations indicating specific role played by the petitioner towards commission of the alleged offences, continuance of criminal proceeding against the petitioner shall not serve any useful purpose; rather it would amount to abuse of the process of court. Therefore, in order to secure ends of justice, criminal proceeding against the petitioner is liable to be quashed.
20. Accordingly, the CRLMC is allowed. Criminal Proceeding against the petitioner in G.R. Case No. 27 of 2001 (V) now pending in the file of the learned Special Judge (Vigilance), Jeypore is quashed.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 7th September, 2013/Alok/PKSahoo