Orissa High Court
Patitapaban Panda And Arun Kumar ... vs State Of Orissa on 25 July, 2006
Equivalent citations: 2006(II)OLR335
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. All the three aforesaid CRMC petitions have been filed under Section 482 Cr.P.C with a prayer to quash the proceedings of T.R. Case Nos. 4 of 1984 and 35 of 1983 pending before the Special Judge, Bhubaneswar mainly on the ground that though the petitioners were charged with alleged commission of offences under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 as long back as in the year 1982, the proceedings of the cases have not yet come to a logical end till date though 22/23 years have passed in the meanwhile. The further ground urged by the petitioners is that the aforesaid offences cannot be brought home against them they not being public servants in relation to the alleged crime.
2. Admittedly the petitioners were the employees of the Utkal University. The allegations against them broadly were that while they were in charge of publication of results of the Degree Examination with regard to withheld cases and had been entrusted with the duty of preparing the mark-foils from the answer-scripts and hand over the same to the tabulators concerned for finalization and/or verifying the roll numbers of the examinees appearing in the result sheets received from the tabulators they had adopted unfair means, and thereby committed the alleged offences.
3. According to learned Counsel for the petitioners the alleged occurrence having taken place in the year 1982, the Prevention of Corruption Act, 1988 would not ipso facto apply to the cases initiated against them, although at best the old Act of 1947 may be applicable. Under the old Act, 1947, 'public servant' would mean and connote the definition of the said words as given in the Indian Penal Code, but the said definition under the Indian Penal Code does not embrace an employee of a University. On that basis the cases initiated against the petitioners, vide the aforesaid T.R. Cases, would not be maintainable.
4. In course of hearing it was submitted that seven cases in to had been initiated against the petitioners and others. Out of the same, the proceedings of T.R. Case No. 5 of 1984 have since been quashed by judgment passed by this Court on 29.7.1991 in CRMC No. 961 of 1991, so far as petitioner Patitapaban Panda was concerned, on the ground that he was not a public servant. The proceedings T.R. Case No. 74 of 1983 were also quashed by judgment passed by this Court on 29.7.1991 in CRMC No. 960 of 1991 so far as the said petitioner was concerned. The Court also quashed the proceedings of T.R. Case Nos. 4 and 1984 and 35 of 1983 by judgment passed in CRMC Nos. 759 of 1991 and 245 of 1991 respectively so far as the same petitioner was concerned. This Court has further quashed the proceedings of T.R. Case No. 73 of 1983 in CRMC No. 1136 of 1990. But then it appears that the prayer for quashing the proceedings of the present T.R. Case Nos. 4 of 1984 of 35 of 1983 was rejected so far as the present petitioners were concerned on the ground that prima facie there was evidence to show that they were implicated in the alleged offences while discharging certain functions as public servants. Observing that whether the petitioners would be considered as public servants or not being a mixed question of fact and law this Court declined to quash the proceedings of the said cases at the very threshold.
5. Mr. D.K. Mohapatra, learned senior counsel for the Vigilance Department, at the other hand took the stand that delay in disposal of a case cannot be a ground to quash the proceedings of the said case. That apart, whether the petitioners were public servants or not can be determined only during trial.
6. This Court had directed Mr. Mohapatra to inform the stage at which the aforesaid T.R. Cases are pending, and on instructions he submitted before this Court that though the cases were posted for trial and witnesses were summoned in batches, no witness has yet turned up and the cases are being adjourned time and again.
7. In the aforesaid factual background the submissions of the learned Counsel for the parties inter se were considered by this Court. As it appears, the proceedings of other T.R. Cases in which petitioner Patitapaban Panda was implicated have in the meanwhile been quashed by this Court on the finding that he was not a public servant. The said finding has become conclusive. The petitioners in the present T.R. Case stand on identical footing. That apart, as stated earlier, the alleged offences were committed in the year 1982 and the cases are pending for about two decades. According to the learned Counsel for the Vigilance Department the witnesses though summoned to give evidence are not turning up for which the trial has not commenced yet. The petitioners have retired from service and are now at the fag end of their life. In such circumstances continuance of the T.R. Cases against them for about two decades is like hanging a sword over their head. That apart, as submitted by the learned Counsel for the Vigilance Department, most of the witnesses cited by the prosecution who were also the University employees have in the meanwhile retired and are not available in the addresses furnished by the prosecution, which is fortified from the fact that though summons were issued none of them has yet appeared in Court to depose.
8. In the aforesaid scenario, this Court feels that continuance of the proceedings of T.R. Case Nos. 4 of 1984 and 35 of 1983 would not be in the interest of justice. That apart, as the witnesses are not turning up there is every likelihood that the cases would end in acquittal. Accordingly this Court following the ratio of the earlier decision of this Court supra allows the CRMCs and quashes the proceedings of T.R. Case Nos. 4 of 1984 and 35 of 1983 pending against the petitioners in the Court of the Special Judge, Bhubaneswar.