Orissa High Court
Sarbeswar Jena & Another vs State Of Odisha (Vigilance) ....... ... on 1 February, 2024
AFR
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3863 of 2023
(In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
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Sarbeswar Jena & another ....... Petitioners
-Versus-
State of Odisha (Vigilance) ....... Opp. Party
For the Petitioners : Mr. Sahasra Jyoti Nanda, Advocate
For the Opp. Party : Mr. Niranjan Maharana,
Addl. Standing Counsel, (Vigilance)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
_________________________________________________________
Date of Hearing: 16.01.2024 : Date of Judgment : 01.02.2024
_________________________________________________________
S.S. Mishra, J.
1. The petitioners have invoked the inherent jurisdiction of this Court under Section-482 Cr.P.C. seeking quashing of the common order dated 05.08.2023 passed by the learned Special Judge, Special Court, 2 Bhubaneswar in T.R. No.2/20 of 2018/2017, whereby separate applications moved by the petitioners under Section- 239 Cr.P.C. has been turned down.
2. The gravamen of the allegation against the petitioners are as under:-
The petitioner No.1, who was a Government servant, working as an Executive Engineer, P.H., B.M.C., Division-I, Bhubaneswar alleged to have acquired disproportionate assets known to his source of income.
It is alleged that the petitioner no.1 has acquired assets to the tune of Rs.50,67,634.00 as against the total income of Rs.45,17,350.00 and expenditure of Rs.29,96,513.00 during the check period from 01.08.1990 to 23.09.2011.
The petitioner no.2 is the wife of petitioner no.1. In addition of Section-109 IPC, the petitioner no.2 has also been prosecuted under other provisions.
Therefore, both the petitioners are facing charges under Section-
13(2) r/w Section-13(1)(e) of the Prevention of Corruption Act, 1988 and Section- 109 IPC.Page 2 of 11 3
3. After investigation, charge sheet has been filed alleging acquisition and possession of disproportionate assets to the known source of income of the petitioner no.1 to the tune of Rs.35,46,797.00.
4. In defence, the petitioner no.1 contended that he was employed as a Junior Engineer in the Department of Telecommunications, Office of the Superintending Engineer, (Civil), Telecom Civil Circle, Bhubaneswar from 29.08.1989 to 21.07.1990 and he became Senior Project Manager in Odisha Bridge & Construction Corporation (OB&CC) from 19.02.1988 to 04.04.1989. During the said tenure, the petitioner No.1's net salary was Rs.16,409.00 and Rs.45,150.00 respectively. The petitioner no.1 has also claimed that he could successfully demonstrate his legitimate source of income on the strength of which, he has acquired the assets.
5. The petitioner no.2, while seeking discharge, submitted that she is the wife of petitioner no.1. Prior to her marriage, she was involved in the screen printing business in the name & style as "M/s. Techno Print", at C-3, Market Building, Saheed Nagar, Bhubaneswar. From the year 2002 to 2011, she has also started a coaching center. She further submitted that her parents are wealthier persons and in particular, she submitted that her mother was having an IMFL-cum-Beer Shop at C-3, Sahid Page 3 of 11 4 Nagar, Bhubaneswar, in the name & style of "M/s. Suraj Wines". The petitioner no.2 further submitted that on 11.12.1998, her parents had purchased a plot in her name at Dumuduma, Bhubaneswar and also purchased a 3-storied building, setting aside the 2nd floor for her. She further submitted that of late, she was also engaged as a Storage Agent and running a business in the name & style of "M/s. Nayak Agency". Therefore, the petitioner no.2 submitted that due to her diverse business activities, she has independently acquired the properties/assets. The prosecution has falsely implicated her under the aid of Section-109 IPC. Hence, her assets/properties should be taken off from the consideration, while prosecuting her husband and she should be discharged from the alleged offences.
6. Learned trial Court, vide impugned order dated 05.08.2023, passed a common order disposing of the separate applications of the petitioners under Section-239 Cr.P.C. Learned trial Court, by relying upon various judgments of the Hon'ble Supreme Court, came to the conclusion that scuttling the trial at this stage, by discharging the petitioners, is not tenable. Accordingly, rejected the application vide impugned order. Relevant would be to reproduce the following passage from the said order:-
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"Perused the case record, so also the number of documents filed by both the accused persons. The documents mostly related to IT returns with regard to business of the mother of the co-accused and the storage agent assignment of co-accused Snigdha Nayak. It appears from the charge sheet that all these materials have taken into consideration by the investigating officer. Therefore, the investigating officer has ignored such income, cannot be said at this stage. The documents which are filed can only be assessed and to be considered during trial, but not at this stage.
At this stage, it will be profitable to refer to the decisions of Hon'ble Apex Court reported in State through Deputy Superintendent of Police vrs. R. Soundirarasu etc. : CRL. APPEAL Nos.1452-1453 of 2022 it has been specifically held by the Hon'ble Apex Court:
xxx xxx Para-78:"The High Court has acted completely beyond the settled parameters, as discussed above, which govern the power to discharge the accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the accused persons, compared with the information complied by the investigation agency and pronounced a verdict saying that the explanation offered by the accused persons deserves to be accepted applying the doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. the Respondent No.2 herein.
Para-79: "By accepting the entire evidence put forward by the accused persons applying the doctrine of preponderance of probability, the case put up by the prosecution cannot be termed as "groundless". As observed by this Court in C.D.S. Swami (supra) that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case."Page 5 of 11 6
Para-80: "Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the Cr.P.C. At the stage of Section 239 of the Cr.P.C., the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless."
Therefore, when it has been held by the Hon'ble Apex Court that at the stage of framing of charge, besides the materials produced by the prosecution, no other thing is required to be evaluated and further that in the case u/s. 13(1)(e) of the P.C. Act 1988 it is the accused to preponderate his case which is to be taken into consideration at the time of trial, in such eventuality, when the accused has raised about some accounts to have been made highly inflated against his assets and expenditure and there is deliberate omission of his income, are required to be addressed by him only at the time of trial. Thus, the petition as filed to discharge from the case found to be not supported with any materials on point of facts and law.
I have gone through all the decisions filed by the accused, but cannot be befitting to overturn to the latest decision in State through Deputy Superintendent of Police vrs. R. Soundirarasu etc. : Crl. Appeal Nos.1452-1453 of 2022 (supra) of the Hon'ble Apex Court as referred to herein above."
7. Attacking the aforementioned order of the learned trial Court, learned counsel for the petitioners has contended that in so far as petitioner no.2 is concerned, there is clear cut case favouring her. She could successfully demonstrate before the investigating agency that she Page 6 of 11 7 is engaged in various business activities and has independent income. However, none of her incomes were taken into account by the investigating agency and entangled her independently own assets in the alleged crime against her husband. If her independent properties are taken off, there would be no case even against her husband.
8. To buttress his arguments, learned counsel appearing for the petitioners has relied upon the following judgments:-
(I) Pratima Behera vs. State of Orissa (Vigilance) (2017) 66 OCR 622 (II) Bhabeswar Rana vs. State of Orissa (Vigilance) 2018 (II) OLR 550 (III) Anjali Panda vs. State of Orissa (Vigilance) (IV) A.R. Saravanan vs. State 2003 Crl. Law Journal 1140 (Para 9 to 11) (V) DSP Chennai vs. V.K. Inbasgaran (2006) OCR 300. (Para 9 to 12) (VI) Amit Kumar vs. Ramesh Chander (2012) 9 SCC 460. (Para 6 to 13)
9. Learned counsel for the petitioners has emphatically relied upon one of the judgments of this Court in the case of Anjali Panda v. State of Odisha (Vigilance) in CRLREV No.601 of 2016 disposed of on 05.04.2019. He has pointed out that the factual matrix of the said case Page 7 of 11 8 resembles to the present case and emphatically relied upon one of the passage of the judgment which reads as follows:
"The initial burden rests on the prosecution to prima facie show that the accused has acquired property disproportionate to his/her known sources of income and then in so far as the present case is concerned to say that the petitioner has abetted the commission of offence of accumulation of assets disproportionate to the income of her accused-husband. The petitioner is an income tax assessee since 1998 and its continuing till now. The case against the husband of the petitioner was instituted in the year 2009. Normally, it is not inferable that the documents had been prepared long before in anticipation that after a decade, the petitioner would face charges, like the present. The returns, filed with the Income Tax Authorities, assessed and finalized on their face value support her case. The investigating agency has not considered the relevancy of those documents and has merely discarded to accept those income shown therein in different heads for non-submission of certain documents relating to tenancy, the income from house property and that of the car ; when it is not said that the house property was in fact generating any income and the car was never used for commercial purpose. The Investigating Officer is required to act in a fair, impartial and reasonable manner in conducting the investigation without bias or prejudice. In view of all the aforesaid, in my considered view, there is no such clinching material to suggest that the petitioner abetted her husband or made any conspiracy or instigated in the alleged acquisition of disproportionate assets by her husband.
8. For the aforesaid discussions and reasons, I am of the considered view that the order passed by the trial court in rejecting the petition filed by the petitioner under section 239 of the Code and framing charge under section 109 of the IPC read with section 13(1)(e) punishable under section 13(2) of the PC Act is not sustainable in law and thus, the same is hereby set aside."
10. On the strength of the aforesaid judgment, learned counsel for the petitioners submitted that the rejection of the application of petitioner no.2 under Section-239 Cr.P.C. is devoid of merits and seeks indulgence of this Court.
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11. Per contra, Mr. Niranjan Maharana, learned Additional Standing Counsel appearing for the opposite party- State (Vigilance) submitted that the case laws cited by learned counsel for the petitioners are factually distinguishable from the present case. He submitted that the contention of the opposite party no.2 that she has been engaged in various business activities before and after the marriage and she has derived financial benefits from the source of income of her parents is always a defence, needs to be tested in the trial alone. It is not the case of the petitioner no.2 that she has a single or a clear source of income, rather her defence is that she is engaged in various business activities, which could not be gone into at this stage. Although the onus of this case initially rests on the prosecution to prove that the alleged disproportionate asset is from illegitimate income or unknown source of income of the petitioner no.1, but the onus shifts to the accused/petitioners once such varied stand is taken. Therefore, these facts could only be gone into in detail in the trial alone.
12. Learned counsel for the opposite party-State (Vigilance) further contended that the case law cited by learned counsel for the petitioners in the judgment of this Court namely Anjali Panda (supra) has already been tested before the Hon'ble Supreme Court in Crl. Appeal No.498 of Page 9 of 11 10 2022 [arising from SLP (Crl.) No.2960 of 2022] The State of Odisha (Vigilance) vs. Anjali Panda. The Hon'ble Supreme Court has already set-aside the judgment of this Court in Anjali Panda (supra) vide its order dated 28.03.2022. Benefit would be to reproduce the entire order of the Hon'ble Supreme Court.
"Delay condoned.
Leave granted.
This appeal takes exception to the judgment and order dated 05.04.2019 passed by the High Court of Orissa at Cuttack in CRLREV No.601/2016, whereby the High Court allowed the discharge application filed by the respondent.
For the nature of order that we propose to pass, we do not deem it necessary to dilate on the factual matrix of the case.
Suffice it to observe that the High Court has analyzed the matter as if it was deciding an appeal against conviction and also went on to note the defects in the investigation. That is not the scale on which a discharge application is to be dealt with.
The impugned judgment and order is, in our opinion, does not stand the test of judicial scrutiny. The same deserves to be set aside.
We have refrained from expressing any opinion on the factual matrix of the case as it should not come in the way of either party in pursuing the remedies before the Trial Court.
Needless to observe that the respondent will be free to pursue appropriate remedies, including to apply for suitable directions after completing the recording of prosecution evidence.
All contentions available to the parties in that behalf are left open.
The Trial Court is directed to proceed with the matter expeditiously as the offence was registered in the year 2010.Page 10 of 11 11
The appeal is allowed in the above terms.
Pending applications, if any, stand disposed of."
13. In so far as the other judgments cited by learned counsel for the petitioners to persuade this Court is concerned, I am of the view that none of the case laws would render any benefit to the case of the petitioners because the defence of the accused persons in all the cases are varied in nature and cannot be compared to the defence sought to be taken by the petitioners. The case of the present petitioners has to be tested by the trial Court on the basis of the prosecution's ability to discharge its onus and subsequently on the strength of the defence of the petitioners creates a doubt on the prosecution story. Therefore, I am of the considered view that the present case is not a fit case for interference by this Court at this stage under Section-482 Cr.P.C. I found no infirmity in the impugned order dated 05.08.2023 passed by the learned Special Judge, Special Court, Bhubaneswar in T.R. No.2/20 of 2018/2017.
14. The CRLMC is dismissed.
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S.S. Mishra (Judge) Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Page 11 of 11 Date: 02-Feb-2024 17:35:14