Orissa High Court
Sri Jaladhar Sathua vs State Of Odisha Vigilance on 21 September, 2017
Author: J.P. Das
Bench: J.P. Das
ORISSA HIGH COURT, CUTTACK.
CRIMINAL MISC CASE NO. 3501 OF 2013
(Application under Section 482 of the Code of Criminal
Procedure, 1973 in connection with T.R.Case No.17 of 2013
pending on the file of Special Judge, Vigilance, Bhubaneswar)
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Sri Pramod Kumar Padhi ....... Petitioner.
-versus-
State of Odisha,Vigilance ....... Opp-Parties.
For Petitioner : M/s. D.Mishra &
S.Satpathy.
For Opposite Parties : Additional Standing Counsel
State(Vigilance)
CRIMINAL MISC CASE NO. 4982 OF 2014
(Application under Section 482 of the Code of Criminal
Procedure, 1973 in connection with T.R.Case No.17 of 2013
pending on the file of Special Judge, Vigilance, Bhubaneswar)
------------------
Sri Jaladhar Sathua ....... Petitioner.
-versus-
State of Odisha,Vigilance ....... Opp-Parties.
For Petitioner : M/s. D.Mishra &
S.Satpathy.
For Opposite Parties : Additional Standing Counsel
State(Vigilance)
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PRESENT:
THE HONOURABLE SHRI JUSTICE J.P. DAS
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Date of hearing :24.08.2017 Date of Judgment: 21.09.2017
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J.P.Das, J This common order shall dispose of
aforesaid two criminal Misc. Cases filed under Section
482 of the Code of Criminal Procedure, wherein the
order dated 21.02.2013 passed by the learned Special
Judge, Vigilance, Bhubaneswar in T.R.17 of 2013
arising out of Bhubaneswar Vigilance P.S.Case No.19
of 2009 has been assailed. By the impugned order,
learned Vigilance Judge has taken cognizance of the
offences punishable under Section 13(2) read with
Section 13(i)(d) of the Prevention of Corruption Act,
1988 and Section 120-B of the Indian Penal Code
against the petitioners in both the aforesaid cases
along with other accused persons.
2. The F.I.R. was submitted by the Inspector of
Police, Vigilance Cell, Cuttack that on receipt of
allegation regarding misappropriation of government
money showing false statements under Khurda
Municipality, the matter was enquired into. In course
of investigation, it was found that the work of "Fixing,
fitting of glazed tiles at Hanuman Temple at Sanapalla
(Ward No.9)" was approved by the Khurda Municipality
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and the execution of work was awarded in favour of
one contractor Sri P.B.Jagadev Ray. After completion of
work, the work was check-measured by the present
petitioners namely, Pramod Kumar Padhi who was
working as Executive Engineer and Sri Jaladhar
Sathua who was working as Junior Engineer in the
said Municipality and on their certificate an amount of
Rs.36,817/- was paid to the contractor. It was further
alleged that although the work had been shown to have
been executed in the Hanuman Temple located on the
Plot No.252, Khata no.244, still the said land or the
concerned temple standing on the said land, did not
come under the Khurdha Municipality. The said temple
was found to be a private property situated on a private
land of one Debendra Mohanty who allegedly stated
that no work was ever taken up by the Municipality in
the said temple and all the works done in the temple,
were out of their own private fund. Thus, it was alleged
that the present petitioner along with other officials
and the concerned contractor managed to
misappropriate a sum of Rs.36,817/- of government
money without executing any work. In the F.I.R. some
other allegations were made relating to some other
works under the said Khurda Municipality.
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3. After completion of investigation, the charge
sheet was submitted and cognizance was taken by the
learned Special Judge, Vigilance, Bhubaneswar as
aforesaid which is under challenge in these two
applications.
4. Mainly, two contentions were advanced by
the respective learned counsel appearing for the
petitioners in both the cases that the finding of facts in
course of investigation was apparent error since the
concerned temple where the work was executed stood
on plot No.262/1800 under Khata No.396/154
donated by one Bijay Kumar Pattanaik to Khurda
Municipality and the work was taken up and executed
as per decision of the council of the Municipality, and
hence the petitioners had no liability nor had
committed any illegal act.
5. The Second contention that was raised is
that after coming to know about the registration of the
F.I.R, the petitioner Pramod Kumar Padhi made a
representation to the Chief Secretary of Odisha who
directed Housing and Urban Development Department
for an enquiry. After enquiry, a report was submitted
that the temple in question stood on the Plot
No.262/1800 well within the jurisdiction of the Khurda
Munipality. Accordingly, a letter no.18336 dated
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29.06.2012was issued by the Director, Housing and Ex-Officio Additional Secretary to Government of Odisha in Housing and Urban Development Department addressed to the Superintendent of Police, Vigilance Cell, Cuttack. In the said letter, it was mentioned that on enquiry, it has been found out that the concerned temple did not situate on private land and it was a public property. Further a Community Hall has been constructed by the side of Hanuman Temple by utilizing the funds sanctioned from M.L.A LAD funds. The concerned work of fixing glazed tiles has been taken up as per resolution passed by the Municipality Authority and it was executed under proper supervision of the Chairman of Khurda Municipality. Hence, there was no fault on the part of the Municipality Engineers in the execution of the said work. Thus, in the said letter it was mentioned that it was felt by the Chief Secretary, that the matter should be re-examined by the Vigilance Authority and a report be submitted to the said department. A copy of the said letter having been obtained by the petitioners under the R.T.I. Act has been filed before the Court. Basing on this, it was submitted that since on enquiry by concerned as well as higher authorities, it was found out that the work was duly undertaken and there was no fault on the part of the petitioners, the submission 6 of the charge-sheet and taking of cognizance thereon are not sustainable in law.
6. It was submitted by the learned counsel for the State, Vigilance that a prima-facie case having been found out against the petitioners with sufficient materials on record, the charge-sheet has been submitted and considering the materials, the learned court below has taken the cognizance of the offences. The plea as advanced on behalf of the petitioners cannot be taken into consideration at this stage so as to quash the order of cognizance. It was further submitted that as per the F.I.R. as well as investigation, the alleged construction work was to be executed on plot no.252 under Khata No.244 whereas the petitioners claim that the work was undertaken in the temple situated on plot no.262/1800 under khata no.396/154. Thus, it was submitted that this is a matter which can only be thrashed out in course of trial and cannot be accepted on mere oral submission at this stage.
7. As regards the letter issued by the Additional Secretary to the Government as aforesaid, it was submitted by learned counsel for the State, Vigilance, that since the letter was received after submission of the charge sheet, no action could be taken on the said 7 letter. In this regard a clarification was sought for from the learned trial court as to the date of receipt of the charge sheet and it has been reported that the charge sheet was received by the court on 21.01.2013. The relevant letter was dated 28.06.2012. Thus, it was submitted on behalf of the petitioners that the submission as to the receipt of letter after submission of the charge-sheet is not correct and rather the prosecuting agency has not taken into consideration the said letter addressed by higher authority of the government of Odisha. It was further submitted by the learned counsel for the State, Vigilance, that though the learned trial court has reported to have received the charge sheet on 21.01.2013 still it can be seen from the copy of the charge sheet filed on behalf of the petitioners that it was signed for submission on 30.06.2012.
8. Taking into consideration the submissions made on behalf of the petitioners as well as on behalf of the State, Vigilance, I am of the considered view that the pleas as advanced on behalf of the petitioners regarding error in identification of the land and the temple and further finding of facts on an enquiry at the direction of the Chief Secretary of the State are the materials which can be examined only on evidence and 8 in course of trial. Admittedly, there is a dispute relating to the specific land as because as per the F.I.R. the work was to be executed in the temple situated on plot no.252 under Khata No.244 whereas it was the contention of the petitioners that the work was taken up in the temple situated on the plot No.262/1800 under Khata No.396/154. In order to find out the truth, the details of the record of the Municipality proceedings therefor and other connected matters have to be examined. Similarly, the enquiry taken up on the direction of the Chief Secretary and the facts found out in course thereof are also the materials to be considered during course of evidence. It is needless to mention that such a detailed enquiry is neither permissible nor possible at the time of taking cognizance. The finding of facts and the truth of the contentions made on behalf of the petitioners may be grounds for quashing the proceeding but such an exercise is not permissible at this stage.
9. Another contention was raised on behalf of the petitioner Pramod Kumar Padhi regarding the validity of sanction order obtained against him with the submission that the sanction has been accorded by the authority under whom he is presently working and not by the authority under whom he was working during 9 the period of alleged irregularities. It was submitted that the sanction having been accorded by another authority, there has not been proper application of mind on consideration of facts and it has been mechanically issued. Again this is a mixed question of fact and law to be considered in course of trial.
10. In the given facts and circumstances, I am not inclined to accept the contentions raised on behalf of the petitioners so as to quash the cognizance as well as the proceedings in T.R. Case No.17 of 2013 on the file of learned Special Judge, Vigilance, Bhubaneswar. Accordingly, both the applications stand dismissed. However, the petitioners are at liberty to raise such contentions at any subsequent stage during trial which shall be considered according to law by the learned trial court.
Both the applications are disposed of
accordingly.
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J.P. Das, J.
Orissa High Court, Cuttack
Dated the 21st September,2017/Lingaraj 10