Orissa High Court
Agani Charan Behera vs State Of Orissa ......... Opposite ... on 16 August, 2018
Equivalent citations: AIRONLINE 2018 ORI 283
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 42 of 2012
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with V.G.R. Case No.39 of 2001
pending on the file of Chief Judicial Magistrate, Cuttack.
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Agani Charan Behera ......... Petitioner
-Versus-
State of Orissa ......... Opposite party
For Petitioner: - Mr. Aditya Ku. Mohapatra
H.K. Ratsingh
For Opp. Party: - Mr. Prasanna Ku. Pani
Addl. Standing Counsel
(Vigilance Department)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 13.08.2018 Date of Judgment: 16.08.2018
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S. K. SAHOO, J. The petitioner Agani Charan Behera has filed this
application under section 482 of the Code of Criminal Procedure,
1973 for quashing the charge sheet and the entire criminal
proceeding against the petitioner in V.G.R. Case No.39 of 2001
arising out of Cuttack Vigilance P.S. Case No.39 of 2001 pending
on the file of learned Chief Judicial Magistrate, Cuttack (hereafter
2
'the trial Court'). In the said case, the learned trial Judge as per
order dated 07.09.2013 framed charges under sections 406/120-
B of the Indian Penal Code against the petitioner and co-accused
persons Debadatta Das and Saroj Kumar Mishra.
2. On 15.10.2001 Sri P.K. Routray, Inspector of Police,
Vigilance, Cuttack Division, Cuttack presented the first
information report before the Superintendent of Police, Vigilance,
Cuttack Division, Cuttack stating therein that he received reliable
information on 12.10.2001 at 3.00 p.m. that the rice allotted
under 'Food for work programme' to Saline Embankment
Division, Cuttack stored at Jagatpur Godown, without being
given to the labourers, are being disposed of at Malgodown,
Cuttack in truck no.OSC 6731. The informant along with other
police officials proceeded to Malgodown to verify the information.
On reaching at Malgodown, they found truck no. OSC 6731 had
been parked near the godown of M/s. Patra Traders being loaded
with rice bags. The driver and helper of the truck so also the
labourers who were unloading the rice bags from the truck fled
away leaving the truck. On search, 200 bags of rice weighing 50
Kg. each were seized along with the vehicle. The vehicle was
given in the zima of one B.K. Mohanty in presence of witnesses.
3
It is the further case of the prosecution as per the
F.I.R. that during verification, Sri Debendra Nayak, driver of the
truck no. OSC 6731 was traced, who disclosed that the rice
belonged to co-accused Saroj Kumar Mishra of Rajnagar of
district Kendrapada who took delivery of the said rice from the
store situated at Jagatpur on 12.10.2001 and as per his
direction, he brought the rice in his truck on hire from Jagatpur
to Malgodown for disposal. Co-accused Saroj Kumar Mishra was
traced who disclosed that he had taken ten numbers of creek
works at Kanak Nagar under Saline Embankment Division,
Cuttack. He completed the works in the month of May 2001 but
due to non-availability of rice in the store, he could not lift the
stock.
It is the further case of the prosecution as per the
F.I.R. that on verification of the records, it was found that co-
accused Saroj Kumar Mishra was awarded to execute different
area works vide F2 Agreement No.56, 57, 58, 59, 60, 61, 63, 65,
142 and 143 under 'Food for work programme' for Rs.4,74,970/-
by the Executive Engineer, Saline Embankment Division,
Cuttack. The works were to be executed under the direct
supervision of the petitioner who was the J.E., Talchua Irrigation
Section. The records further disclosed that 1400 MT of rice under
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'Food for work programme' were received on 30.6.2001 by the
Saline Embankment Division, Cuttack and the those rice bags
were stored in three godowns at Jagatpur, Sikharpur and
Rajnagar for distribution purpose. Though the works were
completed during the month of May, the departmental officers
without any reason kept rice unsupplied and undistributed to the
labourers for whom alone it was meant for, for four long months
and ultimately when it was decided to supply the rice, instead of
supplying rice from Rajanagar store, the rice was supplied from
Jagatpur store with an ulterior motive.
It is the further case of the prosecution as per the
F.I.R. that on 12.10.2001 the co-accused contractor Saroj Kumar
Mishra took delivery of 216 bags of rice from co-accused
Debadatta Das, J.E. in charge of store at Jagatpur godown on the
strength of authorisation slip issued by the petitioner of Talchua
Irrigation Section. Both the contractor and the co-accused J.E.
Debadatta Das could not offer any valid explanation about the
transportation of rice from Jagatpur store to Malgodown, Cuttack
and about shortage of sixteen bags of rice. Co-accused J.E.
Debadatta Das also kept stock and issue register pending
without making up-to-date entries with an ulterior motive.
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It is further stated in the F.I.R. that the Government
officials by making conspiracy with contractor without
distributing the rice, supplied by the Government under 'Food for
work programme' at Rajnagar, diverted the same to Malgodown,
Cuttack for disposal for their pecuniary gain as a result the very
purpose of the Government was defeated causing loss to the
State Exchequer for which the petitioner who was J.E., Talchua,
co-accused Debadatta Das, J.E., Store, both of Saline
Embankment Division, Cuttack and co-accused Saroj Kumar
Mishra, contractor are liable under sections 406, 409 read with
section 120-B of the Indian Penal Code and 7 of Essential
Commodities Act.
3. This CRLMC petition was filed on 03.12.2012
annexing the F.I.R., copy of letter dated 01.06.2001 issued by
the Executive Engineer, Saline Embankment Division, Cuttack to
the District Manager, FCI, Cuttack and copies of hand receipts
and charge sheet dated 27.09.2002. This Court vide order dated
05.11.2013 in Misc. Case No.28 of 2012 granted interim stay of
further proceeding of the case before the trial Judge. During the
midst of hearing, a Misc. Case was filed by the learned counsel
for the petitioner for amendment of the petition annexing the
order dated 27.01.2004 by virtue of which cognizance of
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offences under sections 406/120-B of the Indian Penal Code was
taken on receipt of charge sheet, the order dated 20.05.2011 by
virtue of which the discharge petition filed by the petitioner
under section 239 of Cr.P.C. was rejected and the order dated
07.09.2013 by virtue of which charges were framed by the
learned trial Judge. The Misc. Case was allowed and a
consolidated petition was filed.
4. Mr. Aditya Kumar Mohapatra, learned counsel for the
petitioner challenging the rejection of discharge petition, order of
framing charge and the continuance of the criminal proceeding
against the petitioner contended that the prosecution case in its
entirety does not make out any offence against the petitioner. It
is argued that the role of the petitioner as a Junior Engineer was
confined to supervision of work and measurement of work
executed by the contractor. After completion of work, the
petitioner had measured the work which had been countersigned
by the Asst. Engineer and it was recommended for payment. It is
further contended that when the work was executed, at that
relevant point of time no rice grains were available at any of the
stores of the department and as per the standard practice of the
department, the petitioner issued a hand receipt in favour of the
contractor asking him to lift the stock as soon as it is made
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available in the nearby Govt. Stores. It is argued that there was
no entrustment of rice stocks with the petitioner for distribution
to the labourers and no breach of trust as alleged has been
committed by the petitioner. There is no element of criminal
conspiracy with the co-accused persons. It is contended that
when the J.E., Stores, Jagatpur being the custodian of Govt.
godown released 216 bags of rice on 12.10.2001 in favour of the
contractor and there is no material that the petitioner had
knowledge about the lifting of the rice stock from Jagatpur
godown, it was not proper on the part of the investigating officer
to submit charge sheet against the petitioner. It is submitted
that after completion of work and its measurement, the
measurement book was countersigned by the S.D.O. and
authorisation was issued in favour of the contractor for taking
the rice and for final payment of his bill and the contractor had
not received the final payment of the work as he had not
submitted the distribution receipts of the rice under the 'Food for
work programme'.
Mr. Prasanna Ku. Pani, learned Addl. Standing
Counsel for the Vigilance Department on the other hand
submitted that the work was completed on 30.05.2001 and even
though at that point of time the stock of rice was not available in
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the godowns but it was made available on 30.06.2001 and stored
in three godowns i.e. Jagatpur, Sikharpur and Rajnagar and
therefore, there was no justification for allowing the contractor to
take delivery of rice of 216 bags at a belated stage on
12.10.2001. It is submitted that as per Clause 4 of Orissa Public
Works Department/Electricity Department Contractors Labour
Regulations, wages due to every worker has to be paid to him
directly and as per Clause 5, no wages shall exceed one month
and wages of every workman employed on the contract shall be
paid before the expiry of ten days, after the last day of the
wages period in respect of which wages are payable. It is argued
that the last date as per the aforesaid regulation was expiring on
10.07.2001 for labour payment and during that period the
required rice was available in all godowns including Rajnagar,
however it was not lifted at that point of time but lifted only on
12.10.2001 which is more than three months after the
availability of the stock of rice under 'Food for work programme'
in the godowns. It is contended that deliberately the rice was not
lifted from Rajnagar godown though the works were done at
Kanaknagar under Rajnagar Block. It is further contended that
the National Food for Work Programme (NFFWP) guidelines
issued by the Govt. of India, Ministry of Rural Development in
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Chapter-II indicates that the foodgrains should be given as a part
of wages under NFFWP to the rural poor at the rate of 5 kgs. per
manday. The State Govt. will take into account the cost of
foodgrains paid as part of wages, at a uniform BPL rate. In
Chapter-IV of NFFWP which deals with allocation and release of
resources, Clause 4.14.1 states that the full benefit of wages to
be paid should reach the workers and cost of works should not
involve any commission charges payable to such contractors,
middleman or intermediate agency. It is argued that there is no
rule, regulation or agreement which empowers the J.E. to release
the rice meant for the purpose of 'Food for work programme' in
favour of the contractor and the contractor after receiving the
said rice to sale in the open market. It is contended that it was
not proper to issue hand receipt in favour of the contractor which
was misutilised in lifting rice stock from Jagatpur godown and
taking it to Malgodown for sale. It is contended that in view of
the difference of costs of rice issued under BPL rate and market
rate, there is possibility that unscrupulous persons with vested
interest might divert grain to sale at higher rate. It is further
contended that there is no illegality in the orders of rejection of
the discharge petition and framing of charges and therefore, this
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Court should not interfere with the same invoking its inherent
power under section 482 of Cr.P.C.
5. The trial of the offences under which charges have
been framed is to be dealt with in accordance Chapter-XIX of
Cr.P.C. Section 239 Cr.P.C. deals with the discharge of an
accused and section 240 Cr.P.C. deals with framing of charge by
the trial Court in cases which are instituted on a police report.
When the Court considers the charge against the accused to be
groundless which means without any basis or foundation, the
accused can be discharged under section 239 of Cr.P.C. The
object of discharge is to save the accused from unnecessary and
prolonged harassment and therefore, the mechanical approach
at the stage of consideration of discharge petition by the trial
Judge is impermissible as the next step i.e. the framing of
charges substantially affects the person's liberty. For exercising
the power of discharge under section 239 of Cr.P.C., it is not
necessary even for the accused to file a petition for discharge.
Bereft of the fact whether discharge petition is filed or not, the
learned trial Judge is not absolved of his duty at that stage to
decide whether the charge against the accused to be groundless.
For arriving at such a conclusion, the Court has to consider the
police report, the documents sent with it under section 173 of
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Cr.P.C. and also if necessary, by examining the accused. After
giving opportunity of hearing to the prosecution as well as to the
accused, if the Court decides to discharge the accused then
reasons are to be recorded. However, if the Court is of the
opinion that there is ground for presuming that the accused has
committed an offence which can be tried under Chapter-XIX then
under section 240 of Cr.P.C., the Court shall frame charge in
writing against the accused. The truth, veracity and effect of the
materials proposed to be adduced by the prosecution during trial
are not to be meticulously adjudged. The likelihood of the
accused in succeeding to establish his probable defence cannot
be a ground for his discharge. At the stage of framing charge, it
is to be seen whether a prima facie case has been made out. The
Court would not delve deep into the matter for the purpose of
appreciation of evidence.
6. The materials available on record indicate that as per
tender and the measurement book, the work i.e. C.D.R. to Nallah
on Kanakanagar commenced on 21.05.2001 and it was
completed on 30.05.2001. The record reveals that the stock
position of paddy (rice) in the godown of Rajnagar Saline Sub-
Division Office under 'Food for work programme' from
01.05.2001 to 31.05.2001 was nil and no paddy was lifted
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during the month of May 2001. The first information report and
other documents reveal that 1400 MT of rice under 'Food for
work programme' were received on 30.06.2001 by the Saline
Embankment Division, Cuttack and the said rice bags were
stored in three godowns i.e. Jagatpur, Sikharpur and Rajnagar.
Therefore, when the rice stock was not available in any of the
three godowns when the work in question was under progress or
completed, the question of distribution of rice to the labourers
does not arise. After the rice was made available a month after
the conclusion of work and its measurement, it seems no
immediate steps were taken to lift the rice from the godown and
distribute it to the labourers. It is needless to say that the
contractor would only be entitled to get the final payment
towards the work after submission of distribution receipts of rice
under the 'Food for work programme' and in the present case the
contractor had failed to produce the receipts and therefore, he
had not received the final payment. The petitioner seems to have
issued hand receipt for lifting of rice stock in favour of the
contractor as per prevailing practice but there is nothing on
record to show that the petitioner had asked the co-accused
Saroj Kumar Mishra to lift rice from Jagatpur godown instead of
Rajnagar godown. If the contractor co-accused produced the
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hand receipt and allowed to lift the rice from Jagatpur godown by
the in charge of the godown and after receiving the rice bags, he
carries it to Malgodown, Cuttack in a truck, it cannot be
presumed that there was any criminal conspiracy of the
petitioner with the co-accused persons. The petitioner was not in
charge of Jagatpur godown nor was the rice stocked in that
godown entrusted to him in any manner. Production of hand
receipt issued by the petitioner at Jagatpur godown, entertaining
such hand receipt, delivering the rice stock and carrying it to
Malgodown in a truck seems to have got no nexus with the
petitioner. Those acts have been alleged against the other two
co-accused persons but not to the petitioner. Merely because the
hand receipt for lifting of rice stock was issued by the petitioner
as per prevailing practice in favour of the contractor a few
months after it was made available in the godown, cannot be a
factor for fixing any criminal liability on the petitioner.
7. In view of the forgoing discussions, I am of the
considered opinion that there is no ground for presuming that
the petitioner has committed offence of criminal breach of trust.
There are no surrounding circumstances or any conduct of the
petitioner from which it can be inferred that he was a party to
criminal conspiracy and therefore, the order of rejection of the
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discharge petition filed by the petitioner was neither proper nor
justified. The learned trial Court has committed illegality in
framing charge against the petitioner under sections 406/120-B
of the Indian Penal Code.
Therefore, the CRLMC application is allowed. The
criminal proceeding in V.G.R. Case No.39 of 2001 in respect of
the petitioner stands quashed.
..............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 16th August 2018/Pravakar/Sukanta