Orissa High Court
CRLMC/1450/2019 on 15 May, 2020
Author: S.Pujahari
Bench: S.Pujahari
CRLMC No.1450 of 2019
CRLMC Nos.1450 of 2019, 1451 of 2019, 1931
of 2019 and 2135 of 2019
06. 15.05.2020 The question involved being almost common to
all these cases, for the sake of convenience, the
following common order is being passed for their
disposal.
2. CRLMC Nos.1450 of 2019 and 1451 of 2019
arise out of VGR Case No.62 of 2003 registered
under Sections 13(2) read with 13(1)(c)(d) of the P.C.
Act, Sections 409 and 420 of IPC and Sections
27(e)(a)/37(i)(a) of the Forest Act, 1972, and CRLMC
Nos.1931 of 2019 and 2135 of 2019 arise out of VGR
Case No.61 of 2003 registered for the similar
offences. Both the cases on being transferred from
the Court of the Special Judge, Vigilance, Cuttack
are now pending in the Court of the Special Judge,
Vigilance, Angul. After completion of investigation,
the Vigilance Police submitted final report in both
the cases on the ground of lack of evidence to fasten
criminal liability against the accused-petitioners. At
the same time, the Investigating Agency
recommended for initiation of departmental
2
Contd......... proceeding against the petitioner - Pradip Kumar
15.05.2020
Sahoo in VGR Case No.61 of 2003 and the petitioner
- Managovinda Dalei in VGR Case No.62 of 2003,
and some other co-accused persons.
3. In VGR Case No.61 of 2003 the learned Special
Judge (Vigilance), Cuttack vide his order dated
29.08.2011 differing with the view of the
Investigating Agency affirmed existence of prima-
facie materials showing involvement of the accused
persons including the petitioners, namely, Suresh
Pant and Pradip Kumar Sahoo, and simultaneously
directed the concerned authorities to obtain sanction
for prosecution of the accused-public servants for
the offences under Sections 13(2) read with Section
13(1)(c)(d) of the P.C. Act, 1988 read with Sections
409 and 420 of IPC and under Section
27(3)(a)/37(1)(a) of Orissa Forest Act, 1972 read with
Section 3-A of Forest (Conservation) Act, 1980. A
copy of the said order was communicated to the
D.I.G. (Vigilance), Cuttack, and S.P., Vigilance, CD,
Cuttack for necessary action at their end. While the
3
Contd......... case was being dragged on in the Court of the
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Special Judge, Vigilance, Cuttack awaiting sanction
order, pursuant to the order of this Court, the case
was transferred to the Court of the Special Judge,
Vigilance, Angul who vide his order dated
18.03.2019 directed for issuance of summons to the
accused persons including the present petitioners in
CRLMC Nos.1931 of 2019 & 2135 of 2019. Those
petitioners now have approached this Court seeking
for quashment of the aforesaid orders by invoking
the powers of this Court under Section 482 of
Cr.P.C.
4. In VGR Case No.62 of 2003 the learned Special
Judge (Vigilance), Cuttack vide his order dated
10.08.2011 while affirming existence of prima-facie
materials showing involvement of the accused
persons including the petitioners, namely, Suresh
Pant and Managovinda Dalei, differed with the view
of the Investigating Agency and simultaneously
directed the concerned Authorities to obtain sanction
for prosecution of the accused-public servants for
4
Contd......... the offences under Sections 13(2) read with Section
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13(1)(c)(d) of the P.C. Act, 1988 read with Sections
409/420 of IPC and under Sections 27(3)(a)/37(1)(a)
of the Orissa Forest Act, 1972 read with Section 3-A
of the Forest (Conservation) Act, 1980. A copy of the
said order was communicated to the S.P., Vigilance,
CD, Cuttack for necessary action at his end. As it
further appears, the S.P., Vigilance, Cuttack Division
vide his Letter No.2900 dated 05.04.2013 intimated
the Court of the learned Special Judge, Vigilance,
Cuttack that the Government of Odisha on being
moved declined to accord sanction for prosecution of
the accused-petitioners, namely, Suresh Pant and
Managovinda Dalei. A copy of the relevant
communication of the Government of Odisha in
General Administration Department was also
submitted by the S.P., Vigilance before the Court of
the Special Judge, Vigilance, Cuttack. The learned
Special Judge, Vigilance, Cuttack vide his order
dated 31.01.2019 while taking note of the aforesaid
intimation regarding refusal of sanction by the
5
Contd......... Government, however, took cognizance of all the
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offences aforesaid against co-accused, namely,
Naresh Chandra Panda on the ground that the said
accused having already retired from Government
service on attaining the age of superannuation, no
sanction was necessary for his prosecution. So far as
the accused-petitioners, namely, Suresh Pant and
Managovinda Dalei are concerned, notwithstanding
refusal of sanction by the State Government for their
prosecution, the learned Special Judge vide the same
order took cognizance of the offences under Sections
409 and 420 of IPC and Sections 27(3)(a)/37(1)(a) of
the Orissa Forest Act, 1972 read with Section 3-A of
the Forest (Conservation) Act, 1980, by citing the
reason that since commission of those offences by
the accused-petitioners has not any immediate or
proximate connection with the discharge of their
official duty, sanction for their prosecution for those
offences is not necessary. He has relied on Romesh
Lal Jain vrs. Naginder Singh Rana and others,
reported in 2005 CRI.L.J. 5068 (SC). The learned
6
Contd......... Special Judge impliedly dispensed with the
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requirement of sanction under Section 197 of Cr.P.C.
while taking cognizance of the offences barring the
offences under the Prevention of Corruption Act,
1988. The petitioners now assail the aforesaid order
before this Court under Section 482 of Cr.P.C.
5. I have heard the learned counsel appearing for
the petitioners in all the cases and the learned
Senior Standing counsel appearing for the Vigilance
Department. Perused the orders impugned vis-à-vis
the other relevant papers on the records.
6. It is the submission of the learned counsel for
the petitioners that in absence of any order of
cognizance, the summon issued against the
petitioner in V.G.R. Case No.61 of 2003 cannot be
sustained. So far as the V.G.R. Case No.62 of 2003 is
concerned, it is his further submission that in
absence of the sanction from the Government in
spite of the direction given, cognizance taken as well
as the proceeding against the petitioner is vitiated.
7
Contd......... 7. In response, the learned Senior Standing
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counsel appearing for the Vigilance Department
fairly submits that the State has filed the final report
after due investigation in both the cases as it found
no prosecutable evidence against the petitioners. So
far as the VGR Case No.61 of 2003 is concerned,
though the Special Judge, Vigilance, Cuttack finding
a prima-facie case against the petitioners in CRLMC
Nos.1931 of 2019 and 2135 of 2019 directed the
prosecution to obtain sanction against them from the
appropriate Government, but before the sanction is
obtained, the case having been transferred to the file
of the learned Special Judge, Vigilance, Angul due to
bifurcation of jurisdiction, the learned Special Judge,
Vigilance, Angul without any cognizance order,
issued summon to the accused-petitioners therein,
against whom the learned Special Judge, Vigilance,
Cuttack has held that prima-facie cases are there
against them and had awaited sanction to proceed.
Therefore, in absence of the order of cognizance, the
said impugned order issuing process against them is
8
Contd......... unsustainable. So far as the VGR Case No.62 of
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2003 is concerned, it is submitted by the learned
Senior Standing counsel appearing for the Vigilance
Department that State has accorded no sanction
against the accused-petitioners therein, but the
Court still proceeded against them for other offences
except the offence under the P.C. Act, holding that
no sanction was required to proceed against them for
such I.P.C. offences having no nexus with the
discharge of official duty, this Court may pass order
examining the same as permissible under law.
8. As it appears, in VGR Case No.61 of 2003,
upon receipt of a final report from the Investigating
Agency, the learned Special Judge directed for
issuance of notice to the Complainant/Informant
inviting his protest / objection, if any, to the final
report. Needless to mention that the Court
competent to take cognizance is not bound by the
view expressed by the Investigating Officer upon
completion of investigation. The Court is supposed to
form its own opinion on the basis of the materials
9
Contd......... placed by the Investigating Officer. But, when the
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Magistrate / Court on receiving the final report
directs for inviting protest/objection from the
Informant/complainant as against the final report, it
is deemed that he did not find any reason to differ
with the view expressed by the Investigating Officer,
for which he afforded opportunity to the
Informant/complainant to show reason by way of
protest as to why the final report submitted by the
Investigating Officer shall not be accepted. As per the
settled principle of law, if there is receipt any protest
from the Informant, the Court has to deal with the
same as per the provision under Chapter-XV of the
Cr.P.C., which lays down the procedure to be
followed by the Magistrate on receiving a complaint.
In the VGR Case aforesaid, there is neither any
protest from the side of the Informant nor adherence
to the Codal Procedure meant for complaint case by
the learned Court below. However, vide the order
dated 29.08.2011, the learned Special Judge
expressed his view regarding existence of prima-facie
10
Contd......... materials to proceed against the accused-petitioners
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for the offences under Sections 409 and 420 of IPC
and Sections 27(3)(a)/37(1)(a) of the Orissa Forest
Act, 1972 read with Section 3-A of the Forest
(Conservation) Act, 1980 and simultaneously
directed the prosecution to obtain the requisite
sanction from the appropriate authority. This order
of the learned Court below amounts to review of his
earlier order dated 28.10.2006 which is not
permissible under law.
9. Be that as it may, taking of cognizance of
offence is a condition requisite for initiation of a
proceeding under the Cr.P.C., and in the case at
hand, the precondition of sanction for the
prosecution having not been obtained, cognizance of
any offence has not been taken. To put in other
words, no proceeding has been legally instituted
against the accused-petitioners so as to summon
tem for appearance. Lodging of F.I.R. sets the law
into motion, but launching of prosecution or
initiation of a criminal proceeding is made with
11
Contd......... taking of cognizance. Therefore, the order dated
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18.03.2019 of the learned Special Judge, Vigilance
directing for issuance of summon is legally not
sustainable, in absence of any order of cognizance.
10. In VGR Case No.62 of 2003, to reiterate, the
learned Special Judge vide the order dated
10.08.2011 while differing with the view of the
Investigating Officer, recorded his own opinion
regarding existence of prima-facie materials against
the accused-petitioners for the offences under
Sections 409 and 420 of IPC and Sections
27(3)(a)/37(1)(a) of the Orissa Forest Act, 1972 read
with Section 3-A of the Forest (Conservation) Act,
1980, and without taking cognizance of those
offences in absence of the requisite sanction, he
directed for obtaining the sanction from the
concerned authorities. It may be mentioned that for
the purpose of sanction he did not distinguish the
offences from the view point of the P.C. Act and other
penal laws. It is, therefore, implied that the learned
Special Judge vide the aforesaid order directed for
12
Contd......... obtaining sanction for taking of cognizance of all the
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offences under the P.C. Act and other penal laws
indicated above. Admittedly, the State Government
declined sanction for prosecution of the accused-
petitioners, and the said order/communication of the
Government covers the whole case as registered
against the accused-petitioners. The learned Special
Judge vide the order dated 31.01.2019, however,
with an obvious reference to the above order of
refusal of sanction of the State Government, adopted
a strange procedure as against the accused-
petitioners which can not be sustained in facts and
law. The order of cognizance passed by him in
absence of the requisite sanction amounts to review
of his earlier order dated 10.08.2011 vide which he
had refrained from taking cognizance of the offences
in absence of the requisite sanction, i.e., the
sanction as applicable for prosecution of the accused
persons for the alleged offences under the P.C. Act
and also under the I.P.C. and Forest laws. Needless
to mention that the learned Special Judge is not
13
Contd......... empowered to review his own order.
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11. The learned Special Judge (Vigilance), Cuttack
has not cited good reasons much less with reference
to the facts and allegations on record, as to how the
alleged overt acts had no nexus with the exercise or
purported exercise of the official duty of the accused-
petitioners. The case of Romesh Lal Jain (supra) as
cited by the learned Special Judge is distinguishable
from the case at hand in the facts and
circumstances. It is the settled principle of law that
it is not every offence committed by a public servant
which requires sanction under Section 197 of
Cr.P.C., nor even every act done by him while he is
actually in the performance of his official duty. It has
also been held that it is no part of the duty of a
public servant to enter into a criminal conspiracy or
to indulge in criminal misconduct / breach of trust,
and hence in those cases want of sanction under
Section 197 of Cr.P.C. is no bar to take cognizance
and proceed against the accused-public servant.
But, every case has to be judged by its own factual
14
Contd......... and circumstantial peculiarities. A straightjacket
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formula cannot be adopted by merely taking note of
the section of offence, and without going through the
gravamen of the case. Further, when the State
Government who is the Authority competent to
accord sanction in the present case, has declined to
do so in express terms, the learned Special Judge
ought to have given justification in his order while
ignoring the same. In the facts and circumstances,
and for the reasons stated, the impugned order
dated 31.01.2019 passed in VGR Case No.62 of 2003
is also found to be not sustainable in law.
12. In the result, all the four CRLMCs are hereby
allowed with quashment of the impugned order
issuing process without taking cognizance of the
offence in V.G.R. Case No.61 of 2003 pending in the
Court of the Special Judge, Vigilance, Angul and also
the cognizance as well as prosecution in V.G.R. Case
No.62 of 2003 pending in the said Court, for the
reasons stated above, as against the petitioners.
MRS
...........................
S.Pujahari, J.
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