Orissa High Court
Sri Govinda Nag vs State Of Odisha .Vig. on 11 December, 2017
Equivalent citations: AIRONLINE 2018 ORI 436
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
ABLAPL No. 7909 of 2017
An application under section 438 of the Code of Criminal
Procedure in connection with Cuttack Vigilance Cell P.S. Case
No.12 of 2017 corresponding to V.G.R. Case No.10 of 2017
pending in the Court of Special Judge, Vigilance, Sambalpur.
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Sri Govinda Nag ........ Petitioner
-Versus-
State of Odisha (Vig.) ......... Opp. Party
For Petitioner: - Mr. Satya Sundar Kanungo
For Opp. party: - Mr. Niranjan Moharana
Addl. Standing Counsel
(Vigilance)
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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: 08.12.2017 Date of order: 11.12.2017
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S. K. SAHOO, J.The petitioner who was the Secretary, Regulated Market Committee (hereafter 'R.M.C.'), Sambalpur has filed this application under section 438 of Cr.P.C. for pre-arrest bail in connection with Cuttack Vigilance Cell P.S. Case No.12 of 2017 corresponding to V.G.R. Case No.10 of 2017 pending in the 2 Court of learned Special Judge, Vigilance, Sambalpur for offences punishable under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 and section 409 read with section 120-B of the Indian Penal Code.
2. On 29.04.2017 Mr. D.D. Sethi, D.S.P., Vigilance Cell, Cuttack lodged the first information report before the Superintendent of Police, Vigilance Cell, Odisha, Cuttack indicating therein that on the allegation that the petitioner along with two other Ex-Secretaries, R.M.C., Sambalpur have shown undue official favour to the suppliers towards purchase/expenditures of funds under the heading of dead stock furnitures, grading equipments and maintenance of weighbridge and weighing scale exceeding the budget provision during the year 2013-14, 2014-15 and 2015-16, the Vigilance enquiry was taken up and so far as the petitioner is concerned, the enquiry revealed that during the period of 2014-15 and 2015-16, the petitioner with an ulterior motive, by abusing his official position in connivance with different suppliers showed undue official favour to them by way of placing order towards purchase of dead stock furniture, grading equipments and maintenance of weighbridge, weighing scale to the tune of Rs.1,54,88,870/- as against the budgetary provision of Rs.32,00,000/- without taking 3 the approval of the OSAM Board and without assigning any reason which was in an excess of Rs.1,22,88,870/. It is further indicated in the F.I.R. that the petitioner and the other Ex- Secretaries have abused their official position with an ill intention to favour different suppliers without assigning any valid reason in connivance with the suppliers, made purchases/expenditures exceeding the budgetary provision showing undue official favour to the concerned Supplying Agencies and passed order for payment with ulterior motive to get pecuniary advantages for themselves and others.
On the basis of the first information report, the Superintendent of Police, Vigilance Cell, Odisha, Cuttack directed the Officer in charge, Vigilance Cell P.S., Cuttack to register the case and accordingly the case was registered.
3. Mr. Satya Sundar Kanungo, learned counsel appearing for the petitioner contended that the functioning of the every Market Committee is done as per the provisions provided under Chapter-III of the Odisha Agricultural Produce Markets Rules, 1958 (hereafter '1958 Rules'). In terms of Rule 25 of the 1958 Rules, the Chairman is the controlling and supervising officer of the Market Committee, who shall, inter alia, keep a watch over the financial and administrative matter of the Market 4 Committee. Chairman's detail power has been narrated under Rule 25(2)(a) to (e) of the 1958 Rules. Similarly Rule 25-A of the 1958 Rules envisages that every Market Committee shall have a Secretary and Rule 25-A(2)(xii) mandates the Secretary to make disbursement of all money lawfully payable by the Market Committee, provided that if individual disbursement exceeds Rs.500/-, it shall be passed by the Chairman. It is contended that the Sub-Collector, Sambalpur is the Chairman of the R.M.C., Sambalpur and therefore, the entire allegation of abuse of official position is out and out false as the petitioner had no such power to show any undue favour to anybody to enrich himself illegally. It is further contended that whatever expenditures were made, was based on the decision of the meeting of District Level Paddy Procurement Committee (hereafter 'DLPPC') which was attended by all the M.L.As, M.P. and Zilla Parishad Chairman of the locality under the chairmanship of the District Magistrate-cum-Collector, Sambalpur wherein the expenditure budget was sanctioned and direction was given to the R.M.C., Sambalpur to make such arrangements for paddy procurement and proper storage. It is further contended that as per the instruction of the Odisha State Civil Supplies Corporation Limited, all the R.M.Cs. had to make suitable arrangements for smooth paddy collection for which 5 respective District Level Committees all over the State made similar arrangements and while doing so, in the larger interest of public, the budget limitation of the OSAM Board was ignored with the approval of respective Chairman/Collector of the districts. It is further contended that in Sambalpur, a meeting was held under the Chairmanship of R.D.C. (Northern Division) where all the Collectors were also present and in the said meeting, it was decided to make suitable arrangements for smooth paddy procurement and liberty was given to the Collectors area wise to determine their required budgets and accordingly, the Collector, Sambalpur had approved and sanctioned the expenditures. It is further contended that the petitioner had only executed the decision of the Market Committee and he being only the Chief Executing Officer had acted on behalf of the Market Committee which had sanctioned and approved all financial transactions. It is further contended that the petitioner is no way responsible for the alleged excess expenditures and he is also no way involved in favouring any individual by abusing his official position. It is further contended that the initiation of case is not only illegal but also aimed to tarnish the reputation of the petitioner in the society. It is further contended that as per the direction of this Court, the petitioner appeared before the Investigating Officer 6 for the purpose of interrogation and fully cooperated with the investigation and there is no chance of absconding of the petitioner or tampering with the evidence and since the case has been instituted with malafide intention, unless the petitioner is granted pre-arrest bail, he will be seriously prejudiced.
4. Mr. Niranjan Maharana, learned Addl. Standing Counsel for the Vigilance department on the other hand produced the case diary and by filing counter affidavit of Inspector of Police (Vigilance), Bhubaneswar Cell (Vigilance) Unit contended that during the course of investigation, Minute Book of R.M.C., Sambalpur with effect from 20.01.2014 to 18.08.2017, proceeding of District Level Paddy Procurement Committee Meetings for the years 2014-15 & 2015-16 and other documents regarding annual budgets of R.M.C., Sambalpur for the relevant period have been seized and from the documents seized and investigation conducted so far, it is revealed that petitioner was the Secretary and Chief Executive of the Market Committee and he was the full time employee and he was the convenor of the R.M.C meeting. It is further contended that during course of investigation, it was revealed that the petitioner put up the draft budget estimate for the year 2014-15 in Committee for discussion on 18.11.2014 vide item no.5 and 6 of 7 the resolution, and thereafter, the same was sent to the OSAM Board for approval which is the only authority to approve the budgetary provision. The OSAM Board approved the budget and communicated the same to R.M.C., Sambalpur vide their letter No.2314 dtd.19.10.2015 for Rs.32,00,000/- in respect of 2014- 15 with conditions. It is further contended that the investigation revealed that during the year 2014-15, the petitioner had purchased dead stock store and grading equipment worth of Rs.1,20,51,732/- against the budgetary provision of Rs.32,00,000/- causing excess expenditure of Rs.87,51,732/-, which was also not placed by the petitioner before the Committee neither in the year 2014-15 nor in the year 2015-16 nor the same has been approved by the Board at any point of time. It is further contended that during investigation, it was revealed that in the proceeding of the DLPPC, Sambalpur for the period of 2014-15 and 2015-16, no specific direction/instruction had been given to the R.M.C. for the aforesaid huge purchases beyond budgetary provision and approval and only general instructions had been given to make proper arrangement for paddy procurement for the session 2014-15 and 2015-16 to avoid any difficulties and inconvenience. The DLPPC has no role to pay with regard to budget preparation, budget approval, 8 quantity of items to be purchased, excess purchase and approval of excess expenditure by the R.M.C. It is contended that neither the committee nor the Chairman had also taken any decision to approve/grant any excess expenditure beyond budgetary provision since they have no such power to do so. It is further revealed from the OSAM Board authorities that the excess purchases made by the petitioner were without any approval of R.M.C. as well as Board and it is a complete wastage of public money. It is further contended that as Secretary, the petitioner was expected to procure number of grading equipments actually required in the field by assessing the same from his experience as he is the executive head and full time employee and well acquainted with the paddy procurement process of the R.M.C. but he had procured five times more than the requirement with a malafide intention in order to get commission from the supplier. The excess expenditure made by the petitioner is not at all genuine and the equipments purchased were not being put to use in the field even for a single day. The excess grading equipment was stored in two big godowns idle since its procurement and there is no likelihood of its use for next six years. It is contended that no post-facto approval has been granted by the Board and it is prima facie apparent that the 9 petitioner has abused his official position and shown undue official favour to the suppliers with an ulterior motive. It is contended that since it is an economic offence which involves misutilisation of more than a crore of rupees of public money, the petitioner is not entitled to be released on bail. It is further contended that the petitioner appeared before the I.O. after getting the interim protection but he failed to explain anything rather took false pleas and took time to produce documents. It is further contended that the investigation is at initial stage and number of other relevant documents are yet to be seized and other relevant persons along with the petitioner are required to be interrogated after taking them into custody inasmuch as custodial interrogation of the petitioner is very much necessary for proper investigation of the case and if at this stage, the petitioner is released on anticipatory bail, there is every possibility of tampering/destruction of evidence, influencing the witnesses and therefore, the anticipatory bail application should be rejected.
5. The learned counsel for the petitioner by filing an additional affidavit in reply to the counter affidavit filed by the Investigating Officer contended that the petitioner was working as Secretary of R.M.C., Sambalpur from 11.09.2014 to 10 21.07.2016 on being deputed by Registrar of Cooperative Society, Odisha, Bhubaneswar. It is contended that the petitioner is not the competent authority to purchase dead stock, furniture, grading equipments etc. without the approval of the Committee/Chairman of the R.M.C. It is contended that in the DLPC meeting, it was decided that for the provision of CAP storage, tarpaulins/grading equipments were required to be purchased by the R.M.C. Learned counsel for the petitioner brought to the notice of the Court a letter issued by the Member Secretary of the Odisha State Agricultural Marketing Board dated 06.12.2013 which was addressed to the Chairperson of all R.M.Cs. annexed as Annexure-9 to the additional affidavit which indicates that the R.M.Cs. are fully empowered to procure the grading equipments, weighing equipments, polythene and other items required for paddy procurement as per the recommendation of DPC and no approval is required from the OSAM Board for the same. It is further contended that the annual budget is only a revenue expenditure assessed at the beginning of the marketing year which means the expenses incurred towards improvement of infrastructure, purchase of grading equipments and for their maintenance which does not come within the ambit of approved budget of the OSAM Board 11 and shall not be treated as revenue expenditure. It is further contended that a severe cyclonic storm "Hudhud" was anticipated by the Government for which for safe storage of paddy and also to provide certain facilities on emergent basis, the Collector, Sambalpur had instructed to all R.M.Cs. to take all possible measures to withstand the calamity and heavy rainfall and therefore, the petitioner being the Secretary of the R.M.C. was duty bound to implement the Government instruction for the best interest of the farmers and he could not have questioned his higher authorities that such expenses would exceed the approved budgetary limit of the OSAM Board. It is contended that even if it is assumed that the purchase was irregular, the petitioner cannot be made liable for the same as there is no allegation of wrongful gain by the petitioner. It is contended that whatever purchases were made and materials procured, those were strictly as per OSAM guidelines and from OSAM Board approved farm/suppliers which was disputed by the learned counsel for the Vigilance department.
6. In the case of Nimmagadda Prasad -Vrs.- C.B.I. reported in (2013) 7 Supreme Court Cases 466, it is held as follows:-
"25. Economic offences constitutes a class apart and need to be visited with a different approach 12 in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and consider as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
In the case of State rep. by the C.B.I. -Vrs.- Anil Sharma reported in (1997) 7 Supreme Court Cases 187, it is held as follows:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."13
In the case of Muraleedharan-v-State of Kerala reported in A.I.R. 2001 S.C. 1699, wherein it is held as follows:-
"7.....Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy. We express our reprobation at the supercilious manner in which the Sessions Judge decided to think that "no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused." Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to connect the appellant with the crime. The order of the Sessions Judge, blessing the appellant with a pre-arrest bail order, would have remained as a bugbear of how the discretion conferred on Sessions Judge under Section 438 of the Cr.P.C. would have been misused. It is heartening that the High Court of Kerala did not allow such an order to remain in force for long."
In the case of Promod Kumar Panda -Vrs.-
Republic of Indian reported in (2015) 60 Orissa Criminal 14 Reports 660, while dealing with the anticipatory bail application of the petitioner in that case, I have held as follows:-
"17. What is "custodial interrogation"?
"Custody" means formal arrest or the deprivation of freedom to an extent associated with formal arrest. "Interrogation" means explicit questioning or actions that are reasonably likely to elicit an incriminating response. Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called "custodial interrogation". The Court has to strike a balance between individual's right to personal freedom and the investigational rights of the police. On one hand, the Court has to prevent harassment, humiliation and unjustified detention of an accused, on the other hand it is to see that a free, fair and full investigation is not hampered in any manner. When an application for anticipatory bail of an accused is objected to by the State on the ground of necessity of custodial interrogation, the Court can scan the materials available on record and ask the State to satisfy as to in what way the custodial interrogation would benefit the prosecution. The satisfaction of the Court would depend upon several facts viz., the nature of offence, the stage at which the investigation is pending, the materials which could not be traced out by the Investigating Agency due to absence of custodial interrogation and the benefit which the prosecution would get on account of custodial interrogation of the accused. It cannot be stated that in which particular type of cases 15 or particular type of accused, the custodial interrogation would be mandatory. It would all depend upon the facts and circumstances of each case. No strait jacket formula could be laid down. When the accused makes out a case for anticipatory bail, it is not to be defeated by mere asking for custodial interrogation by the prosecution without satisfying the necessity for the same. Of course in terms of section 438 (2)
(i) Cr.P.C., the Court can impose a condition on the accused to make himself available for interrogation by the Investigating Officer as and when required. Sometimes the custodial interrogation of suspects would give clue regarding criminal conspiracy and identity of the conspirators and it may lead to recovery of the incriminating materials. Sometimes at the crucial stage of investigation, the custodial interrogation would be a boon to the Investigating Officer. The person in custody likely to be interrogated has a right to remain silent. On some questions, he may answer and on some questions, he may remain silent or refuse to answer. Nobody can be compelled to answer to a particular question.
No third-degree method is to be adopted for elicitating any answer. It is illegal to employ coercive measures to compel a person to answer. The Investigating Officer is bound to provide the arrested accused to meet an advocate of his choice during interrogation though not throughout interrogation as required under section 41-D Cr.P.C."
In case of Adri Dharan Das -Vrs.- State of West Bengal reported in A.I.R. 2005 S.C. 1057, the Hon'ble Supreme Court held that the power exercisable under section 16 438 of the Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the petitioner may be falsely implicated or where there are reasonable grounds of holding that a person accused of an offence is not likely to otherwise misuse his liberty, then the power is to be exercised under section 438 of the Code.
In case of Bharat Chaudhary -Vrs.- State of Bihar reported in A.I.R. 2003 S.C. 4662, the Hon'ble Supreme Court held that the object of section 438 of the Code is to prevent undue harassment of the accused person by pre-trial arrest and detention. It was held that the gravity of the offence is an important factor to be taken into consideration while granting anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the Courts concerned while entertaining for grant of anticipatory bail.
7. Adverting to the contentions raised by the respective parties and scrutinizing the materials available on record, it prima facie appears that the petitioner was the Secretary, R.M.C., Sambalpur during the period 2014-15 and 2015-16 which is not disputed by the learned counsel for the petitioner. It further appears that there has been excess purchase of dead stock furnitures and grading equipments and maintenance of 17 weighbridge and weighing scale to the tune of Rs.1,22,88,870/- during the relevant period. The statement of Bimalendu Ray, the then Sub-Collector, Sambalpur who was the Ex-Officio Chairman of R.M.C., Sambalpur indicates that no specific decision was taken in the meeting with regard to specific quantity of materials to be procured by the R.M.C. for making necessary arrangements for paddy procurement in the market yard and it was the duty of the petitioner as Secretary to prepare detailed procurement plan taking into account the inventory of available stock of dead stock, grading equipments and other provisions of R.M.C., Sambalpur within budgetary limit and the proposal submitted by the petitioner for procurement of the required articles in the concerned file was neither specifically approved by the committee nor by him as Chairman. The statement further reveals that there was ample scope available with the petitioner to incorporate the excess expenditure incurred in the annual budget of the year 2014-15 but he had not done it and he had never placed the draft budget estimate for discussion in the committee meeting and without budgetary provision, he had purchased some articles under heading of dead stock and grading equipments. The other statements which are produced by the learned counsel for the Vigilance department indicate that 18 the petitioner had purchased huge quantities of equipments which were not at all required either in the year 2014-15 or in 2015-16 without budgetary approval either from the R.M.C. or DPC or from the Board and no clarification in that respect was sought for by the petitioner and the equipments were purchased unauthorisedly and from unauthorized dealers which is completely illegal and it was a sheer wastage of public money. Even prima facie materials have come on record that there was no necessity for such excess expenditure and the equipments purchased were not put to use for a single day after its procurement. It has also come out during investigation that neither there was any budgetary provision nor there was any prior approval of any authority before making such excess expenditure nor it has got post-facto approval. Prima facie materials have also come on record that purchases were made illegally from unauthorized dealers. In what way, the petitioner had been benefited by making such excess expenditure and showing undue favour to the unauthorized dealers is likely to come out during course of investigation. Since the investigation is under progress, it would not be proper to enter into a detailed examination of the materials available so far against the petitioner at this stage. In view of the nature and gravity of the 19 accusation and the role played by the petitioner which has come out so far by way of oral and documentary evidence in causing loss of more than one crore of rupees of public money to the State exchequer, prima facie material to show that the petitioner has misutilised his official position in causing such loss, I am of the view that if the petitioner is ensconced with a favourable order of pre-arrest bail then his future interrogation would be a futile exercise particularly in view of the objection raised by the investigating agency that the petitioner has not cooperated with the interrogation. When the petitioner was granted interim protection by this Court to appear before the Investigating Officer and to cooperate with the interrogation, he could have shown his bonafideness in explaining to the Investigating Officer the circumstances under which the excess expenditures were made, its necessity and his authority to make such expenses in spite of Rule 25-A(2)(xii) of 1958 Rules. His failure has raised accusing finger at him. The apprehension of the Investigating Agency that in the event the petitioner is protected with an order of anticipatory bail, there is reasonable apprehension of tampering with the witnesses has also got sufficient force. The F.I.R. has been registered only on 29.04.2017 and though the investigation has progressed to some extent but there are many 20 other important aspects which are likely to be unearthed in the case and custodial interrogation of the petitioner may provide many useful information and materials to the Investigating Agency on such aspect. I am of the humble view that grant of anticipatory bail would cause serious prejudice to the free, fair and full investigation and therefore, after evaluating the available materials with utmost care and caution, I am not inclined to exercise the discretionary power under section 438 of the Code by granting pre-arrest bail to the petitioner.
Accordingly, the anticipatory bail application stands rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 11t December, 2017/Pravakar/Sisir