Orissa High Court
Narendra Kumar Sahoo vs State Of Odisha (Vigilance) & Anr. ... on 13 February, 2019
Equivalent citations: AIRONLINE 2019 ORI 39, 2019 CRI LJ 1799, (2019) 127 CUT LT 849, (2019) 74 OCR 275
Author: A. K. Mishra
Bench: A. K. Mishra
HIGH COURT OF ORISSA: CUTTACK.
CRLMC No.2564 of 2018
An application under Section 482 of the Code of Criminal Procedure.
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Narendra Kumar Sahoo .......... Petitioner.
- Versus-
State of Odisha (Vigilance) & Anr. .......... Opposite Parties.
Counsel for Petitioner :M/s. Tusar Kumar Mishra and P.
Bastia.
Counsel for Opp. Parties :Mr. Niranjan Moharana, Addl.
Standing Counsel (Vigilance)
PRESENT:
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
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Date of hearing and Judgment : 13.02.2019
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Dr. A. K. Mishra, J. In this Lis U/s.482 Cr.P.C. the following prayer has been
made:-
"To quash the order of sanction dtd.1.7.2015 and further
to set aside the order dtd.12.3.2018 under Annexure-7
passed in TR No.35 of 2015 of the Court of learned
Special judge (Vigilance), Bhubaneswar."
2. The impugned order dtd.12.3.2018 of learned Special
Judge, (Vigilance), Bhubaneswar reveals that the learned Special
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judge refused to discharge the accused - petitioner U/s.239 Cr.P.C
as there was sufficient material to the effect that the accused
while accepting gratification, was successfully trapped. Annexure-2 is
the sanction order bearing No.1990 dtd.01.07.2015 issued by the
Collector, Puri as required U/s.19(1)(c) of Prevention of Corruption
Act, 1988 (in short the „P.C. Act, 1988‟).
3. The case of prosecution in brief is that on 22.12.2014 on
the receipt of F.I.R. from one Pravakar Behera Vigilance P.S. Case
No.59 of 2014 was registered. The allegation of informant was that
the present petitioner - accused had demanded a sum of Rs.3000/-
to convert the agricultural land to homestead and considering the
inability of the informant, agreed to take Rs.2300/-. On 20.12.2014
he had taken Rs.500 and it was agreed that balance Rs.1800/- would
be taken on 22.12.2014. Accordingly the vigilance officers conducted
trap on 22.12.2014 at about 4.30 P.M. and recovered tainted money
of Rs.1800/- from the accused petitioner. After completion of
investigation charge-sheet was submitted U/s.13(2) read with Section
13(1)(d) and Section 7 of the P.C. Act, 1988.
4. Learned counsel for the petitioner Mr. Tusar Kumar
Mishra made the following submissions:-
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(i) That while according sanction, the Collector, Puri had not
applied his mind and had not called for a report from the
Tahasildar, Gop who vide his letter bearing No.3718
dtd.22.12.2014, had informed in writing that vigilance
personnel had forcibly trapped the petitioner.
(ii) That on the fateful day at about 4.30 P.M., while the Tahasildar
and accused - petitioner were discussing about some official
work, the vigilance staff entered inside and enquired about as
to whether accused was dealing with the matter U/s.8(a) and
19(c) of the OLR Act and for that the trap story is implanted to
harass the petitioner.
(iii) That the informant on 19.11.2014 had applied for conversion of
his agricultural land which was registered as OLR Case No.141
of 2014 and it was sent to the Revenue Inspector, Nagpur
under Gop Tahasil and for that on the date of trapping, the file
was not pending with the Jr. Clerk, i.e. the present petitioner.
(iv) The copy of examination report bearing No.1053 dtd.16.5.2015
of State Forensic Science Laboratory, Rasulgarh, Bhubaneswar,
reveals that phenolphthalein could not be detected in the
sodium carbonate solution contained in the glass bottle having
right hand wash of accused (Ext.C) while the same was
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detected in respect of one Suresh Kumar Jena vide Ext.B
which unerringly proves the absence of petitioner during trap.
5. Mr. Niranjan Moharana, learned Addl. Standing Counsel
(Vigilance) repelled the above contention stating that the letter of
Tahasildar to the sanctioning authority Collector, Puri unfolds that
trap was conducted and tainted money was detected and recovered,
as such it could not be said that the sanction order was invalid and
there was no material to implicate the accused petitioner.
In support of such contention, he has relied upon two
decisions of Hon‟ble Supreme Court reported in (2009) 43 OCR (SC)
497, State of M.P. Vrs. Virendra Kumar Tripathi and AIR 2012 SC
858, Dinesh Kumar Vrs. Chairman, Airport Authority of India
and Another.
He also brought to the notice of this court Section 7(d) of
P.C. Act, 1988 to contend that accused had received gratification as a
motive or reward for doing the act.
6. In Virendra Kumar Tripathi decision (supra) their
Lordships of Hon‟ble Apex Court, at paragraph 6 held as follows:-
"6. xxxxxxxx. The said provision makes it clear that
no finding, sentence or order passed by a Special Judge
shall be reversed or altered by a court of appeal on the
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ground of absence of / or any error, omission or
irregularity in sanction required under sub-section (1) of
Section 19 unless in the opinion of the Court a
failure of justice has in fact been occasioned thereby. In
the instant case there was not even a whisper or pleading
about any failure of justice. The stage when this failure is
to be established yet to be reached since the case is at the
stage of framing of charge whether or not failure has in
fact been occasioned was to be determined once the trial
commenced and evidence was lead. In this connection the
decisions of this court in State V. T. Venkatesh Murthy,
2004 (7) SCC 763 and in Prakash Singh Badal V.
State of Punjab, 2007(1) SCC 1 need to be noted."
In the Dinesh Kumar decision (supra) their Lordships of
Hon‟ble Apex Court, at paragraph 13 held as follows:-
"13. In our view, having regard to the facts of the present
case, now since cognizance has already been taken
against the appellant by the Trial Judge, the High Court
cannot be said to have erred in leaving the question of
validity of sanction open for consideration by the Trial
Court and giving liberty to the appellant to raise the issue
concerning validity of sanction order in the course of trial.
Such course is in accord with the decision of this court in
Prakash Singh Badal and not unjustified."
7. In the light of the above law enunciated by the Hon‟ble
Apex Court, the facts presented, prima facie shows that sanction
order was issued of which validity can be tested at the time of trial.
Whether petitioner - accused had demanded and accepted
gratification as a motive, can also be considered during trial. So also
the plea of defence advanced here.
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Section 239 Cr.P.C. envisages that if the charge, on
consideration, is found not groundless, the accused cannot be
discharged.
In the wake of above analysis, in my considered opinion,
the impugned order does not suffer from any infirmity, hence
interference at this stage is uncalled for.
Accordingly the CRLMC stands dismissed.
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Dr. A. K. Mishra, J.
Orissa High Court, Cuttack, Dated the 13th February , 2019/mkp