Orissa High Court
Kumar Raghavendra Singh vs Union Of India And Ors on 13 December, 2017
Author: J.P. Das
Bench: J.P. Das
ORISSA HIGH COURT, CUTTACK.
CRIMINAL MISC CASE NO. 701 OF 2016
(Applications under Section 482 of the Code of Criminal
Procedure, 1973 in connection with T.R.Case No.01/22 of 2013-
2011 arising out of Cuttack Vigilance P.S. Case No.02 of 1996
pending on the file of Special Judge, Vigilance, Bhubaneswar)
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Kumar Raghavendra Singh ....... Petitioner.
-versus-
Union of India & Ors. ....... Opp-Parties.
For Petitioner : M/s.S.K.Mund. H.K. Mund
A.R.Mohanty, A.K.Dei.
For Opposite Party No.1 : Additional Standing Counsel
For Opposite Party No.2 : Mr.S. Das
Senior Standing Counsel.
For Opposite Party No.3 : M/s A.K.Bose,
A. Mohanty
PRESENT:
THE HONOURABLE SHRI JUSTICE J.P. DAS
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Date of hearing: 01.12.2017 Date of judgment :13.12.2017
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J.P.Das, J This is an application under Section 482 of
the Criminal Procedure Code with a prayer to quash
the criminal proceeding against the petitioner vide T.R.
Case No.01 of 2013 on the file of learned Special
Judge, Special Court, Bhubaneswar which was
originally pending before the learned Special Judge,
Vigilance, Bhubaneswar vide T.R. Case No.22 of 2011,
2
arising out of Cuttack Vigilance P.S. Case No.02 of
1996 charge sheeted for the offences punishable under
Section 13(2) read with Section 13(i)(e) of the
Prevention of Corruption Act, 1988.
2. With the allegations of accumulation of
assets beyond known source of income by the
petitioner who was working as the Planning Officer in
the Office of the Principal Chief Conservator of Forest,
Bhubaneswar an enquiry was conducted and pursuant
thereto his house and office were searched by the
Vigilance Department on 22.12.1995. Finding
incriminating materials, the F.I.R. was registered
against the petitioner on 08.01.1996 with the
allegations that during the period from 01.05.1982 to
29.12.1995, he committed criminal misconduct acquiring disproportionate assets to a tune of
Rs.14,38,435/- which, he could not account for satisfactorily. After completion of investigation, sanction order was obtained from the Ministry of Environment and Forest, Government of India, since the petitioner was an I.F.S. Officer and the charge sheet was submitted on 31.12.2010. The learned Special Judge, Vigilance, Bhubaneswar took cognizance of the offences by order dated 27.04.2012. Thereafter, the petitioner filed Writ Petition (Criminal) 3 No. 674 of 2011 before this Court with a prayer to quash the proceeding on the grounds of malafide investigation, invalid sanction and the delay in the prosecution. The matter was considered and some interim orders were passed directing the vigilance department to produce certain documents and by order dated 21.02.2016, the petitioner was permitted to convert the writ petition to criminal application under Section 482 of the Criminal Procedure Code and consequently the present application was renumbered and placed for consideration.
3. The petitioner has assailed the order of cognizance mainly on the grounds as follows:
(i) the investigation was unfair and
misdirected since the income of the
petitioner from agriculture was not taken into consideration. The income of the wife and financial assistance received from the family members of the petitioner were also not taken into consideration even though those were shown by the petitioner in his income tax returns;
(ii) the valuation of the properties was inflated reducing the expenditure undertaken by the petitioner, which if 4 considered properly would show the assets of the petitioner to be much less than his known source of income;
(iii) the properties and assets of the petitioner acquired prior to the check period were wrongly calculated while assessing the assets of the petitioner;
(iv) the sanction order obtained against the petitioner was invalid for the reasons that although the sanctioning authority asked the State Government and the Investigating Agency to re-consider the submissions made on behalf of the petitioner, those were not considered and the sanction order was obtained in a mechanical fashion and
(v) there has been a delay of more than twenty years in the meantime which has seriously prejudiced the petitioner having spent all these years with mental agony and apprehension.
4. The learned counsel for the petitioner while submitting the aforesaid points, placed different materials on record with the contention that the pleas as taken by the petitioner regarding his source of income were placed before the Investigating Agency but 5 those were not properly considered and valuations have been assessed with imaginary calculations. It was strenuously contended that the petitioner has shown all his income in his income tax returns and in statements of assets submitted to his employer but all those were not taken into consideration by the Investigating Agency. It was mostly stressed upon that despite repeated correspondences from the Government of India to the State Government and communicated to the Investigating Agency to consider the submissions of the petitioner with regard to the sanction order, those were not considered by the Investigating Agency and hence, the sanction order was not valid and proper. Lastly, it was submitted that there is inordinate delay in the proceeding of this case.
5. Per contra, it was submitted by learned counsel appearing for the State, Vigilance, that the contentions as to the details of income of the petitioner from other sources and the allegation that those were not properly considered by the Investigating Agency are the materials, which may be considered at the time of trial, but it is not permissible to be thrashed out at the time of taking cognizance. It was further submitted that the materials as found in course of investigation made out a prima-facie case against the petitioner for 6 the alleged offences and hence the order of cognizance passed by the learned trial court cannot be quashed in exercise of the power under Section 482 of the Criminal Procedure Code. As regards the delay in the proceeding, it was submitted on behalf of the State, Vigilance, that the investigation of the case was completed in the year 2002 but the sanction was obtained in the year 2010 only for the dilatory tactics adopted by the petitioner by making repeated representations to the Government of India as well as to the State Government and in the process the sanction order was delayed and after obtaining the same in the year 2010 the charge sheet was immediately submitted. It was further submitted that even after filing of the charge sheet and taking of cognizance, the matter has been delayed due to the application filed by the petitioner before this Court and hence, the delay in the proceeding cannot be attributed to the prosecuting agency so as to consider any benefit in favour of the petitioner. Thus, it was submitted that the petitioner does not have any merit in his contentions so as to get the relief as has been prayed for.
6. A number of citations have been placed on behalf of both the sides in support of their respective contentions.
77. It was submitted by the learned counsel for the petitioner that the cognizance in a case can be quashed, if it is found out that the investigation is perfunctory and no prima-facie case is made out against the petitioner. As against this, it was submitted on behalf of the State, Vigilance that the material particulars to make out a case in favour of the petitioner have been submitted in the charge-sheet and the discrepancies, as alleged can be gone into only in course of trial but not at the time of taking cognizance of the offence.
8. The position of law is undisputed that at the time of taking cognizance, the court is simply to see as to whether the allegations as brought out on record without being controverted make out a prima-facie case against the accused. At the time of taking cognizance, the possible defence to be taken by the accused or the materials to controvert the allegations against the accused are not permissible to be scanned through. In the case at hand, the detailed calculation sheets have been prepared showing that the petitioner was in possession of the assets disproportionate to his known source of income. Some materials were placed by the learned counsel for the petitioner submitting that the incomes of the petitioner were not properly 8 calculated and imaginary valuations have been placed and those, if considered in proper perspective, shall make out no case against the petitioner. It was also submitted that the documents as relied upon by the petitioner were very much before the Investigating Agency and are on record, which need to be considered for granting the relief in favour of the petitioner. Suffice it to say that the court is not required to go into the details of the materials either in favour of the prosecution or in favour of the accused at the time of taking cognizance, if simply on the face of the record, the allegations, as made, make out a prima-facie offence. Here, in order to consider the submissions made on behalf of the petitioner, this Court has to enter into a detailed calculation of the income of the petitioner from other sources, the expenditures claimed to have been incurred and the assessment of valuation of the properties, which is neither feasible nor permissible at this stage.
9. As regards the validity of the sanction order, it was submitted on behalf of the State that once a sanction is granted, it cannot be reviewed or recalled. It was submitted by the learned counsel for the petitioner that as per the settled position of law the granting of sanction being an administrative act can be reviewed 9 and recalled. Be that as it may, in this case sanction order has not been recalled, but simply some correspondences were made between the Central Government and the State Government regarding consideration of the representations of the petitioner made before them. In this regard, it was submitted and placed on behalf of the State, Vigilance, that being asked for by the Government of Odisha in G.A. Department, replies have been furnished and all those correspondences being subsequent to the completion of investigation, it was intimated that all the objections raised by the petitioner had been taken into consideration during the investigation. That part, it is not the case of the petitioner that there was no sanction or the sanction order was invalid on some legal grounds so as to quash the order of cognizance. Of course, it was submitted on behalf of the State, Vigilance that the prosecution against the petitioner being under the order of the Special Court Act, no sanction is necessary whereas it was submitted by the learned counsel for the petitioner that the relevant provision having come into effect much after the completion of the investigation in this case, the contentions raised on behalf of the state, Vigilance is not tenable. However, I do not want to delve into that question in view of my aforesaid observation that there 10 existed a sanction order against the petitioner which was not recalled by the concerned authority.
10. Now, coming to the question of delay, it is the own case of the petitioner that he made several representations to the Central Government as well as to the State Government between the period of 2004 to 2010 and in the process there was delay in obtaining the sanction order. Thereafter the cognizance was taken in the year 2012 and thereafter, the petitioner has also assailed the prosecution before this Court in different forums. Thus, the delay in the proceeding of the present case cannot be attributed solely to the prosecution, for quashing of cognizance.
11. It needs no mention that a case wherein corruption against a public servant, moreso like the petitioner holding a high ranking Office has been made, cannot be thrown out merely on the ground of delay.
12. In view of the aforesaid discussions and findings, I am of the considered opinion that the contentions as raised on behalf of the petitioner cannot be gone into at the time of taking cognizance and the petitioner if so advised can raise those at the time of framing of charge which would be considered according 11 to law by the learned trial court. Since the matter has been delayed, the learned trial court would do well to complete the trial as expeditiously as possible and the petitioner shall co-operate for the purpose.
Accordingly, this application is dismissed being devoid of any merit and disposed of accordingly.
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J.P. Das, J.
Orissa High Court, Cuttack Dated 13th December 2017/ Lingaraj