Orissa High Court
Nanda Kishore Prasad Sinha vs Republic Of India [Alongwith Crlmc No. ... on 9 March, 2005
Equivalent citations: 2005(I)OLR645
Author: R.N. Biswal
Bench: R.N. Biswal
JUDGMENT R.N. Biswal, J.
1. All the three cases being inter-linked and the parties therein being same they are heard together and a common Order is passed hereunder.
2. M/s. Jayanta Pharma Agency is the C. & F Agent of M/s. Orissa Drugs and Chemical Limited, Bhubaneswar (hereinafter referred to as 'O.D.C.L.) for whole of Pondichery State. As per the agreement M/s. Jayanta Pharma was entitled to C. & F. Commission of 4% from O.D.C.L. for depot maintenance. As Commission M/s. Jayanta Pharma Agency was to get a sum of about Rs. 32 lakhs from O.D.C.L. to collect the said commission Shri A. K. Kotadia the proprietor of M/s Jayanta Pharma Agency contacted Shri N. K.. Prasad Sinha, the then in-charge M.D. of O.D.C.L. It is alleged that on 6.5.2003 when Shri Kotadia contacted the in-charge M.D. of O.D.C.L. for release of the aforesaid commission, he demanded Rs. 10,000/- for releasing a part of the commission and instructed him to pay the same in his house at V.S.S. Nagar, Bhubaneswar. So, Mr. Kotadia lodged a complaint against Shri Sinha on the basis for which F.I.R. No. RCBHU 2003A0009 dated 6.5.2003 was registered by the C.B.I. A case-bearing No. RC09 (A)/2003 was registered against Shri Sinha on the basis of the said F.I.R. which corresponds to T.R. No. 1/2004 pending before the learned Special Judge, (CBI), Bhubaneswar. Pursuant to such information of Mr., Kotadia a trap was organized by the C.B.I. team. After completion of Investigation final report was submitted under Section 173 the Cr.P.C. on the ground that the evidence available was not adequate to launch the prosecution against the accused since the transaction of giving and taking of Rs. 10,000/- was not seen/heard by any independent witness or the trap laying officer.
3. The, learned Special Judge, CBI, Bhubaneswar after perusing the case diary and final report submitted under Section 173 Cr.P.C. held that there is material to hold that the complainant gave bribe as per the pre-arranged plan and the same was accepted by the accused Shri Sinha. So by the aid of Section 20 of the P.C. Act he arrived at a conclusion that there was prima facie material under Section 7/3(1)(d) read with Section 13(2) punishable under Section 13(2) of the P.C. Act, against the accused and accordingly took cognizance thereunder and ordered to Issue summons to the accused fixing his appearance to 10.4.2004 vide his Order dated 8.1.2004.
4. In Criminal Misc. Case No. 853 of 2004 accused-N.K. Prasad Sinha challenged the Order of taking cognizance of the aforesaid offence against him. In Criminal Misc. Case No. 1625 of 2004 the Republic of India through the Superintendent of Police, CBI, Bhubaneswar also challenged the said Order on the ground that before obtaining prior sanction as required under Section 19 of the P.C. Act the learned Special Judge, CBI, Bhubaneswar illegally took cognizance of the aforesaid offence against the accused-Shri Sinha.
5. In Criminal Revision No. 842 of 2004. accused-N. K. Prasad Sinha challenged the Order dated 24.9.2004 passed by the learned Special Judge, CBI, Bhubaneswar in rejecting his application dated 22.9.2004 filed under Section 457 Cr.P.C. in T.R. No. 1 of 2004 for release of some of documents seized by the CBI during investigation of the case on the twin grounds that the accused had not appeared before the Court and that the case had been stayed by this Court.
6. Admittedly, Shri N. K. Prasad Sinha is a Government servant. So, prior sanction from the competent authority is required under Section 19 of the P.C. Act before taking cognizance of the offence under Section 13(2) of the said Act against him. Since, it has not been done so, the Order of taking cognizance is bad in law on the very face of it, consequently, the same is liable to be set aside.
7. Accordingly, the Order dated 8.1.2004 passed by the learned Special Judge, CBI, Bhubaneswar, taking cognizance of the offenee under Section 13(2) of the P.C. Act against the accused-petitioner Shri Sinha is set aside.
8. However there is no bar for the learned Special Judge, CBI to proceed with the case in accordance with law after receipt of appropriate sanction Order from the competent authority.
9. As mentioned earlier, in Criminal Revision No. 842 of 2004 the petition filed by the accused-petitioner under Section 457 Cr.P.C. for release of certain documents was rejected by the learned Special Judge, CBI, Bhubaneswar on the ground that the accused-petitioner had not appeared by then before the Court below and that further proceeding had been stayed by this Court. Non-appearance of the accused before the Court below Is not a ground to reject his petition under Section 457 Cr.P.C. Since all the three cases dealt with now are disposed pf, the Order of stay of further proceeding in T.R. No. 1 of 2004 as passed by this Court no longer survives. Therefore, the learned Special Judge, CBI may release the documents as applied for by the accused-petition in accordance with law.
11. With the above observations all the three cases viz. Criminal Revision No. 842 of 2004, Criminal Misc. Case No. 853 of 2004 and Criminal Misc. Case No. 1625 of 2004 are allowed and the impugned orders passed therein are set aside.