Dismissed

Laxman Kumar Behera v. State of Odisha(Vig.)

Orissa HC24 Nov 2021CRLREV/391/2021

Case brief

AI extract

What is this about?

In a criminal revision under Sections 397 and 401 Cr.P.C., the High Court dismissed the petitioner's challenge to the Special Judge's order rejecting the discharge application. The Court upheld the proceeding against the petitioner for corruption, finding sufficient grave suspicion based on trap evidence, physical trace evidence, and corroborative statements.

What did the court decide?

Criminal Revision No. 391 of 2021 is dismissed as bereft of merit with observations that trial should proceed independently.

Laxman Kumar Behera Vs State of Odisha(Vig.) — Corruption | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLREV No. 391 of 2021

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Laxman Kumar Behera …. Petitioner Mr. Saswat Das, Advocate

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-versus-

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State of Odisha (Vigilance Deptt.) …. Opposite Party Mr. Sangram Das, Standing Counsel (Vigilance)

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CORAM: JUSTICE SAVITRI RATHO

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Order No.

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ORDER 24.11.2021

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1. I have heard Mr. Saswat Das, learned counsel for the petitioner and

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Mr. Sangram Das, learned Standing Counsel (Vigilance) through hybrid mode.

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This is an application under Section 397 read with Section 401 Cr.P.C. challenging the order dated 28.09.2021 passed by the learned Special Judge (Vigilance), Jeypore in G.R. No. 19 of 2013 (V) rejecting the application for discharge, filed by the petitioner against whom chargesheet had been submitted for commission of offences punishable under Section 7, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

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The prosecution case in short is that the present petitioner while working in the office of the I.T.D.A., Malkanagiri demanded and accepted bribe to the tune of Rs.3,00,000/- from a contractor, namely, Dinesh Kumar Pallo who had executed four numbers of road work at an estimated cost of

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Rs.5,00,000/- each. On 25.08.2013 when the said contractor contacted the

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petitioner to check the measured works and thereafter pass the bill for payment, it is alleged that the petitioner demanded bribe of Rs.3,00,000/- for the said measurement and threatened the said contractor that he will not check

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the measurement of the said works unless he gets the amount. Finding no other way out the said contractor approached the Vigilance authorities on 25.08.2013 and a trap was set and on 26.08.2013 after conversation over telephone with the petitioner and the petitioner had called up the decoy asking him the reason for delay in arrival , the complainant r met the petitioner at Circuit House, Room No.3 and handed over the money which he kept under the mattress of the bed .The petitioner did not allow the overhearing witness to enter the room and he remained outside . But he entered the room alongwith the vigilance officials after the complainant had handed over the money. The entire bribe money of Rs.3,00,000/- was recovered from the possession of the petitioner and both the hands were put in the sodium carbonate solution , the colour of the solution turned pink. He was arrested on 27.08.2013 at 1:00 A.M. and forwarded to the Court on the same day. F.I.R. vide Koraput Vigilance P.S. Case No. 31 of 2013 pertaining offence under Sections 7, 13(2)

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read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. After investigation, chargesheet was submitted against the petitioner was the said offences.

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Mr. Saswat Das, learned counsel for the petitioner submits that although a number of ground s had been raised in the application for discharge, but the learned trial Court did not apply his mind to the materials on

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record by sifting through them, but has acted mechanically like a post office

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and accepted the prosecution case and rejected his application illegally. He submits that it being the admitted case of the prosecution that the accompanying witness has not seen the demand and acceptance of bribe amount as he was not in the room, the material gathered by the prosecution suffers from basic infirmities and there is not enough material to proceed against the petitioner, for which his application for discharge should have been allowed. He relies the decision of the Apex Court in the case of Sanjay Kumar

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Rai vrs. State of Uttar Pradesh and Ors. reported in AIR 2021 SC 2351, wherein the Hon’ble Supreme Court has held at para 16 :-

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“ ……16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [ Union of India v. Prafulla Kumar Samal ]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be …..”

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Mr. Sangram Das, learned Standing Counsel (Vigilance) submits that the statements of the complainant and overhearing witness have been recorded under Section –164 Crl.P.C. and both have supported the prosecution case. He further submits that it is true that the petitioner did not allow the overhearing witness to enter the room but the statement of the complainant regarding demand and acceptance of the bribe is sufficient to proceed against the petitioner and his statement has been corroborated by the statements of the

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overhearing witness , the officials who were part of the Vigilance team , the

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phone call records of the petitioner and the hands of the petitioner turning pink when put in the sodium carbonate solution immediately after the officials entered the room. These factors raise a grave suspicion against the petitioner which is enough to frame charge. He finally submits that while considering the application for discharge, the broad probabilities of the case have to be considered and the truth of the statements of witnesses are not to be tested which should only be done at the stage of trial.

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Perusal of the impugned order reveals that the learned Special Judge

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(Vigilance) was aware of the fact that the accompanying witness was not allowed to enter inside the room. He has also referred to the fact that both the hands of the petitioner turned pink when handwash of his hands were taken after the vigilance trap party entered the room and held his hands. He has also referred to the principles laid down by the Hon’ble Supreme Court in the decisions rendered in Hardeep Singh vs. State of Punjab : (2014) SCC 92,

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State vs. Mohanlal : (2000) 6 SCC 338, CBI vs. Dr Anup Kumar Srivastava : AIR 2017 SC 3698, Inspector of Police vs. Selvi ; AIR 2018 SC 81 and arrived at the conclusion that there are sufficient materials to presume commission of the offence and rejected the application for discharge.

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I have gone through the FIR, copy of the application for discharge

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filed by the petitioner in the learned Court below , Copy of the chargesheet, the impugned order dated 28.09.2021 and statements of the (i) complainant – decoy- Sri Dinesh Kumar Pallo, (ii) the over hearing witness- Sri Bibhu Ranjan Sethi and (III) Sri Sisir Kumar Bhoi DSP Vigilance , who was part of the vigilance team, recorded under Section – 161 Crl.P.C.

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The three witnesses have given a vivid picture of the events which took place on 26.08.2013 which includes preparation for the trap, calls by the petitioner to the complainant while preparation was going on , denial of entry of the overhearing witness inside the room , giving of pre- arranged signal by the complainant, his narration of the events which took place inside the room, bringing out of the tainted notes from the under the mattress by the official witness Sri Sethi and hands of the petitioner turning pink when washed in sodium bicarbonate solution.

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That apart it has been mentioned in the chargesheet that

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“….further the call detail of the mobile of both the complainant and accused has been collected from BSNL authority. Perusal of the same confirmed that accused Behera in his mobile no. 9437579297 had contacted the complainant (Phone No. 9437944417) twice on 26.08.2013, the day of detection at 2:52 P.M. and again at 7.30 P.M. to know the location of the complainant who at that time was proceeding with the Vigilance team in hired vehicle to Malkangiri….”

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The aforesaid materials are sufficient to make out a case of grave suspicion against the petitioner which is enough to frame charge.

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Although it has been submitted by the learned counsel for the petitioner and also mentioned in the charge sheet that the statements of these two witnesses have been recorded under Section – 164 Crl.P.C and they supported the prosecution case. These statements have not been produced or filed by the learned Standing Counsel Vigilance for my perusal. But as it is not

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the case of the petitioner that these witnesses have not supported the

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prosecution case, non production and non perusal of their statements is not of much consequence.

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This Court in the case of Chandan Parija vs. State of Orissa (Criminal Revision No 21 of 2009 ) decided on 16.11.2021 relying on various decisions of the Hon’ble Supreme Court has held as follows:

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“… 8. It is no longer res integra that the Court while considering the question of framing charge under Section 227 Crl.PC is not to act as a mere post office or mouthpiece of the prosecution but has to apply its judicial mind to the materials on record and has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court and any basic infirmities appearing in the case. It the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge . If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Court will be justified in discharging him. But at the same time, at that stage, the Court is not supposed to make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial .

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9 . In view of the aforesaid discussion and after considering the

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submissions of the learned counsels, I find no error in the impugned order and hence it does not call for any interference. The Criminal Revision being bereft of merit is therefore liable to be dismissed.

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10 . It is however made clear that what has been observed in this judgement is only for the purpose of disposal of the present Criminal Revision and any observation made shall not prejudice the rights of the parties during the course of trial and the trial Court should not be influenced / inhibited by the observations made in this judgement and should proceed with the trial independently in accordance with law. It would be open to the petitioner to raise all his contentions during trial, which will be considered in accordance with law by the learned trial court.

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11 . The Criminal Revision is dismissed with the aforesaid observations.

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12 . Urgent certified copy of the order be granted on proper application.
…………………
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
Dated 24 th November 2021 / Puspa

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Laxman Kumar Behera v. State of Odisha(Vig.)

Case brief

What is this about?

What did the court decide?

Laxman Kumar Behera v. State of Odisha(Vig.)

Case brief

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What did the court decide?

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