Binod Kumar Nayak Vs State of Odisha

Articles 226 & 227 of the Constitution of India by the petitioner seeks for a direction to handover/transfer the investigation in Sambalpur Vigilance PS Case No. 31 of 2022 and if necessary for fresh investigation/reinvestigation by any other competent Investigating Agency or in the alternative to handover the case to

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any other reputed officer of Vigilance Department other

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than OP No.3 to fresh investigate or re-investigate the case by taking into account the facts stated in this petition to find out truth of the allegation by issuing appropriate writ of mandamus with exemplary cost and damages against OP No.3.

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2. The facts in concise are that the petitionerBinod Kumar Nayak was working as Block Development Officer, Gudvela Block in the district of Bolangir at the relevant time on 25.09.2022 and on that day, on the allegation of one Gopal Behera by way of an FIR, Sambalpur Vigilance PS Case No. 31 of 2022 was registered against the petitioner for demand of illegal gratification of Rs.1,80,000/- to provide him contract for execution of proposed repair and maintenance work of building of Gudvela Block. Accordingly, a trap was laid on 26.09.2022 by the Vigilance officials along with witnesses and the petitioner was allegedly caught while receiving the illegal gratification and he was arrested and forwarded to the Court for commission of offence U/S. 7 of the Prevention of Corruption(Amendment Act,

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with commencement of investigation in such case which culminated in submission of charge sheet against the petitioner for the said offence to stand his trial in the competent Court.

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2.1. According to the petitioner, the truth is otherwise and he has been illegally framed in the trap case because the complainant after finding his allegation against the petitioner to be improbable, changed/modified the FIR at the behest of OPNo.3, the DSP Vigilance, Bargarh by substituting with another report in active connivance with one Ashok Chandra Dora, the Ex-Chairman of the Gudvela Block and the husband of the then Chairperson of the said Block. It is stated by the petitioner in this case that the said Ashok Chandra Dora had taken a personal friendly loan of Rs.2,00,000/- from him for construction one of his Broiler Firm with approximate cost of Rs.1.5 Crores and, accordingly, the said Ashok Chandra Dora called the petitioner repeatedly in his mobile phone in the morning of the relevant day of trap and requested the

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petitioner to meet him in the house of his brother namely Aswini Dora to receive the said loan amount and, accordingly, the petitioner along with one Sagar Sahoo, Gram Panchayat Extension Officer, Gudvela Block with Government driver namely Subash Tandi reached to the house of Shri Aswini Dora at the relevant time and entered into his official room along with said Sagar Sahoo and they found the said Ashok Chandra Dora alone in that room but, Ashok Chandra Dora directed Sagar Sahoo to go outside of the said room to wait and handed over a packet of Five Hundred currency notes bundle to the petitioner towards repayment of loan of Rs.2,00,000/- which was received by him, however, five minutes thereafter, the Vigilance team headed by OPNo.3 trapped him. It is also alleged by the petitioner that Ashok Chandra Dora had also clicked two to three photographs with the Vigilance team in his mobile which was directed to be deleted by one Susama Pasayat, the Inspector of Vigilance. At the time of trap, OPNo.3 apprised the petitioner to have

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demanded 5% Personal Commission (PC) from the complainant for two upcoming projects namely one repair work of building of Block office with an estimate cost of Rs.15,00,000/- and the other one is for repair of extension of office chamber of Gudvela Block with estimated cost of Rs.15,00,000/- in addition to demand of Rs.30,000/- for the completed project Gavarsa Ghati Concrete Road, but the petitioner intimated OPNo.3 that the said concrete road has already been completed since long and payment thereon has already been disbursed to the Executant-cum-Junior Engineer, Sri Ambrit Meher and, therefore, the complaint against him is without any basis, however, OPNo.3 informed him that they had tried twice earlier to trap him, but only could succeed on this occasion. According to the petitioner, he cooperated with the investigation in Vigilance case, but he was really victimized by the two groups of ruling political parties. It is also stated by the petitioner that on 26.09.2022 in the night, he was brought from his residence at Bolangir to the Bargarh

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Vigilance office by OPNo.3 and on the next morning on 27.09.2022 he(petitioner) talked with DIG, Vigilance and intimated about the entire conspiracy and his prosecution without any basis and accordingly requested the DIG to conduct an impartial enquiry which was assured by the DIG, Vigilance. It is also stated by the petitioner that on 27.09.2022 at about 11 AM the complainant came with about twelve persons and attended the office of OPNo.3 and left at 2.30 PM which would be evident from the CCTV footage of office chamber of OPNo.3. According to the petitioner, after his joining as BDO of Gudvela Block, he stopped the margin of profit for earth and morum work incurring displeasure of Sri Ashok Chandra Dora who asked him to go on transfer for carrying on his illegal business and the petitioner was threatened by said Ashok Chandra Dora for not allowing work to his opponent group and once the said Ashok Chandra Dora forced the petitioner to countersign five projects, to which he denied and, thereby, he was illegally framed in this case. It is,

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however, claimed by the petitioner that since he was discharging duty honestly preventing the illegal activities of the said Ashok Chandra Dora, he invited the anger and wrath of Sri Dora who in connivance with OP No.3 set up the complainant Gopal Behera and foisted a false Vigilance case against him, but he had never demanded any illegal gratification from the complainant. It is further claimed by the petitioner, in terms of Government guidelines project valued less than Rs.2,00,000/- shall not go to the Chairperson for counter signature, but said Ashok Chandra Dora pressurized the petitioner not to route the file for the project less than Rs.2,00,000/- in terms of law and forced him to make payment at his level for which a conspiracy was hatched by said Ashok Chandra Dora with OPNo.3 to initiate a false case against him and, therefore, the entire call records of the petitioner, informant, Ashok Chandra Dora and OPNo.3 would reveal a lot about truth to establish innocence of the petitioner. On the aforesaid averments, the petitioner

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has filed this petition for the relief indicated in the preceding paragraph.

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2.2 In addition, the petitioner has filed IA No.125, 126 and 127 of 2023 to direct OPNo.1 to produce Call Detail Records (CDR) details of Mobile phones of said Ashok Chandra Dora bearing Mobile Nos.9938009962, 9437093280 and that of OPNo.3 bearing Mobile No.9437225073 and 7978301869 for the period from 1^st May, 2022 till 31^st October, 2022 to find out the conversation between the Ashok Chandra

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Dora with Satyaban Mahananda and the frequency of their talk over their mobile phones; to produce CDR details of above mobile phones of Ashok Chandra Dora and that of the informant with Mobile No.6370805995 and if any other mobile number used by the informant for the same period and to produce the CDR details of the phone numbers of the petitioner in his Mobile Nos.9437327576 and 7008767988 and that of said Ashok Chandra Dora for the self-same mobile number for the same period.

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3. In the course of hearing, Mr.Himanshu

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Sekhar Mishra, learned counsel appearing for the petitioner has submitted that the petitioner has been victimized because of his stance not to allow illegal activity of Ex-Chairman Sri Ashok Chandra Dora who being the husband of the then Chairperson of Gudvela Block had time and again pressurized the petitioner to do illegal act, but after joining of the petitioner, he had stopped the corruption/bribe of 5% PC (Percentage) on work as a token of illegal gratification and, thereby, incurred wrath of said Ashok Chandra Dora and his groups who were politically motivated and influenced and also hell-bent upon to do work arbitrarily claiming bills without executing any work. Mr. Mishra has further submitted that since the petitioner was an honest officer, he became a victim to the conspiracy of said Ashok Chandra Dora with OPNo.3, complainant and others which is palpable from the facts that on the date of incident, the petitioner was called by said Ashok Chandra Dora to his office to receive the friendly loan

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which he had extended to him for construction of Broiler Firm and, accordingly, the petitioner was illegally trapped. It is also submitted by Mr. Mishra that one of the allegation against the petitioner for receiving illegal gratification is for the project namely Gavarsa Ghati Concrete Road which was completed much before the alleged illegal trap and there was no occasion for the petitioner to demand any illegal gratification for the said work and in this situation, why the complainant would pay any gratification to the petitioner on a completed work, bill of which having already been drawn and received by him. Mr. Mishra has further submitted that the conspiracy between the said Ashok Chandra Dora and the complainant along with OPNo.3 can be unearthed by calling for the CDR details of the phone numbers of the petitioner and that of Sri Ashok Chandra Dora, OPNo.3-Satyaban Mahananda and informant Gopal Behera for the period 01.05.2022 to 31.10.2022. On the aforesaid submissions and reiterating the averments taken in the IAs, Mr. Mishra,

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learned counsel for the petitioner has prayed to pass order for directing a fresh or reinvestigation in the matter by any impartial Investigating Agency like CBI and also to direct OPNo.1 to produce the CDR details of the phone numbers of aforesaid persons during the period.

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3.1. In reply, Mr. Niranjan Maharana, learned Additional Standing Counsel for the Vigilance has submitted that the accused has no right or authority under the CrPC or any other statute to ask for further or fresh or reinvestigation. Mr. Maharana also submitted by taking this Court through the relevant part of the charge-sheet and FIR that the petitioner in order to get rid of the Vigilance case has come up with the plea of malafide investigation, but fact remains that the petitioner had demanded and accepted illegal gratification from one Gopal Behera, who paid Rs.1,80,000/- as a bribe to the petitioner who accepted it and, thereby, was apprehended by the Vigilance police resulting in Vigilance case and the present plea

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of the petitioner is at best a defence plea. Mr. Maharana has further submitted that the plea of receiving the amount towards repayment loan as advanced by the petitioner to Ashok Chandra Dora is an afterthought one, since the same has not been stated by the petitioner at the relevant time of trap, so also subsequently thereafter while filing bail petition before the Court concerned or in the High Court and, therefore, such plea cannot enure to the benefit of the petitioner and the plea being afterthought, no fresh direction for investigation is required in this case. In summing up his argument, Mr. Maharana has prayed to dismiss the criminal misc. petition.

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4. In embarking upon a discussion in the matter, it appears that the upshot of controversy and prayer of petitioner lies in his claim for fresh investigation or reinvestigation, but the principle under which fresh investigation or reinvestigation can be ordered or whether an accused can claim such relief as

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a right have been restated by the Apex Court in following decisions;

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4.1. In Preeti Singh v. State of U.P.; 2023 SCC Online Allahabad 1410, while answering a question whether the accused person has any right or hearing at the investigation stage or to question the manner in which evidence is being collected by claiming a direction for fair investigation, a Division Bench of Allahabad High Court after surveying a catena of decisions of Apex Court has held thus:-

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“26. Thus, it is very much clear that at the stage of investigation, the accused has no right to be heard or she cannot forward to claim fair investigation only on the ground that according to her the matter was has been wrongly handed over to Crime Branch and simply for the reason that initially the petitioner was informant and subsequently she had been arrayed as accused in the First Information Report in question. From perusal of record of petition we do not find any ground worth withdrawing the investigation from the Crime Branch and to transfer the same to some other agency in view of the law as discussed hereinabove.

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4.2 In Romila Thaper & others v. Union of

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India; (2018) 10 SCC 753, the Apex Court has held

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thus:-

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“30 xx xx xx xxx xxx the accused cannot ask for changing the investigating agency, or to do investigation in a particular manner including for court-monitored investigation.”

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4.3 In Union of India & another vrs. W.N.

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Chadha; 1993 SCC (Cri) 1171, the Apex has held

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thus:-

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“120. Xx xx The respondent who is a named accused in the FIR has no locus standi at this stage to question the manner in which the evidence is to be collected. However, it is open for the respondent to challenge the admissibility and reliability of the evidence only at the stage of trial in case the investigation ends up in filing a final report under Section 173 of the Code indicating that an offence appears to have been committed.”

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4.4. In State through CBI vrs. Hemendhra

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Reddy and another; 2023 SCC Online SC 515, the Apex Court while recording conclusion at paragraph-83

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of the judgment has held thus:-

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“83(v). There is nothing in the CrPC that the Court is obliged to hear the accused while considering an application for further investigation U/S. 173(8) of CrPC.”

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4.5. In C.B.I v. Rajesh Gandhi; (1996) 11

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SCC 253 , the Apex Court has held thus:-

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“8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with xx xx.”

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4.6. In Anant Thanur Karmuse v. State of

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Maharashtra; (2023) 5 SCC 802, the Apex Court in paragraph-34 has quoted with approval the paragraph54 of the decision in Himanshu Kumar & others vrs. State of Chhatisgarh and others; (2023) 12 SCC

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592 wherein it has been held thus:-

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“54. It has been held by this Court in CBI Vrs. Rajesh Gandhi(supra) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.”

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4.7 In Vinubhai Haribhai Malaviya and

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others Vrs. State of Gujarat and another; (2019)

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17 SCC 1, the Apex Court in paragraph-42 has held

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thus:-

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“42.xx xx xx To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pretrial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself , depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such

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discretion on the facts of each case and in accordance with law”.

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5. From an analysis of the precedents as laid

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down by the Apex Court in the decisions referred to above, it can be certainly said that the accused cannot ask as of right for fresh or further investigation or reinvestigation in a particular matter or manner. It is also clear that the accused has no locus standi to question the manner in which evidence is to be collected, but he has right to challenge the admissibility and reliability of the evidence only at the trial in case the investigation resulted in submission of final form indicating that an offence appears to have been committed by the accused. The accused cannot have any say as to who should investigate the offences with which he is charged nor can it be claimed as a matter of right by the accused to conduct the investigation in a particular manner. It is also equally true that there is no provision in the statute granting any right to the accused to ask for re-investigation or further investigation, no matter CrPC provides for further

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investigation U/S.173(8) of the CrPC, but the Magistrate competent to receive report U/S.173(2) of the CrPC and is empowered to take cognizance of offence on such police report may ask for further investigation U/S.173(8) of the CrPC if he is not satisfied with the result of investigation or he thinks it in the interest of justice that some further material which is available, but could not be collected by the Investigating Agency. This is the discretion granted to the Magistrate by the statute.

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6. Viewing the claim of the petitioner for further/re/fresh investigation in the light of averments made in the criminal miscellaneous petition, it appears that the petitioner has averred at paragraph-19 that said Ashok Chandra Dora was unhappy and displeased with the petitioner and asked the petitioner to go on transfer as his illegal business is hampered, but on the other hand, the petitioner takes a contradictory plea that he had advanced a friendly loan of Rs.2,00,000/to Ashok Chandra Dora for construction of one of his

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project of Broiler Firm with approximate cost of Rs.1.5 Crores in paragraph-5 of the petition. If a person is aggrieved and unhappy with the other, how come the said person takes a friendly loan from the later? It is also equally important that the petitioner has averred in the petition that said Ashok Chandra Dora had threatened him. What is significant is that how come a Government official would extend a friendly loan to a person who is not having good relationship with him and constantly threatening him and that too, when the loan was taken has not been stated by the petitioner in his petition. It is also stated by the petitioner in paragraph-20 of the petition that neither he talked with the informant Sri Gopal Behera physically nor over phone at any point of time. In the counter affidavit by the department at paragraph-12, it is claimed that there are telephonic conversation between the petitioner and the complainant which is of course subject to proof. It is, however, averred by the petitioner in paragraph-9 of IA No.125 of 2023 that in

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view of the averments made in the main petition, the petitioner strongly believes that Sri Ashok Chandra Dora, must have contacted Satyaban Mahananda, the OPNo.3 over phone for number of times from 01.05.2022 to 31.10.2022, but in fact, no specific averments have been made in the main petition in this regard. It is also equally important that at the time of filing of the main petition, the petition to call for the CDR details have not been filed, but subsequently it was filed.

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7. It is also equally true that the petitioner seeks for a direction for summoning of CDR of Ashok Chandra Dora and OPNo.3, but how he could know about the conversation between them over phone. At the same time, it also relevant to note that summoning of call details of other person would definitely an intrusion into the privacy of such person which is not permissible, unless there is prima facie material to show that the same has bearing in the matter inasmuch as right to privacy is a right to be protected and it

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cannot be tinkered lightly. So far the claim of the petitioner for trapping him illegally, it can be ascertained from the witnesses to be examined in the trial of the case or from the persons according to the petitioner have accompanied him to such place in the course of defence evidence. What is significant is that the petitioner in his reply to the counter affidavit at paragraph-17 has stated that the petitioner as Block Development Officer has to receive calls from different persons, but his CDR will show that the petitioner had

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never called the complainant Gopal Behera. However, the complainant might have called to the petitioner as a part of conspiracy which itself negate his plea taken in paragraph-20 of the main petition that the petitioner has never talked with the complainant over phone.

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8. On a careful analysis of the aforesaid discussion together with the law laid down by the Apex Court in the decisions referred to above, this Court is of the considered opinion that the claim of the petitioner for fresh or reinvestigation is untenable nor is there any

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necessity for further investigation. On the other hand, the petitioner has been trapped for receiving illegal gratification on the allegation of the informant Gopal Behera and a Vigilance case has been registered against him which ultimately ended in charge-sheet, but at the time of trap the petitioner has never taken the plea as aforesaid in the main petition which is evident from the detection report prepared immediate after the trap. It is, however, true that the petitioner can well establish his plea in the course of trial of the Vigilance case by leading independent evidence or cross-examining the witnesses, but prima facie there is no justification at this stage to order any reinvestigation or fresh investigation in the matter. Further, this Court is not convinced on the analysis of the averments of the petitioner to direct OPNo.1 to produce the CDR details of the concerned phone numbers and, thereby, the IAs filed seeking for a direction to produce the CDRs of the concerned persons merits no consideration and accordingly, rejected.

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Consequently, no ground is made out by the petitioner to persuade this Court to exercise its jurisdiction under Articles 226 and 227 of Constitution of India to interfere in the matter.

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In the result, the writ petition being devoid of merit stands dismissed on contest, but in the circumstance, there is no order as to costs.

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(G. SATAPATHY) JUDGE

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Orissa High Court, Cuttack, Signature Not Verified Dated the 23^rd day of December, 2024/Kishore

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Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 23-Dec-2024 16:56:08

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CRLMP No.526 of 2023

Binod Kumar Nayak v. State of Odisha

Case brief

What is this about?

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Binod Kumar Nayak v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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