Allowed

Nandakishore Pal v. State Vigilance

Orissa HC27 Feb 2024CRLREV/795/2014

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision challenging an order directing the framing of charges under the IPC for misappropriation of subsidy funds. The Court held that while the offences lacked a nexus with official duties, the 31-year delay in framing charges thinned the right to a speedy trial, rendering the proceedings groundless. The petitioner was discharged.

What did the court decide?

Petitioner discharged from the offences under IPC.

Nandakishore Pal Vs State Vigilance — Corruption | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.795 of 2014

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(An application U/S. 401 read with Section 397 of the Code of Criminal Procedure, 1973 against the order dated 18.08.2014 passed by learned Special Judge, Vigilance, Cuttack in T.R. Case No.213/2007 corresponding to VGR Case No. 05/1993, arising out of Cuttack Vigilance PS No. 05/1993)

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Nandakishore Pal … Petitioner
-versus-
State of Orissa(Vigilance) … Opposite Party
For Petitioner : Mr.R. Roy, Advocate
For Opposite Party : Mr. S. Das, Standing
Counsel (Vigilance)
CORAM:
HON’BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :28.11.2024
DATE OF JUDGMENT:27.02.2024

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G. Satapathy, J.

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1. This criminal revision U/S. 401 read with Section

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397 of the Code of Criminal Procedure, 1973 (In short the ‘Cr.P.C.’) assails the order passed on 18.08.2014 by

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learned Special Judge, Vigilance, Cuttack in TR Case No. 213 of 2007 refusing to discharge the Petitioner for commission of the offences under IPC while discharging him for commission of offence under Prevention of Corruption Act, 1988 (in short, “PC Act”) in an application U/S. 239 of Cr.P.C.

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2. Facts in nutshell are, on receipt of reliable information of misappropriation of Government subsidy money of Rs. 1,50,000/-, an enquiry was taken up by the Vigilance Unit of Cuttack and accordingly, it was found that during 1990-91, 150 shallow point tubewells(SPTW) were sanctioned by the Government for Raghunathpur Block and accordingly, an amount of Rs. 2,49,000/- was granted and placed under the disposal of

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BDO, Raghunathpur for execution of the work under the scheme, but the Petitioner who was a JE then and other officials including the BDO in connivance with the beneficiaries misappropriated the subsidy money of Rs. 1,47,000/- sanctioned against 49 beneficiaries and thereby, committed criminal misconduct by producing

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fake cash memos regarding purchase of materials for sinking of SPTWs and furnishing false completion certificates of installation.

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On this incident, an FIR was lodged against the Petitioner and others which was registered vide Cuttack Vigilance PS Case No.05 of 1993 and the matter was investigated into. On completion of investigation, charge-sheet was filed against the Petitioner and 55 others for commission of offences punishable U/Ss. 13(2) r/w Sec. 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (in short the ‘Act’) and U/Ss. 409/420/468/471/477(A)/34 of IPC under which cognizance was taken, but subsequently the Petitioner preferred an application before the Special Judge, Vigilance, Cuttack seeking discharge in this case for commission of the offences under PC Act and IPC for want of sanction. However, the learned Special Judge, Vigilance, by the impugned order dated 18.08.2014 discharged the Petitioner for commission of offences under the PC Act for want of sanction U/S. 19 of the PC

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Act, but directed to frame charge against him for commission of offences punishable U/Ss. 409/420/ 468/ 471/477(A)/34 of IPC on the ground that Sec. 197 of the Cr.P.C. does not provide protection to the Petitioner since commission of offences by the Petitioner has no nexus in due discharge of his duties. Hence, this criminal revision by the Petitioner.

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3. Mr. R. Roy, learned counsel for the Petitioner

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has confined his submission only in respect of discharge of the Petitioner for offences U/Ss. 409/420/468/471/ 477(A)/34 IPC for want of sanction as contemplated U/S. 197 of the Cr.P.C. and for delay in disposal of the case which seriously affects the right of the Petitioner to speedy trial. Mr. Roy has accordingly, relied upon the decisions in A. Srinivasulu Vrs. State represented by

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Inspector of Police; (2020) live law SC 485 and Vakil Prasad Singh Vrs. State of Bihar;(2009) 3

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SCC 355 .

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4. On the other hand, Mr. S. Das, learned Standing Counsel for Vigilance by supporting the impugned order

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has submitted that although Sec. 19 of the PC Act provides protection to the Petitioner from proceeding further against him in respect of offences committed under the PC Act, but there is no such protection U/S. 197 of the Cr.P.C. to proceed against the Petitioner for commission of offences under IPC since by no stretch of imagination, commission of offences by a public servant can be construed to have any nexus in due discharge of his duties. Accordingly, Mr. Das has prayed to dismiss the criminal revision.

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5. On a careful scrutiny of the impugned order keeping in view the materials on record vis-à-vis the rival submissions, primarily it appears to the Court that no sanction order has been obtained from the Competent Authority to prosecute the Petitioner in this case and that is why the learned Special Judge by the impugned order has discharged the Petitioner from the offence U/S. 13 of the PC Act, but he, however, being of the opinion that no sanction is necessary for misconduct

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of the Petitioner in respect of commission of offences

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under different Sections of IPC directed for framing of charge against the Petitioner for commission of offences U/Ss. 409/420/468 /471/477(A)/34 of IPC. It is undisputed that the protection of public servant from prosecution for commission of offences under general law is distinct and different from the protection provided

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in Sec. 19 of the PC Act, no matter the object behind both the enactments is for protection of public servant from false and frivolous prosecution, but the previous sanction as contemplated U/S. 19 of the PC Act is invariably intended to protect the public servant from prosecution of the offences under the PC Act by the very issue of the status of the accused to be a public servant. In simple word, if the offences for which the public servant is likely to be prosecuted is for commission of the offences punishable U/Ss. 7,11,13 and 15 of the PC Act as stood prior to Amendment Act of 2018, no Court shall take cognizance of offences without previous sanction of competent authority, but the protection as provided Under Section 197 of the Cr.P.C. is meant to

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protect the public servant accused of any offences alleged to have been committed by him while acting or purporting to act in discharge of his official duty. It is, therefore, very clear that a public servant is protected from prosecution under the aforesaid offences under the PC Act without previous sanction from the Competent Authority merely on his very status as a public servant, but in later case of the protection as provided U/S.197 of the Cr.P.C., the public servant is protected till sanction is accorded against him from Competent Authority when his act is in discharge of his official duty. True it is that to commit an offence punishable under law can never be a part of official duty of a public servant, but if such public duty has reasonable nexus with the act complained of against the public servant in excess of his official duty can also be given protection under the umbrage of official duty. To make it more lucid, it would be appropriate to give an illustration; if a police officer in discharge of his official duty to execute a warrant against an offender has committed some excesses in

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official duty by entering into the premises of the house of the offender without having any search warrant, even though the act complained of against such police officer is in excess of his duty, but his such act having reasonable connection with due discharge of his official duty is protected U/S. 197 of the Cr.P.C.

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6. In order to clearly understand the issue, this Court considers it profitable to refer to the following decisions. In Kalicharan Mahapatra Vrs. State of Orissa; (1998) 6 SCC 411, wherein the Apex Court has held as under:-

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"...The sanction contemplated in Section 197 of the Code concerns a public servant who is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’, whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code..."

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6.1 In Lalu Prasad alias Lalu Prasad Yadav Vrs.

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State of Bihar; (2007) 1 SCC 4 , it has been held by the Apex Court which reads as under:-

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“10. It may be noted that Section 197 of the CrPC and Section 19 of the PC Act, 1988 operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the CrPC, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Position is not so in case of Section 19 of the Act."

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7. Moreover, “the test” for sanction U/S. 197 of the Cr.P.C. has been laid down by the Apex Court in another decision in A. Sreenivasa Reddy Vrs. Rakesh

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Sharma and another; (2023) 8 SCC 711 , wherein it has been held that:-

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“61. Xx xx.The test in the latter case(Sec.197 Cr.P.C) is of the "nexus" between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to

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reject the necessity of sanction under Section 197 of the Cr.P.C. on such reasoning. The "safe and sure test", is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection" between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts.”

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8. Whether the sanction U/S. 197 Cr.P.C. is required or not for the act or omission of the accused, has been laid down in Paragraph-10 in Indradevi Vrs. State of Rajstan and another; (2021) 8 SCC 768 ,

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wherein the Apex Court has held as under:-

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“10. xx xx. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the

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yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao; (1993) 3 SCC 339]. The real question, therefore, is whether the act committed is directly concerned with the official duty.”

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9. In Sambhoo Nath Misra Vrs. State of UP;

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(1997) 5 SCC 326, while answering the question as to whether a public servant allegedly found to have committed the offence of fabrication of records or misappropriation of public funds can be said to have acted in discharge of his official duties, the Apex Court has held as under:-

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“5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public funds etc, can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public funds etc. It does not mean that it is integrally connected or inseparably interlinked with

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the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained. “

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10. What constitute an official duty has been

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explained in State of Orissa Vrs. Ganesh Chandra

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Jew; (2004) 8 SCC 40 , wherein it has been held by the

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Apex Court as under:-

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“10. Xx xx. Use of expression “official duty” implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. This Section (197 of the Cr.P.C.) does not extend its protective cover to every act or omission done by the public servant in service, but restrict its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.”

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11. A careful perusal of the provisions of Sec. 197 of Cr.P.C. keeping in view the mandate of law as laid

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down by the Apex Court in the decisions referred to above, it clearly appears that the protection as provided

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U/S. 197 of the Cr.P.C. does not extend to cover every act or omission of public servant while in service, rather the act or omission which are done by public servant in due discharge of official duties are protected under it .and no Court shall take cognizance of offence under general law without obtaining prior sanction as contemplated U/S. 197 of the Cr.P.C., if the act or omission done by a public servant has reasonable connection and nexus with due discharge of his official duties, even he is protected, if the act or omission is in excess of public duty, but there must be some reasonable nexus between the act complained of and the official duty. It is, however, clarified that if the act complained of has no nexus or connection with the official duty of the public servant, Section 197 of Cr.P.C. will not protect such acts of the public servant. It is also abundantly clarified here that committing an offence without having any nexus with official duty, by no stretch of imagination can be construed as public duty.

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12. The factual position in this case is somehow peculiar which is not only for want of sanction against the Petitioner, but it appears from the prosecution papers and records that pursuant to an enquiry, it was unearthed that during 1990-91, the Government had introduced implementation of centrally sponsored scheme for assistance to small and marginal farmers for increasing agricultural production and accordingly, 150 shallow point tube well (SPTW) were sanctioned by the Government for Raghunathpur Block with provision for an amount of Rs. 2,49,000/- which was placed under disposal of the BDO, Raghunathpur for execution of the scheme and accordingly, the BDO, Raghunathpur entrusted the Petitioner JE and some other officials to execute the work order. Accordingly, 83 beneficiaries were selected for installation of SPTW with cent percent subsidy @ Rs. 3,000/- per installation of one SPTW, but in the enquiry; out of 83 SPTWs, only 33 were found installed with violation of instructions and the rest 49 SPTWs were found to have not installed against the

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beneficiaries so selected causing loss of Rs. 1,47,000/to the Government by way of misappropriation done by the accused persons. Accordingly, FIR was lodged and Vigilance PS Case No. 5 of 1993 was registered on 02.02.1993 against 8 Government officials, but on investigation, charge-sheet was submitted against 56 accused persons, out of whom 25 were arrested and released on bail, but 31 evaded arrest. The BDO was, however, not charge-sheeted since evidence was found deficient against him. In the course of investigation, accordingly, it was found that 7 Government Officials and 49 beneficiaries in collusion had misappropriated a sum of Rs. 1,47,000/- by falsifying records and producing fake vouchers showing purchase of materials for SPTWs and furnishing false completion certificate of installation of 49 numbers of SPTWs in Jagannthpur & Adheikula GP of Raghunathpur Block.

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13. It is also found from the report vide No. 111 dated 04.04.2023 of the learned Special Judge, Vigilance, Cuttack that FIR was registered on

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02.02.1993, but charge sheet was submitted against 56 accused persons on 24.07.1997 and cognizance of offence was taken on 30.06.2001 by the learned Special Judge, Vigilance, Bhubaneswar, but the case record was received by the learned Special Judge, Cuttack on transfer on 02.02.2007. According to the report received by this Court vide No. 152 dated 09.05.2023 of the learned Special Judge, Vigilance, Cuttack , it appears that only 39 out of 56 charge-sheeted accused persons had appeared, but subsequently 17 accused persons were reported to be dead and case against them stood abated on different dates and later on, the case record was transferred to the Court of Additional Special Judge Vigilance, Cuttack on 06.01.2019, but in view of the direction of this Court, the case record was again transferred to the original Court which was received on 02.08.2022, but NBWs issued against 7 accused persons were still to be executed and thereby, charge for the offence could not be framed against the accused person

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till 09.05.2023.

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14. A perusal of charge sheet would also reveal that it is not a case where the authority has not been approached for according sanction against the Petitioner, but neither sanction order was received by the investigating officer nor was sanction refused against Petitioner, despite the authority had been moved for according sanction against the Petitioner. It is strange,

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but of course true that charge is yet to be framed against the Petitioner or any of the accused persons, even after more than 31 years of the commission of offences and that too, is not for the latches or negligence of the petitioner. Further, the perusal of the charge sheet also makes it ample clear that sanction has been accorded by competent authority against the accused Biswanth Jena (CEO), Bhaskar Mohanty, Additional CEO, Pravat Kumar Panda (JE), Pitabas Mishra (JE), Radheshyam Dash (VLW) and Jadunath Jena (VLW). It is also not in dispute that the Petitioner has also approached this Court in CRLMC No. 1180 of 2021 in an application U/S. 482 Cr.P.C. for seeking a direction

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to split up the trial against the present Petitioner and conclude it within four months and accordingly, this Court by an order passed on 12.05.2023 disposed of the aforesaid CRLMC, granting liberty to petitioner on his own motion to raise all those points before this Court in the aforesaid criminal revision. It is true that the Petitioner has preferred this revision seeking his discharge from the offences under which he is directed to be prosecuted by the impugned order. In the context of right to speedy trial, the Petitioner has also relied upon the decision in Vakil Prasad Singh (Supra) , wherein it has been held that:-

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“25. Where the Court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the Court feels that having regard to the nature of offence and other relevant circumstances, quashing of the proceedings may not be in the interest of justice. In such a situation, it is open to the Court to make an appropriate order as it may deem just and equitable including fixation of time-frame for conclusion of trial.”

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15. In the context, this Court by way of an order passed on 01.03.2023 has directed the Vigilance Department to submit specific instruction with regard to the role played by the Petitioner and the supporting documents in support of such accusations and pursuant to such order, the DSP Vigilance has produced the specific written instruction through learned ASC Vigilance, wherein it has been indicated that the Petitioner along with 4 Government Officials were entrusted for execution of the installation of 28 SPTWs in Jagannathpur GP under Raghunathpur Block, but the same were found missing during site inspection by technical team and investigation, but subsidy amount of Rs. 84,000/- had been paid to 28 beneficiaries and the certificates for 28 SPTWs being found unavailable on record, it was reported to be difficult to bifurcate the misappropriation amount in between two JEs. In the context of right to speedy trial, this Court reminds that the criminal trial is voyage of discovery in which the truth is the quest, but it is the duty of the presiding

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Judge to explore every possibility to discover the truth to advance the cause of justice by providing speedy trial to the person accused of offence, which is of course the fundamental right of the accused as guaranteed under article 21 of the Constitution of India. It is, however, true that, if the system is unable to provide right to speedy trial and more particularly in this case, when the trial has not begun even after 31 years of the alleged incident by framing charge, it can be reasonably said that there is no grounds for presuming the Petitioner to have committed the offence as required U/S. 239 of the Cr.P.C. to frame charge against him. In this case, it is also not in dispute that the Petitioner was discharged of the offences under PC Act for want of sanction, but since the Petitioner was allegedly being charge sheeted for commission of offence of misappropriation and cheating, it was accordingly found by the learned trial Judge that the offence committed by the Petitioner cannot be considered in due discharge of his duty and there is no reasonable nexus between discharge of duty and

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commission of offence and thereby, the learned trial Judge has directed to proceed against the Petitioner for commission of offence under IPC. It is, however, considered that the offence alleged against the Petitioner has no reasonable nexus with due discharge of his official duty, but taking into consideration the authority having not reverted back to the motion of the Investigating Officer for according sanction against the petitioner and charge having yet to be framed, even after 31 years of the alleged occurrence thwarting the right to speedy trial of the Petitioner as guaranteed under Constitution. This Court in the peculiar facts and circumstance of the case is constrained to consider that the charge sought to be brought against the Petitioner appears to be groundless, especially when the trial would commence is eventually a guess and how much time it would require to complete the trial is uncertain. In the peculiar facts and situation of the case, this Court considers it fit to discharge the Petitioner for commission

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of the offences under IPC and, accordingly, quashes the impugned order.

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16. In the result, the criminal revision stands allowed on contest, but there is no order as to costs. As a necessary corollary, the impugned order stands set aside and the Petitioner is discharged of the offences

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under IPC.

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(G. Satapathy)
Judge

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Signature Not Verified

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Orissa High Court, Cuttack, Dated the 27^th day of February, 2024/Priyajit

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Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORI SSA Date: 28-Feb-2024 16:51:42

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