Pramod Kumar Swain vs State Of Orissa
2021 Latest Caselaw 12967 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLREV No.1453 of 2010,
                     CRLMC No. 1111 of 2012 &
                      CRLMC No. 1606 of 2021
Application under Section 401 read with Section 397 of the Code of
Criminal Procedure, 1973 and applications under Section 482 of the
Code of Criminal Procedure, 1973.
                              ---------------

CRLREV No.1453 of 2010

Pramod Kumar Swain                              .....   Petitioner

                        -Versus-

State of Orissa                                 .....   Opp. Party
CRLMC No. 1111 of 2012
Ramesh Chandra Satpathy                         .....    Petitioner

                        -Versus-

State of Orissa (Vigilance)                     .....   Opp. Party

CRLMC No. 1606 of 2021
Pramod Kumar Swain                              .....    Petitioner

                        -Versus-

State of Odisha (Vigilance)                     .....   Opp. Party

Advocate(s) appeared in these cases: -
_________________________________________________________

   For Petitioners       :      M/s. R.K. Bose, D. Das and
                                D.K. Mohapatra, Advocates
                                [ in CRLREV No. 1453 of 2010]
                                                          Page 1 of 19
                                   M/s. Minati Mishra, S. Mishra, and
                                  T. Mishra, Advocates
                                  [ in CRLMC No. 1111 of 2012]

                                  M/s. Debasis Das, and
                                  D.K. Mohapatra, Advocates
                                  [ in CRLMC No. 1606 of 2021]

   For Opp. Parties      :        Mr. Sangram Das
                                  Addl. Standing Counsel (Vigilance)
                                  [ in CRLREV No. 1453 of 2010]

                                  Mr. P.K. Pani
                                  [ in CRLMC No. 1111 of 2012]

                          Mr. Niranjan Maharana,
                          Addl. Standing Counsel (Vigilance)
                          [ in CRLMC No. 1606 of 2021]
______________________________________________________

CORAM :
      JUSTICE SASHIKANTA MISHRA

                            ORDER

th 20 December, 2021

SASHIKANTA MISHRA, J.

All these cases have arisen out of Balasore Vigilance P.S.

Case No. 21 of 2002 and involve the same facts and questions of law.

As such, all the three were heard together and are being disposed of by

this common judgment.

FACTS

2. On 09.05.2002, the DSP, Vigilance, Balasore, lodged FIR

before the Superintendent of Police, Vigilance, Balasore alleging that

during physical verification of stock in the godown of Nilgiri Block by

a team of vigilance officers it was found that Sri P.K. Swain, the

Marketing Inspector of Nilgiri Block (petitioner in CRLREV No. 1453

of 2010 and CRLMC No. 1606 of 2021) has misappropriated Q.441.89

Kg of levy sugar and about 70 quintals of PDS rice meant for

distribution to the BPL beneficiaries of Nilgiri Block by black

marketing the same in open market and by manipulating the books of

accounts. The said FIR was registered as Balasore Vigilance P.S. Case

No. 21 of 2002 corresponding to VGR Case No. 21 of 2002 (T.R.No.

27 of 2010) of the Court of learned CJM, Balasore for the alleged

commission of offence under Sections 409/468 of IPC. Upon detailed

investigation, it was found that even though the quantity of sugar and

PDS rice were stated in the books of accounts to have been lifted from

the zonal godown (at Ganeswarpur) yet, because of lack of space in the

godown at Nilgiri, the same had actually not been lifted and as such,

were available as before in the zonal godown. Thus, the allegation of

misappropriation of levy sugar could not be proved and it was held that

the Marketing Officer had no intention of misappropriating the

Government sugar so issued to him for the beneficiaries of Nilgiri

Block. Further, the plea taken by the Marketing Inspector was verified

during investigation and found to be partially true. Therefore, Final

Report True under Section 468/409/511 of IPC was submitted for the

irregularities committed by Marketing Inspector and ACSO, In-charge

of the Zonal Godown. The Departmental Authorities were moved to

take departmental action against them. Be it noted here that at the

relevant time, the ACSO in-charge of the godown at Ganeswarpur was

one Ramesh Chandra Satpathy, who is the petitioner in CRLMC No.

1111 of 2012. Even though final report was submitted as stated above,

learned CJM held that there are sufficient materials to proceed against

the accused persons and prima facie materials being available,

cognizance of the offence was taken. Subsequently, on 07.06.2010,

the petitioner, Pramod Kumar Swain filed an application with prayer to

discharge him from the case. He also filed another petition on

28.06.2010 with the same prayer. Both the petitions were heard by

learned court below on 15.11.2010 and were rejected on the same day.

The said order of rejecting the petition for discharge is impugned in

CRLREV No. 1453 of 2010. The grounds alleged by the petitioner in

CRLREV No. 1453 of 2010 in the court below seeking discharge from

the care are also more or less the grounds on which the petitioner in

CRLMC No. 1111 of 2012 seeks dropping of the proceedings against

him.

In CRLMC No. 1606 of 2021, the petitioner, Pramod

Kumar Swain, seeks to challenge the decision of the learned trial court

to proceed with the case after obtaining necessary information from

this Court vide order dated 09.03.2021 and posting the case for hearing

on the point of charge vide order dated 03.09.2021.

3. Heard Mr. Debasis Das, learned counsel for the petitioners

in CRLREV No. 1453 of 2010 and CRLMC No. 1606 of 2021; Mr. T.

Mishra, learned counsel for the petitioner in CRLMC No. 1111 of

2012; Mr. Sangram Das, learned Addl. Standing for the Vigilance in

CRLREV No. 1453 of 2010, Mr. P.K. Pani, learned Addl. Standing

Counsel for Vigilance in CRLMC No. 1111 of 2012 and Mr. Niranjan

Maharana, learned Addl. Standing Counsel for Vigilance in CRLMC

No.1606 of 2021.

SUBMISIONS

4. Leading the arguments on behalf of both the petitioners,

Mr. Debasis Das has basically raised the following points:

(i) Despite overwhelming evidence that the alleged act was

committed by the petitioners in discharge of their official

duties, no sanction was obtained, for which the

prosecution is rendered invalid in the eye of law.

(ii) Since the final report was submitted by the I.O. on the

ground that the allegation could not be proved, learned

court below mechanically took cognizance of the

offences without directing further investigation

envisaged under Section 156(3) of Cr.P.C. or citing

cogent reasons for not accepting the final report.

(iii) Even otherwise, if the materials on record are examined,

it would reveal complete absence of the essential

ingredients to constitute the offences in question.

5. Adding to the arguments advanced by Mr. Debasis Das,

Mr. T. Mishra, has contended that his client stands on an even better

footing inasmuch as he was never named in the FIR and the only error

allegedly committed by him was that he had not informed the

authorities at the relevant time regarding non-lifting of the stocks from

the godown for which departmental action was recommended. It is

further contended that since misappropriation, which is the basic

allegation, remains unproved no pecuniary loss can be said to have

been caused to the government.

6. Per contra, Mr. Sangram Das learned Addl. Standing

Counsel for Vigilance has contended that no sanction is necessary to

prosecute a public servant for the offence under Section 409/468 IPC

as per the settled position of law. It is further contended that the

learned Court below while refusing to accept the police report was well

within his right to form his own opinion as the materials available

prima facie suggest commission of the alleged offences.

7. Mr. P.K.Pani, Addl. Standing Counsel for Vigilance

submits that the allegation against the petitioner Ramesh Chandra

Satpathy is not of misappropriation as such, but attempt to commit the

said offence since he was caught during such attempt.

FINDINGS

8. On the question of sanction, it is contended by Mr. Das that the

alleged acts being done by the accused persons in due discharge of

their official duties, prior sanction of the competent authority is

necessary to prosecute them as per Section 197 of the Cr.P.C.. Relying

upon the decision of the Apex Court in the case of Anjani Kumar Vs.

State of Bihar, reported in AIR 2008 SC 1992, it is argued that once it

is established that the act or omission was done by the public servant

while discharging his official duty, then the scope of the official duty

should be construed in favour of the public servant. Further relying

upon the decision of the Apex Court in the caser of Parkash Singh

Badal Vrs State of Punjab, reported in (2007) 1 SCC 1, it is argued

that offences alleged to have been committed under the Indian Penal

Code had close nexus with the workmen who are on official duty and

therefore, sanction under Section 197 of the Code is mandatory.

However, learned Court below, without examining the scope and

nature of the duties discharged by the accused persons vis-à-vis the acts

allegedly committed by them arrived at the abrupt conclusion that they

are not part of their official duties and therefore, held that sanction is

not necessary.

9. Opposing such arguments, Mr. Sangram Das, Mr. P. K.

Pani and Mr. Niranjan Maharana, Additional Standing Counsel for the

Vigilance have basically contended that the allegations being

falsification of official records and misappropriation of Sugar and PDS

rice meant for beneficiaries, can, by no stretch of imagination be

treated as part of the official duties and hence, learned Court below

committed no error in holding that prior sanction is not necessary in the

case.

10. In order to appreciate the rival contentions, it would be

proper to first of all refer to the duties being discharged or required to

be discharged by the accused persons at the relevant time. As stated in

the FIR, Shri Pramod Kumar Swain was working as the Marketing

Inspector, whose duty was to lift the stocks from the zonal godown to

the Departmental godown at Nilgiri for distribution to the beneficiaries

of Nilgiri Block. As such, he used to lift different quantities of levy

sugar and PDS rice every month which was distributed to the

beneficiaries. On verification of the lifting orders so issued, it was

found that Q 440.89 of levy sugar and 70 quintals of PDS rice was

lifted by Sri Swain in March, 2020 but the same was not physically

available at Nilgiri godown and hence, was believed to have been

misappropriated. Shri Ramesh Chandra Satpathy, on the other hand,

was working as the Assistant Civil Supplies Officer (ACSO)-cum- In-

charge of Ganeswarpur Godown who is said to have issued the

aforementioned quantity of Sugar and Rice to Sri Swain from the Zonal

godown by reflecting the same in the issue register.

Now coming to the allegations, it was originally alleged that the

Marketing Inspector made necessary entries in the stock register

showing receipt of the said Sugar and Rice but the same were

physically not available in the godown at Nilgiri. Subsequently, he

clarified that he had not actually lifted the stocks because of lack of

adequate space in the godown. In so far as the ACSO is concerned, it is

alleged that he connived with the Marketing Inspector to make false

entries in the relevant registers to facilitate the misappropriation.

Entering the quantity of stock that are lifted in the stock registers etc.

is, undoubtedly a part of the official duty and it is also the case of the

prosecution that the same was done in due discharge of such duties. In

so far as the allegation that the stocks were lifted but instead of being

taken to the Godown at Nilgiri for distribution they were

misappropriated, it is to be noted that the act of lifting, per se, is also a

part of the official duty of accused Pramod Kumar Swain. In such fact

situation the question is, whether prior sanction is necessary to

prosecute these officials as per Section 197 of Cr.P.C.

11. A bare reading of the relevant portion of Section 197 of

Cr.P.C. quoted herein below, would make the position amply clear:

"197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

xx xx xx"

12. Thus, section 197 mandates that no prosecution can be

launched or continued without sanction of the competent authority.

Admittedly, in the present case, no such sanction was accorded by the

competent authority. Law is well settled that if the Court takes

cognizance without prior sanction of the competent authority, such

order taking cognizance becomes liable for interference. In a similar

case, that is, Nanda Kishore Prasad Sinha and others vs. Republic of

India, reported in (2005) 31 OCR 358, this Court held as under:

"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 PC 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."

In the instant case, the offences alleged are under Section 468/409/511

IPC and therefore, the provision under Section 197 CrPC shall be

applicable which in effect, is the same as Section 19 of the PC Act. In

another case, that is the case of Dr.Manmath Kumar Behera vs. State

of Orissa, reported in (2002) 22 OCR 560, wherein despite submission

of Final Report the trial Court had taken cognizance of the offences

under the IPC but not under the PC Act, this Court held as under:

"So far as the offences under the Penal Code are concerned, Section 197 of the CrPC prescribes that only when the act complained of is in relation to discharge of official duty, sanction will be necessary. Learned Magistrate without directing the Vigilance Department to obtain sanction has refused to take cognizance under the provisions of the Prevention of Corruption Act but took cognizance in respect of the offence under the Penal Code without insisting for sanction. In my view, the learned Magistrate instead of taking cognizance should have asked the department to obtain sanction for prosecution."

13. Whether an act falls within the purview of 'Official Duty'

or not has also been examined by the Apex Court in several decisions

including the cases referred to by Shri Das. One may profitably refer to

the decision in the case of ShreekantaiahRamayyaMunipalli vs. State

of Bombay reported in AIR 1955 SC 287, wherein it was observed as

under:

"18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. xxxxxxx"

19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. Now it is evident that the entrustment and/or dominion here was in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity."

Relying upon these observations as also other cases, the Apex Court in

the case of N.K. Ganguly vs. CBI reported in (2016) 2 SCC 143 have

held that for purpose of obtaining previous sanction from appropriate

government under Section 197 Cr.P.C. it is imperative that the alleged

offence is committed in discharge of official duty by the accused and

that it is also imperative for the Court to examine the allegations

against the accused, to decide whether previous sanction is required to

be obtained before taking cognizance of the alleged offence against

him.

As has already been referred herein above, the admitted

facts relate entirely to acts done or not done by the accused persons in

due discharge of their official duties. It is stated at the cost of repetition

that in so far as accused Pramod Kumar Swain is concerned, it was

very much part of his official duty to lift the stocks after making

necessary entries in the books of accounts and so also in case of

accused Ramesh Chandra Satpathy whose duty was to record the fact

of lifting of the stocks in the books of accounts. The basic element of

the alleged offence here is the lifting of stocks, which as per the FIR,

the accused lifted but utilized for his own benefit by selling it in black-

market. So, if the argument of learned counsel for Vigilance is

accepted, it would imply that while lifting of stocks was an official act

misappropriation thereof was not and hence, sanction would not be

necessary. This would entail segregating the act into two parts that is,

the lifting part and the misappropriating part, which would be

fallacious. Further, this would be entirely contrary to the requirement

of Section 197 CrPC which speaks of acts being done in discharge of

official duty. The same reasoning would apply for the alleged

commission of the offence under Section 468 IPC because making

entries in the relevant books is undoubtedly, an act done in discharge of

official duty. Therefore, on the admitted facts and circumstances of the

case, it is evident that the allegations are intrinsically related to the

official duties of the accused persons and hence, prior sanction is a

must to prosecute them.

14. A reading of the impugned order reveals that the learned

Special Judge has merely referred to certain case laws [AIR 1968 SC

117 and (2008) 39 OCR(SC) 716] and thereafter, mechanically held

that the allegation against the accused is of criminal misconduct which

cannot be said to be part of his duty discharged as a public servant

without taking pains to examine the exact facts and circumstances of

the case.

15. The question is, in such a scenario what recourse is

available to the Court. Would it be reasonable to direct the Court below

to ask the prosecution to obtain sanction for the prosecution at this

distance of time? It must be kept in mind that the Final Report was

submitted as far back as on 30.08.2003 that is, more than 18 years

back. Cognizance was taken after 7 years that is, on 04.05.2010

without any justified reason. Of course, subsequent delay that has

occasioned is to be attributed to the accused persons themselves as they

had approached this Court in the present CRLREV and CRLMC filed

in 2010 and 2012 respectively and as the lower court records had been

sent to this Court. Even then, the delay of 7 years in taking cognizance

by itself is unconscionable as it strikes at the fundamental concept of

Right to speedy trial, which is now recognized as a Constitutional

requirement. The accused persons have both retired from Government

service since long and are of advanced ages. The most important thing

is that the investigation in respect of the alleged offence had ended in

the finding of no evidence against them. That apart there is no

pecuniary loss whatsoever to the Government. So, taking all the above

aspects into consideration, this Court is of the view that directing the

court below to ask the prosecution to obtain sanction against the

accused persons at this belated stage would be entirely unjustified.

16. As regards the next ground urged by learned counsel for

the petitioners, it is seen that the FIR was registered for the offences

under Section 409/468 IPC against accused Pramod Kumar Swain and

Final Report True was submitted in respect of offences under Sections

468/409/511 IPC against both the accused persons. Learned Court

below, while not accepting such Final Report, mentions to have

"perused the record, statement of witnesses, seizure list and the FIR" to

hold that there is sufficient material to proceed against the accused

persons and prima facie material being supposedly available, took

cognizance of the offences, but without specifying the said offences.

Since, the Court was disagreeing with the FRT, it was incumbent for it

to specify the exact offences of which it was taking cognizance.

Though at the stage of taking cognizance, it is not expected of the court

to make a roving enquiry but in view of the fact that FRT had been

submitted, which the Court did not deem proper to accept, it was

necessary for the court to at least record the reasons for such

disagreement.

17. As regards the next ground urged by the petitioners

regarding absence of the necessary ingredients of the alleged offences,

this Court finds that the allegations as they stand at present are that

accused Pramod Kumar Swain being the Marketing Inspector and

having dominion over certain quantities of Levy Sugar and PDS Rice

lifted the same but instead of having it distributed to the PDS

beneficiaries, misappropriated the same for his personal gain, which is

an offence under Section 409 of IPC. So, prima facie, entrustment of

the stock in question appears to be proved, but only on paper as

materials on record clearly show that he had never physically lifted the

stocks and the same were lying as before in the government godown.

So, the question of actual entrustment itself does not arise. Similarly, it

is alleged that he falsified the records to show as if he had lifted the

stock even though he had not which amounts to the offence under

Section 468 of IPC. Now, when the Investigating Agency itself accepts

the explanation submitted by the accused for non-lifting of the stocks

to the effect that there was lack of adequate space in the concerned

godown, how can the same amount to falsification of records? Had the

main allegation been proved, the matter would have been different but

not otherwise as has been held above. As regards the offence under

Section 511 IPC, there is not a shred of evidence to suggest that the

accused persons were in any manner preparing to commit the offences

as their explanation being plausible, was accepted. Moreover, the same

being found to be treated as mere irregularity, departmental action

alone was suggested to be taken against them.

Therefore, even on the uncontroverted materials submitted

by the prosecution, the essential ingredients of the alleged offences are

not made out.

18. From a conspectus of the analysis made in the preceding

paragraphs, this Court is of the view that the continuance of the

criminal proceedings against the petitioners and that too at this distance

of time would be entirely unjustified and hence, shall amount to abuse

of the process of court. Therefore, this is a fit case for exercise of

inherent powers of the Court under Section 482 Cr.P.C. to quash the

criminal proceedings.

19. In the result, criminal proceedings in VGR Case No.21 of

2002 (T.R. No. 27 of 2010) corresponding to Balasore Vigilance P.S.

Case No. 21 of 2002 of the court of learned Chief Judicial Magistrate,

Balasore are hereby quashed. In view of the aforesaid order, no specific

order is required to be passed in CRLREV No. 1453 of 2010 and

CRLMC No.1616 of 2021, which are therefore, disposed of

accordingly.

...........................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 20th December, 2021/ A.K. Rana.