Orissa High Court

Pratap Chandra Mahanta And vs State Of Orissa (Vigilance) on 22 April, 2022

  IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLREV No.135 of 2018

(In the matter of a Revision under Section 401 read with Section
397 of Cr.P.C.)

 Pratap Chandra Mahanta and                 ....             Petitioners
 another

                               -versus-

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

Appeared in this case:-
      For Petitioners              :      Mr. S.R.Mohapatra,
                                          Mr. A.K. Apat,
                                          Mr. B.R. Mohanty,
                                          Mr. M.K. Swain,
                                          Mr. S. Harichandan,
                                          Mr. L. Pattanaik and
                                          Mr. S. Mohanty

       For Opposite Party          :      Mr. Sangram Das,
                                          Standing Counsel Vigilance
                                          Department

 CORAM:
 JUSTICE A.K. MOHAPATRA
                          JUDGMENT

Date of Hearing : 16.02.2022 | Date of Delivery : 22.04.2022

A.K. Mohapatra, J.

1. The present Criminal Revision has been filed by the

Petitioners assailing the order dated 07.12.2017 passed in VGR

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Case No.11 of 2014 by the learned Special Judge (Vigilance),

Keonjhar thereby rejecting the Petitioners' discharge petition and

framing charge against the Petitioners for alleged commission of

crime under Section 13(2) read with Section 13(1)(c)(d) of

Prevention of Corruption Act, 1988 and Section 409 of I.P.C.

2. The case of the prosecution as called out from the Revision

Petition in a nutshell is that on the allegation of huge

misappropriate of BPL/AAY rice cost from the quota of

Chamakpur Gram Panchayat under Joda Block of Keonjhar district

by lifting the quota in the name of dead/migrant beneficiaries and

showing the same to have distributed over the period from

September-2008 to March-2014. On the aforesaid allegation, the

Inspector of Vigilance Keonjhar Unit (Informant) conducted an

enquiry and on verification, it was found that as many as 1081 cards

under BPL category and 190 cards under AAY category were

allotted to Chamakpur Gram Panchayat out of which 19 BPL/AAY

beneficiaries died and 21 BPL beneficiaries migrated from

Chamakpur G.P. leaving behind nobody from the family to receive

the BPL/AAY rice though against their card numbers BPL/AAY

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rice is being lifted by the Gram Panchayat Secretary-cum-VLW-

cum-PEO, Chamakpur G.P.

3. It is also alleged that the Petitioner No.1 during his

incumbency as VLW-cum-PEO Chamakpur G.P. 14.12.1998 to

19.07.2012 had lifted total of 16,860.35 quintal of rice under the

head of BPL/AAY beneficiaries. Out of the total rice lifted, a

quantity of 212.95 quintal has been shown to be distributed

amongst 21 dead/migrated BPL/AAY beneficiaries, which is false

and fraudulent. As a result of which, it is alleged that there was a

misappropriation of government money to the tune of

Rs.3,73,566/-, i.e. the differential cost of purchase/economic cost

and subsidized cost of the rice and it is further alleged that during

incumbency of Petitioner No.2 as VLW-cum-PEO of the said G.P.

for the period from 08/2012 to 03/2014, a total quantity of 6722.76

quintal of rice were lifted and distributed under the heading

BPL/AAY beneficiaries. Out of the said quantity of rice, 106.50

quintal of rice was shown to be distributed in the name of aforesaid

21 dead/migrated beneficiaries and the differential cost of purchase

/economic cost and subsidized cost comes to the tune of

Rs.2,26,435/-. It has also been alleged that since no surviving legal

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heirs were found against the aforesaid 21 cards, their names have

been deleted from the list of BPL/AAY beneficiaries from the

month of April-2014 by the C.S.O., Keonjhar

4. Heard Mr.Smruti Ranjan Mohapatra, learned counsel for the

Petitioners and Mr.Sangram Das, learned Standing Counsel for

Vigilance Department. Perused the case records.

5. Mr. Mohapatra, learned counsel for the Petitioners submits

that the Petitioners are no way connected with the alleged crime and

they have been falsely implicated by the Informant only to harass

them.

6. Mr. Das, learned Standing Counsel for the Vigilance

Department submits that after registration of F.I.R., the

investigation of the case has been completed by the Investigating

Agency and the charge-sheet has been submitted against the

Petitioners under Section 13(2) read with Section 13(1)(c)(d) of the

Prevention of Corruption Act, 1988 and Section 409 of I.P.C., as

such, a prima facie case is made out against the Petitioners on the

basis of materials available on record. He further submits that the

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Special Judge, Vigilance Department on being satisfied with the

materials had taken cognizance of the alleged offences.

7. It is further apt to mention here that at the time of framing

of charge, the present Petitioners filed an application under Section

227 of Cr.P.C. read with Section 239 Cr.P.C. to discharge the

Petitioners from the alleged criminal liability. However, learned

trial court after hearing the parties, vide its order dated 07.12.2017

has rejected the aforesaid application of the Petitioners. Such order

dated 07.12.2017 has been assailed in the present Revision Petition.

8. Learned Special Judge, Vigilance, Keonjhar after rejecting

the application of the Petitioners under Section 227 Cr.P.C. read

with Section 239 Cr.P.C. filed by the Petitioners went ahead to

frame charge against the Petitioners. Accordingly, the following

charges were framed against the Petitioners:

Charges framed against Pratap Chandra Mahanta (Petitioner No.1) :

First- That, you being a public servant, while working as Ex VLW cum PEO Chamakpur G.P. being the in charge of the FPS Chamakpur for PDS distribution lifted and shown migrated persons between the period from 20275 quintal of rice amounting to Rs.3,40,044/-

in the name of dead and migrated persons between the period from 09/2008 to 07/2012, dishonestly

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misappropriated or otherwise converted for your own use which had been entrusted to you for distribution of TPDS (Targeted Public Distribution System) and thereby committed offence of misconduct u/s.13(1)© of the Prevention of Corruption Act, 1988 punishable u/s.13(2) of the said Act and within my cognizance. Secondly-That, during the said period by abusing your position as a public servant you obtained the aforesaid amount of Rs.3,40,044/- and thereby committed criminal misconduct u/s.13(1)(d) of the Prevention of Corruption Act, 1988 punishable u/s.13(2) of the said Act, and within my cognizance.

Thirdly- That, during the aforesaid period being a public servant employed as such and in such capacity entrusted with certain property i.e. 20250.75 quintal of rice amount to Rs.3,40,044/- committed criminal breach of trust in respect of said property and thereby committed an offence punishable u/s.409 IPC, and within my cognizance. .

Charges framed against Subash Chandra Naik (Petitioner No.2) First- That, you being a public servant, while working as Ex-VLW-cum-PEO Chamakpur G.P. lifted and shown distribution of 106.56 quintal of rice amounting to Rs.2,26,562/- in the name of dead and migrated persons between the period from 08/2012 to 3/2014, dishonestly misappropriated or otherwise converted for your own use which had been entrusted to you for distribution of TPDS (Targeted Public Distribution System) and thereby committed offence of misconduct u/s.13(1)(c) of the Prevention of Corruption Act, 1988 punishable u/s.13(2) of the said Act, and within my cognizance.

Secondly- That, during the said period by abusing your position as a public servant, you obtained the aforesaid amount of Rs.2,26,562/- and thereby committed criminal misconduct u/s.13(1)(d) of the Prevention of

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Corruption Act, 1988 punishable u/s.13(2) of the said Act, and within my cognizance.

Thirdly-That, during the aforesaid period being a public servant employed as such and in such capacity entrusted with certain property i.e. 106.56 Kgs. of rice amounting to Rs.2,26,562/-, committed criminal breach of trust in respect of said property and thereby committed an offence punishable u/s.409 I.P.C. and within my cognizance."

9. Mr. Mohapatra, learned counsel for the Petitioners

contended that in the present case, the alleged misappropriation of

rice amounting to Rs.3,40,044/- by Petitioner No.1 between the

period from September-2008 to July, 2012. The alleged amount of

misappropriation of Rs.2,26,562/- by the Petitioner No.2 is between

August-2012 to March-2014. In the said premises, it is submitted by

Mr. Mohapatra that both the Petitioners should not have been made

to face one trial by framing two different charges and due to such

irregularities, Petitioners are seriously prejudiced.

10. In the aforesaid context, learned counsel for the Petitioners

relying on the provision of Section 219(1) Cr.P.C. submits that the

order framing charge in the present case is in violation of the

provision as envisaged under Section 219(1) of Cr.P.C. The

provision of Section 219(1) of Cr.P.C. reads as follows :

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"When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences whether in respect of the same person or not, he may be charged with and tried at one trial for, any number of then not exceeding three."

11. Learned counsel for the Petitioners has also referred to and

relied upon the provision as envisaged under Sections 212(2) and

220(2) of Cr.P.C., the same has been quoted hereunder:

"212. Particulars as to time, place and person: (1) xx xx xx.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so trained shall be deemed to be a charge of one offence within the meaning of Section 219."

12. Relied upon the aforesaid provision, learned counsel for the

Petitioners submits that the aforesaid provision makes it clear that

the gross sum during the entire period of one year can be specified

and while specifying the gross sum itself are to be specified failing

which the Petitioners will be seriously prejudiced. He further

submits that since the provision as envisaged under Section 212(2)

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and 220(2) of Cr.P.C. has not been followed by the trial court in the

present case. The charge framed in the present case is defective and

such defect is not curable. Accordingly, he has distinguished an

argument that the rejection of Discharge Petition by the trial court is

illegal and is liable to be set aside.

13. Learned counsel for the Petitioners further contends that the

alleged misappropriate made by both Petitioners are pertaining to

two different period, therefore, the same cannot be tried together.

As such, the charge framed by the learned trial court is defective.

14. Mr. Mohapatra, learned counsel for the Petitioners further

contends that in view of the provision of law in Criminal Procedure

Code, the trial court has committed a gross illegality by referring to

the gross amount of misappropriation by the Petitioners in the

charge. Moreover, the allegations are pertaining to the period more

than one year. He further submits that when the period exceeds one

year or charge does not satisfy the first and the last date during

which the criminal breach of trust or dishonest misappropriation of

money has taken place, the same will cause serious prejudice to the

Petitioners and the charge so framed is a defective one. It is further

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contended that such defect cannot be cured or regularized by taking

resort to the provision contained under Section 465 of Cr.P.C. It

was further submitted that in view of Section 219(1) Cr.P.C., the

Petitioners must be charged with not more than three offences of

the same kind if it has been committed within a span of twelve

months from the first and to the last of such offences whether in

support of same person or not? Therefore, if an accused to have

alleged to commit four distinct alleged offences of misappropriation

involving separate and distinct as well as many, the prosecution is

by law permits to try three of such offences in one trial, if the same

is committed within a span of one year and further the remaining

charges, if the same are beyond one year, the same to be tried at

another trial. On such ground, learned counsel for the Petitioners

submits that the framing of charge is defective and as such

unsustainable in law.

15. Per contra, learned Standing Counsel for the Vigilance

Department supports the order of the learned Special Judge

(Vigilance), Keonjhar and he further submits that the learned trial

court has not committed with any illegality by framing charges as

indicated hereinabove and he has not committed any illegality by

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rejecting the application filed by the Petitioners under Section 227

read with Section 239 Cr.P.C.

16. Mr.Das further submits that in the event it is found that the

charge of misappropriation involved in this case is clubbed for a

period for existing one year, the same can be cured by segregating

and taking into consideration each year as one unit. He further

submits that on such technical objection, it cannot be said that the

entire trial will be vitiated and the accused Petitioners are entitled to

the benefit of discharge under Sections 227 Cr.P.C. read with

Section 239 Cr.P.C.

17. Having heard learned counsel for the parties, this Court

perused the charges framed by the trial court, which has been filed

along with the Revision Petition at Annexure-4. A close scrutiny of

the charges against both the Petitioners reveals that the same has

been framed in three categories:

18. On a bare perusal of the analysis of the charges against the

Petitioners, it is seen that the charges framed on three different

counts are not inconsonance with the provision of Criminal

Procedure Code. Now, therefore, the question arises as to whether

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the defect in the form of charge is a mere irregularity, which is

curable in nature or the same is a fatal mistake which would lead to

termination of the trial in the present case.

19. Relying upon the judgment of this Court in the case of

Krushna Chandra Behera vs. State of Orissa, reported in 2017 (I)

ILR-CUT 351. Badrinath Naik vs. State, reported in (1993) 6

OCR - 58, State of Jharkhand through S.P., CBI vs. Laluu

Prasad alias Lalu Prasad Yadav, reported in AIR 2017 Supreme

Court 3386. As such, the charge framed in the above matters are

defects and the same is not in consonance with the provision

contained in Criminal Procedure Code. More specifically the

provisions contained in Sections 212(2), 219(1) and 220 (2) of the

Cr.P.C.

20. In Lalu Prasad Yadav's case (supra), Hon'ble Supreme

Court of India while dealing with the issue of framing of charge and

more specifically in the context of Section 212, 219, 220 of the

Cr.P.C., in paragraphs-21 and 23 of the judgment it has been

observed as follows:

21. When the accused is charged with criminal breach of trust or dishonest appropriation of money

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or other immovable property, it shall be sufficient to specify the gross sum or describe the moveable property, it shall be sufficient to specify the gross sum or describe the moveable property in respect of which offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items of exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 provided that the time included between the first and last of such dates shall not exceed one year. A charge shall contain such particular as to time and place of the alleged offence and time period shall not exceed one year. Time period and place of the offence is material in such cases.

23. It is apparent from section 212 read with section 219 that there have to be separate trials for different years covering the period of more than one year. Same kind of offence is a different thing than the "same offence" for the purpose of sections 219, 220 or 300. The scheme of law is clear that separate charges for distinct offences must be framed separately and they cannot be clubbed together for more than one year.

21. Learned Standing Counsel for the Vigilance Department

relying upon the judgment in the case of Kadiri Kunhahammad vs.

State of Madras, reported in AIR 1960 SC 661, submits that the

trial court has not committed any illegality while framing charges

against the Petitioner in the aforesaid case. However, in the event

this Court comes to a conclusion that the charges had not been

framed properly than the same can be construed to be a mere

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irregularity and as such the same can be cured by the learned trial

court. In the aforesaid context, learned Standing Counsel for the

Vigilance Department relying upon paragraphs 6, 7 and 8 of the

judgment in Kadiri Kunhahammad 's case (supra), the relevant

portion of the said judgment is quoted herein below:

"6. The last argument urged by Mr. Purshottam is that the charge in question contravenes the mandatory provisions of the proviso to Section 222 (2) of the Code, and according to him this contravention vitiates the whole trial and renders void the order of conviction and sentence passed against the appellant. Section 222 occurs in Ch. XIX which deals with the form of charges. Sub-section (1) of Section 222 mentions the particulars as to time and place of the alleged offence which should be included in the charge. The object of this provision is to give the accused person a reasonably sufficient notice of the matter with which he is charged. Sub-section (2) provides that, when an accused person is charged with criminal breach of trust, it is sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the said offence had been committed. The proviso adds that it is unnecessary to specify particular items or exact dates provided that the time included between the first and the last of such dates shall not exceed one year. It is common ground that the breach of trust which gives rise to count one in the sixth charge covers a period between April 1949 and October 1951 which is more than one year and that is the basis of Mr. Purshottam's argument. We have already dealt with the effect of Section 235 (1).

Under the said provision more offences than one committed by the conspirators can be tried together at a trial where all the conspirators are jointly tried; and

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to that extent Section 234 (2) cannot be invoked in such a case. That being so, Mr. Purshottam's argument means nothing more than this that the form of the charge is inconsistent with the proviso to Section 222 (2). If the first count in the sixth charge had been split up into two sub-counts, each one specifying the amount in respect of which breach of trust had been committed during the period of one year that would have met the requirement of the proviso to Section 222 (2).

7. The failure of the prosecution to split up the first count into two Sub-counts cannot obviously be regarded as introducing a fatal infirmity in the validity of the trial. It would be noticed that this argument is not one of misjoinder. It is based on the formal requirement prescribed by the proviso to Section 222 (2) as to how charges of breach of trust should be framed. There is no difficulty in holding that such an irregularity can be cured both under Section 225 and Section 537 of the Code, provided of course no prejudice has been thereby caused to the appellant's case.

8. It would be relevant to state that the breach of every provision of the Code does not necessarily make the trial invalid. In this connection we may incidentally point out that the question about the effect of the breach of statutory provisions contained in the Code has often been raised for judicial decision. In Pulukuri Kottayya v. Emperor, 74 Ind App 65: (AIR 1947 PC 67), the Privy Council has held that if the criminal trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the

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cases in India between an illegality and an irregularity is one of degree rather than of kind. In that case the irregularity held proved consisted in the breach of the provisions of Section 162 of the Code. Having considered the relevant circumstances and facts proved in the case, the Privy Council held that the breach of Section 162 had caused no prejudice to the accused and could not sustain the argument that his trial was bad."

22. Having heard the rival contentions of the parties and upon

examination of the materials placed before this Court and upon

careful scrutiny of the charges framed by the trial court in the case,

this Court is of the considered view that the charge has not been

properly framed. Moreover, the said defect is a mere irregularity

and the same can be cured by the trial court. Accordingly, this

Court sets aside the impugned order dated 07.12.2017 passed in

VGR Case No.11 of 2014 by the learned Special Judge, Vigilance,

Keonjhar and further the learned court below is directed to

reconsider the matter in the light of the discussion made

hereinabove as well as in view of the provision contained in

Sections 212, 219 and 220 of Cr.P.C. and after providing