Binod Bihari Dash vs State Of Orissa And Another
2022 Latest Caselaw 6942 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLMC No. 3179 of 2016
AFR
         In the matter of application under Section 482 of the
         Criminal Procedure Code, 1973.
                              ---------------

         Binod Bihari Dash                .....          Petitioner


                                      -Versus-

         State of Orissa and another     .....            Opp. Parties



            For Petitioner   :    Mr. A.P. Bose, Advocate

For Opp. Parties : Mr. P.K. Pattnaik, A.G.A.

[O.P. No. 1]

Mr. P. Nanda[O.P. No.2]

P R E S E N T:

HONOURABLE MR. JUSTICE G. SATAPATHY

Date of hearing: 15.11.2022: Date of judgment: 29.11.2022

G.SATAPATHY, J. The Petitioner by way of this application U/S.

482 Cr.P.C challenges the order passed on 19.09.2016 by

learned J.M.F.C., S.Rampur in 1CC Case No. 08 of 2016

taking cognizance of offences punishable Under Sections

466/468/471/477-A of the IPC.

// 2 //

2. The short facts involved in this case are O.P No.2

instituted the complaint in 1CC No. 08 of 2016 in the

Court of J.M.F.C., S. Rampur against the Petitioner and

others for aforesaid offences by stating in the complaint

that the accused No.1 Himanshusekhar Biswal, while

filing his nomination in Zilaparisada Election, 2012 had

furnished affidavit disclosing therein self-acquired

property to an extent of Acre 4.233 decimals, Acre 0.456

decimals and Acre 2.758 decimals in Fatamunda,

Dunguripali and Sahala Mouzas respectively. It is also

stated in the complaint that the accused No.2 Pamini

Biswal in her affidavit had shown lands to an extent of

Acre 0.710 decimals, Acre 7.639 decimals and Acre 1.00

decimals in Dungurupali and Sahala Mouzas respectively.

Further, the complaint also discloses that the accused

No. 1 Himanshusekhar Biswal has 3.00 Acres of land in

Dunguripali Mouza with his two brothers and joint family

property of Acre 8.555 decimals in Dunguripali, out of

which accused No.1's share will be more than 2.00 Acres

and thereby, the accused has more than 18.00 Acres of

// 3 //

land and it is the duty of the Petitioner and one Jairaj

Bariha being the Tahasildar of S.Rampur and Prasanna

Pandey, R.I of Dunguripali to initiate ceiling proceeding

against Himanushu Biswal without any delay, but the

Petitioner in connivance with other accused persons had

not initiated any ceiling proceeding, even on the request

of O.P No.2-cum-complainant. It is further stated in the

complaint that R.I Dunguripali (accused No.4) had

fabricated report and records to classify most of the

lands of accused Nos. 1 & 2 as Class-II lands to protect

accused Nos. 1 & 2 from divesting surplus land as ceiling

surplus.

On receipt of the complaint, learned J.M.F.C

S.Rampur recorded the initial statement of the

complainant and the statement of another witness

namely Balistha Pradhan. Further, on perusal of

complaint together with initial statement and statement

of witnesses, the learned J.M.F.C., S.Rampur finding

prima facie case took cognizance of the aforesaid

// 4 //

offences by the impugned order. Hence, this CRLMC by

the Petitioner.

3. In the course of hearing of the CRLMC, Mr. A.P.

Bose, learned counsel for the Petitioner submits that the

learned Magistrate has taken cognizance of offences

mechanically without following the due procedure of law,

but the Petitioner is a Government Servant and the act

alleged against him is reasonably connected with

discharge of his official duty and therefore, without valid

sanction obtained against the Petitioner, the Courts

should not have taken cognizance of offences. It is also

submitted that the Petitioner was the Tahasildar at the

relevant point of time and he was alleged to have failed

to initiate ceiling proceeding against the co-accused and,

thereby, he was in active connivance with co-accused to

avoid the ceiling proceeding against the co-accused

persons, but the Petitioner had not only discharged his

duty but also had not neglected in initiating proceeding

against the co-accused under OPLE Act. It is, accordingly,

// 5 //

contended that the accused was never negligent in his

duty. Further, learned counsel for the Petitioner has also

filed the certified copy of the order passed by the

Tahasildar, S.Rampur in EC No. 54 of 2016 and certified

copy of order passed on 10.05.2017 by sub-collector,

Sonepur in Encroachment Appeal Case No. 71 of 2016 in

support of his contention that the Petitioner was never

negligent in his duty and he had taken steps against co-

accused and thereby, the act of the accused cannot

constitute any offence for which the complaint needs to

be quashed.

4. On the other hand, Mr. P. Nanda, learned counsel

for the O.P. No. 2 submits that the documents filed today

are created for the purpose of this case and thereby, no

reliance can be placed on those documents to indicate

that no offence was committed by the Petitioner. It is,

however, submitted that the Petitioner was not only

negligent but also had entered into conspiracy with co-

accused to facilitate them the benefits under OLR Act

// 6 //

and, thereby, the Petitioner has committed the offences.

It is accordingly prayed by him to dismiss the CRLMC.

5. On bestowing a careful and anxious consideration to

the rival submissions, it undisputedly appears that the

Petitioner's challenge to the impugned order is on two

folds.

"(i) The impugned order is unsustainable for want of sanction against the Petitioner, and

(ii) The acts alleged against the Petitioner do not constitute any offence."

6. Adverting to the first contention, undeniably the

Petitioner was the Tahasildar, S. Rampur at the relevant

point of time. A bare perusal of the complaint would go

to indicate that the Act alleged against him is not only

reasonably connected with due discharge of his duties

but also the same are matters relating to exercise of

power by the Authority concerned under OLR Act, since it

was alleged against the Petitioner inter-alia for conniving

with co-accused Himanshusekhar Biswal and Pamini

// 7 //

Biswal for not initiating ceiling proceeding against them

so as to facilitate them for ceiling surplus land which is

against law. It can never be disputed that initiation of

ceiling proceeding is coming under the OLR Act and

thereby, such act has to be discharged by the competent

Authority as prescribed by the said Act. It is, therefore,

very clear that the act alleged against the Petitioner is

not only reasonably connected with due discharge of his

duties but also it is directly coming under the provisions

of OLR Act vesting such power to be exercised by the

competent Authority. Once the act alleged against the

Petitioner is found to be coming under in due discharge

of his official duty, the impunity from criminal

prosecution would automatically get attracted and such

officer cannot be prosecuted without obtaining any valid

sanction from the Competent Authority, which is

condition precedent to take cognizance of offence for the

acts complained of in terms of Section 197 Cr.P.C.

// 8 //

7. Previous sanction as contemplated U/S. 197 Cr.P.C.

is a protection to the officers from false and vexatious

prosecution. Section 197 Cr.P.C. mandates that when

any person who is or was a Judge or a 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 Courts shall take cognizance of such offence

except with the previous sanction of the Competent

Authority. In the present case, especially when no prior

sanction has been accorded/obtained against the

Petitioner and Jairaj Bariha, the R.I. of Dunguripali and

Prasanna Pande, the Tahasildar, Tarbha and when the

acts alleged against these three accused persons are

definitely connected with the discharge of their official

duties, the Court should not have taken cognizance of

offences and issued process against these three persons

accused of offences. It is, therefore, clear that the

impugned order together with issuance of summon

// 9 //

against the Petitioner and the accused R.I., Dunguripali

and Tahasildar, Tarbha is unsustainable in the eye of law.

8. It was alleged against the Petitioner, R.I.,

Dunguripali and Tahasildar, Tarbha that they have acted

in connivance with other co-accused persons and,

thereby, facilitated the other co-accused persons to enjoy

ceiling surplus land by manufacturing documents and,

therefore, the allegations against the Petitioner and two

officers are for entering into conspiracy with co-accused

persons, but neither the complaint nor the complainant in

his initial statement nor the witnesses in enquiry could

able to state the act of conspiracy against the Petitioner

and two Government officials except stating a bald

statement in the complaint that the above accused in

connivance with other accused did not initiate ceiling

proceeding against co-accused. A bare perusal of the

complaint would go to indicate the act alleged against the

Petitioner and two others Government officials amounts

to negligence in their official duty at best which can be

// 10 //

redressed on Administrative side, if established by the

complainant, but such acts complained of against the

Petitioner and two Government officials never constitutes

any offence since it is alleged against them for not

initiating ceiling proceeding in connivance. It is therefore,

clear that the ingredients of offences under which

cognizance was taken are lacking against the Petitioner

and two other Government officials, rather if established,

such act complained of against them would at best

amount to negligence in discharge of duties which can be

dealt with by the Authorities in Administrative side, but

by no stretch of imagination, the act complained of

against the Petitioner and two other Government officials

would constitute any offence. Hence, the complaint does

not disclose commission of any offence against the

Petitioner and two other Government officials. However,

since there are allegations against Accused nos. 1 and 2

for filing affidavit suppressing some information by way

of some documents, this Court refrains itself from

entering into the arena of appreciation of evidence and

// 11 //

documents which is left open to the learned Court in

seisin of the case.

9. According to the scheme of Section 482 Cr.P.C.,

there are three grounds under which a criminal

proceeding can be quashed and the said grounds are:-

(i) To give effect to an order under the Cr.P.C.

(ii) To prevent the abuse of process of court.

(iii) Otherwise to secure the ends of justice.

Although, the inherent jurisdiction of High Court

under Section 482 Cr.P.C. is wide, but it has to be

exercised sparingly, carefully and with great caution and

only when such exercise is justified by the tests

specifically laid down in this section itself. However, the

inherent power should not be exercised to stifle a

legitimate prosecution, but at the same time, the Court

should not hesitate to exercise such powers when it is

brought to its knowledge that the criminal prosecution

has been used as an instrument of harassment or for

seeking private vendetta or with an ulterior motive to

pressurize the accused. At the same time, the Court

// 12 //

should not form any prima facie decision or opinion in a

case where the entire facts are incomplete and hazy and

more so, when the evidence has not been collected and

produced before the Court. What would be the test to be

applied by the Court to quash a prosecution at the initial

stage has been well elucidated by the Apex Court in

Madhavrao Jiwajiraoscindia and others Vrs.

Sambhajirao Chandrojirao Angre and others

(1988); 1 SCC 692 wherein it has been held that when

a prosecution at the initial stage is asked to be quashed,

the test to be applied by the Court is as to whether the

uncontroverted allegations as made prima facie establish

the offence. In this case, on cumulative assessment of

facts and analysis of law would go to indicate that the act

complained of against the Petitioner is related to due

discharge of his official duties and also does not

constitute any offence against the Petitioner, nonetheless

the same benefit also accrues in favour of the R.I.,

Dunguripali and Tahasildar, Tarbha who have been

arrayed as accused in the complaint on self same

// 13 //

allegation, which is left open to the Court of original

jurisdiction to take a call on it. In this case at hand, since

cognizance has been taken by the impugned order

without obtaining any valid sanction against the

Government officials including the Petitioner in violation

of Section 197 Cr.P.C. and besides the Government

officials, two private individuals have been arrayed as an

accused, the impugned order dated 19.09.2016 taking

cognizance of offences is hereby set aside, but it is left

open to the Court to take decision against other co-

accused persons by passing an order afresh after taking

into consideration the facts, documents and materials on

record and issue process if required against any of the

accused persons.

10. In the present scenario, the impugned order is not

only unsustainable in the eye of law for want of valid

sanction against the Petitioner but also the criminal

proceeding against the Petitioner is nothing but an abuse

of process of Court, and to secure the ends of justice, the

impugned order as well as the criminal proceeding

// 14 //

against the Petitioner is required to be quashed. Hence,

the impugned order together with summoning of the

Petitioner and consequently, the criminal proceeding

against the Petitioner are hereby quashed.

Resultantly, the CRLMC is allowed on contest to the

extent indicated in the preceding paragraph, but in the

circumstance without any cost.

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

G.SATAPATHY, JUDGE

Orissa High Court, Cuttack The 29th November, 2022, Priyajit