Nalinikanta Muduli And Others vs State Of Odisha (Vigilance
2023 Latest Caselaw 2815 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No.1959 of 2022

   Nalinikanta Muduli and Others       ....            Petitioners
                             Mr. Chitta Ranjan Swain, Advocate



                                -Versus-


   State of Odisha (Vigilance              ....       Opposite Party
   Department)
                                                Mr. N. Maharana,
                                     Standing Counsel for Vigilance
                            AND

                     CRLMC No.1562 of 2016

   Nalinikanta Muduli and Another          ....           Petitioners
                                           Mr. P. Behera, Advocate



                                -Versus-


   State of Orissa                         ....      Opposite Party
                                                Mr. N. Maharana,
                                     Standing Counsel for Vigilance



             CORAM:
             JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:05.04.2023

 1.

Both the petitions stand disposed of by the following order.

2. CRLMC No.1562 of 2016: The petitioners have challenged the impugned order dated 18th March, 2016 passed in T.R. No.9/52 of 2008/2004 by the learned Special Judge, Special Court,

Bhubaneswar whereby discharge application under Section 227 Cr.P.C. was rejected.

3. CRLMC No.1959 of 2022: An application under Section 227 Cr.P.C. was moved before the learned court below by the petitioners for their discharge on the ground of death of the principal accused and abatement of the proceeding which was declined and rejected by order dated 23rd June, 2022.

4. The petitioners have been chargesheeted under Section 13(1)(e) read with 13(2) of P.C. Act and Sections 120-B, 109 and 201 IPC with the allegation that they abetted the principal accused, who was a public servant and was found in possession of assets disproportionate to his known sources of income which was furthermore diverted to run their family business concerns, namely, M/s. Zerina Marines (P) Ltd., M/s. Zerina Construction (P) Ltd. and M/s. Naba Bharat Trust.

5. As it appears, the petitioners as well as the principal accused had approached this Court in CRLMC Nos.1109 and 792 of 2009 seeking discharge and by a common judgment dated 11th October, 2010, both the petitions were disposed of with a direction for further investigation in terms of Section 173(8) Cr.P.C. Pursuant to the above direction, investigation was continued and a supplementary chargesheet was furnished with a finding that petitioner No.1 had utilized the ill-gotten money as he did not have sufficient source of income to create the assets and he having abetted thereby allegedly committed the offences punishable under Section 109 IPC.

6. Heard learned counsel for the petitioners and Mr. Maharana, learned ASC for Vigilance Department.

7. That apart, in CRLMC No.1959 of 2022, the petitioners have claimed discharge on the ground that the principal accused has in the meantime expired and the proceeding stood abated against him and when the charge has not been framed yet. With respect to CRLMC No.1562 of 2016, the challenge is based on merit and on the premise that there has been no material to frame the charge the fact which was lost sight of by the learned court below notwithstanding submission of supplementary chargesheet on completion of further investigation in terms of Section 173(8) Cr.P.C.

8. Gone through the chargesheets which are on record.

9. Mr. Swain, learned counsel for the petitioners in CRLMC No.1959 of 2022 submits that when the principal accused, who was a public servant, has died and no charge is framed as on date, the petitioners, who are allegedly the abettors, should not be subjected to trial as trial by a Special Court is related to P.C. offences which is sine qua non for exercising jurisdiction. While contending so, Mr. Swain, learned counsel for the petitioners refers to Sections 3(1) and 4(3) of the P.C. Act to submit that since P.C. offences are allegedly against the principal accused and he is dead, the petitioners who are non-public servants cannot be made to face trial in a proceeding before the Special Court and in that regard, cited a decision of the Apex Court in State through CBI, New Delhi Vrs. Jitender Kumar Singh (2014) 11 SCC 724. Mr. Moharana, learned counsel for the Vigilance Department submits that notwithstanding the death of the principal accused and charge not being framed yet, the Special Court is not divested of jurisdiction to proceed against the petitioners, who are admittedly non-public servants.

10. Mr. Behera, learned counsel for the petitioners in CRLMC No.1562 of 2016 submits that the petitioners could have been discharged, however, the learned court below fell into gross error and illegally fastened liability on petitioner No.1 presuming the creation of assets with the investment of the principal accused. It is further submitted that there is no iota of evidence to show that the unaccounted income of the principal accused was diverted to the accounts of the companies run and managed by petitioner No.1 and as such, the involvement is based on mere surmise and conjecture and hence, the learned court below on the basis of unfounded and unsubstantiated allegations held it otherwise and declined to discharge both the petitioners including petitioner No.2, who is the wife of the principal accused with the conclusion that they are the abettors. Mr. Moharana, learned counsel for the Vigilance Department would submit that sufficient material is on record to show that the petitioners despite having no independent sources of income accumulated properties acquired through the ill-gotten money of the principal accused and hence, therefore, the criminal action is justified and rightly the learned court below declined to discharge them vide the impugned order under Annexure-4.

11. In CRLMC No.1959 of 2022, the contention of the petitioners that they should be discharged and not to be tried by the Special Court on account of death of the principal accused is to be examined. The decision in Jitender Kumar Singh (supra) is placed reliance on by Mr. Swain, learned counsel for the petitioners. In the aforesaid decision, it has been held and observed that a Special Judge exercising the powers under the P.C. Act is not expected to try non-PC offences unconnected with PC offences under Section 3(1) of the P.C. Act and in the event, the Special Court not trying any offence under Section 3(1) of the P.C. Act,

the question to try non-PC offence would not arise; and trying of the PC offences is a jurisdictional aspect exercising the power under Section 4(3) thereof. In the said case, the Special Judge after framing of the charge for PC and non-PC offences, when posted the matter for prosecution evidence, the sole public servant died and under such circumstances, the Apex Court concluded that since the Special Judge has also exercised his power under Section 4(3) of the PC Act, he cannot be divested of the jurisdiction to proceed against the non-public servant even if the sole public servant dies, inasmuch as, the charge against the public servant alone abates. A situation was visualized by the Supreme Court in Jitender Kumar Singh (supra) where the public servant dies at the fag end of the trial and there also, on the death of the public servant, the entire trial would not be vitiated as the object and purpose of the P.C Act is to effectively combat corruption. Referring to the above decision, Mr. Swain, learned counsel for the petitioners submits that as the proceeding stands abated and no charge is framed by the learned Special Court, the petitioners should be discharged with the argument that the trial has not been commenced and hence jurisdiction by the court below for non-PC offences against them, who are non-public servants cannot be exercised. The Court is of the considered view that the prosecution is based on the allegation of corruption and acquisition of disproportionate assets by the principal accused and the petitioners being the abettors and on the death of the principal accused, the jurisdiction of the Special Court is not divested. The very foundation of the charge is that the petitioners abetted the principal accused, who allegedly acquired and amassed disproportionate assets and with the ill-gotten money, the properties have been acquired by them. In the said decision, the Apex Court held that exclusion of the jurisdiction for the PC

offences has been explicitly expressed in Section 4(1) of the PC Act which does not find a place in respect of non-PC offence in sub- section (3) of Section 4 of the PC Act and it is not obligatory on the part of a Special Judge to try non-P.C. offences as the expression 'may also try' indicates an element of discretion which would depend on the facts of each case and the inter relation between the PC and non-PC offences. In the present case, the charge is of acquiring disproportionate assets by the deceased principal accused and as the petitioners could not satisfactory account for the assets owned and possessed by them, for which, they have been arrayed as abettors and by applying the ratio in Jitender Kumar Singh (supra), it has to be held that even though the charge is not framed, the learned court below is not divested of jurisdiction to proceed with the trial vis-à-vis the petitioners. In other words, the Special court is to continue with the proceeding even if it has not framed charge as the jurisdiction is exercisable with reference to Section 3(1) and 4(3) of P.C. Act.

12. With regard to the other case in CRLMC No.1562 of 2016, the grounds have been raised by the petitioners that the filing of chargesheet is based on presumption is unacceptable. The investigation revealed that the petitioners did not have any independent sources of income and assets were acquired in their names and it is claimed to be with the ill-gotten money. Mr. Behera, learned counsel for the petitioners contended that the petitioners cannot be held and treated as the abettors even if assets have been found against their names which is opposed and objected to by Mr. Moharana, learned counsel for the Vigilance Department. Having gone through the chargesheets, the Court finds that a detailed enquiry has been made vis-à-vis petitioner No.1 which revealed the criminal misconduct on the part of the principal accused and the former having had no independent

source to begin with the business and also to become a super class contractor, the license for which is alleged to have been managed due to the influence of the latter. Furthermore, the Court is not inclined to examine the evidence in threadbare since it could result in a piecemeal trial and therefore, the grounds should be left open for decision during trial. Since, there is evidence on record reasonably sufficient to proceed against the petitioners, the learned court below therefore cannot be said to have committed any illegality while declining to discharge them.

13. Hence, it is ordered.

14. In the results, both the CRLMCs stand dismissed.

(R.K. Pattanaik) Judge

U.K. Sahoo