Susanta Kumar Dalei @ Susanta vs State Of Odisha (Vigilance)
2023 Latest Caselaw 3018 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                 CRLMC No.1505 of 2022

Susanta Kumar Dalei @ Susanta       ....            Petitioner
Kumar Dalai
                     Mr. Smruti Ranjan Mohapatra, Advocate



                           -Versus-


State of Odisha (Vigilance)         ....        Opposite Parties
         Mr. Niranjan Maharana, ASC for Vigilance Department



               CRLMC No.3468 of 2022

Sarat Kumar Panda                     ....             Petitioner
                                      Mr. H.M. Dhal, Advocate



                           -Versus-


State of Odisha (Vigilance)         ....        Opposite Parties
         Mr. Niranjan Maharana, ASC for Vigilance Department



                CRLMC No.2236 of 2012

Pradip Kumar Mohanty                 ....              Petitioner
                          Mr. Biren Sankar Tripathy, Advocate



                           -Versus-


State of Odisha (Vigilance)         ....        Opposite Parties
         Mr. Niranjan Maharana, ASC for Vigilance Department




                                                     Page 1 of 14
                       CRLMC No.5585 of 2015

Basanta Kumar Mishra                    ....            Petitioner
                            Mr. Prasanta Kumar Sahoo, Advocate



                              -Versus-


State of Odisha (Vigilance)         ....        Opposite Parties
         Mr. Niranjan Maharana, ASC for Vigilance Department


                      CRLMC No.2096 of 2018

Bimbadhar Sahu                         ....               Petitioner
                                     Mr. R.K. Pattnaik, Advocate



                              -Versus-


State of Odisha (Vigilance)         ....        Opposite Parties
         Mr. Niranjan Maharana, ASC for Vigilance Department

                             And
                      CRLMC No.1134 of 2021

Mamidi Gourinath                       ....             Petitioner
                                   Mr. C. Samantaray, Advocate



                             -Versus-


State of Odisha (Vigilance)        ....        Opposite Parties
        Mr. Niranjan Maharana, ASC for Vigilance Department


          CORAM:
          JUSTICE R.K. PATTANAIK

             DATE OF JUDGMENT:10.04.2023

1.

Invoking inherent jurisdiction, the petitioners have challenged the impugned order of cognizance and

consequential orders passed in G.R. Case No.27 of 2001(V) by the learned Special Judge (Vigilance), Jeypore and also the criminal proceeding as a whole on the grounds inter alia that the same is not tenable in law and hence, liable to be quashed in the interest of justice.

2. On the basis of a report lodged by the Inspector of Police, Vigilance, S.I., Cuttack, a case under Sections 13(2) read with 13(1)(d) of P.C. Act and Sections 471, 477(A) and 120-B IPC besides Section 27 of the Orissa Forest Act was registered against the petitioners vide Berhampur Vigilance P.S. Case No.27 dated 27th July, 2001 which corresponds to Vigilance G.R. Case No.27 of 2001(V).

3. Heard learned counsel for the petitioners and Mr. Moharana, learned counsel for the Vigilance Department.

4. It is contended by learned counsel for the petitioners that no case is made out against petitioners and therefore, the impugned orders and also the criminal proceeding are liable to be quashed since its continuance would be an abuse of the process of law. It is also contended that the proceeding against two of the accused persons has been quashed by the orders of this Court in CRLMC Nos.2577 of 2008 and 3033 of 2011 and hence parity should be extended as some of the petitioners are even on better footing than them who have been exonerated of the criminal charges. Mr. Moharana, learned counsel for the Vigilance Department, however, submits that a prima facie case is made out against all the petitioners and parity which is claimed by some of them is not acceptable for the reason that the co-accused persons, who have been let off are differently situated.

5. The FIR was lodged with the allegation that there was large scale illicit felling of live trees and illicit transportation and disposal of timbers to Andhra Pradesh through a private contractor, namely, M/s. Keshari Traders in the guise of salvage operation which was to be only in respect of uprooted and wind fallen trees due to natural calamities. Consequently, Berhampur Vigilance P.S. Case No.27 of 2001 was registered and finally, the chargesheet was submitted against the petitioners and others under the alleged offences.

6. Mr. Moharana, learned counsel for the Vigilance Department submits that the Government has a policy decision in banning felling or cutting of trees from the reserve forests in the State from 1992 onwards and imposed total moratorium on felling of the standing trees with effect from 25th November, 1997. It is contended by Mr. Moharana that in the name of salvage operation, a private contractor was engaged, who in connivance with the petitioners, removed the timbers which further led to its transportation out of the State.

7. The learned counsel for the petitioners submits that the disciplinary proceeding in respect of the petitioner in CRLMC No.1134 of 2021 has been dropped by the order dated 16th October, 2020 of the Forest and Environment Department, Govt. of Odisha. Furthermore, two other co-accused persons, as according to learned counsel for the petitioners, have also been exonerated by orders in CRLMC Nos.2577 of 2008 and 3033 of 2011. It is contended that since the disciplinary proceeding against the petitioner in CRLMC No.1134 of 2021 has been discontinued and dropped, the Vigilance proceeding should be terminated. In respect of other petitioners, who were on duty, the learned counsel appearing for them advanced an argument that they are the officers of the Forest Department

and OFDC and while discharging official duties, the alleged overt act is said to have been committed, however, the Vigilance proceeding against them is unfair and unjustified and therefore, it should be brought to an end and quashed.

8. In CRLMC No.3030 of 2011, the proceeding against the petitioner therein was quashed on the premise that the entire felling of trees had already been completed before his joining as the ACF, Malkangiri. In the case of the petitioner in CRLMC No.2577 of 2008, there was no material on record to show that he was in any way responsible for the alleged misconduct though there was allegation of conspiracy against some of the co-accused persons superior in rank to him. In CRLMC No.1134 of 2021, the petitioner was posted as Conservator of Forest, Koraput during the relevant period and the allegation is that he was instrumental in the appointment of the private contractor as the Raw Material Procurer (RMP), which was accomplished ignoring the guidelines of the Government. It is alleged that the named accused persons including the said petitioner recommended appointment of RMP which was objected to by some of the senior officials with dissenting notes which was not heeded to and with a dishonest intention all of them in violation of the Government policy engaged the RMP whose status was merely a labour contractor and not as the owner of the salvaged timbers as he was only to lift natural wind fallen and uprooted trees and timbers from the forest and to deposit it with the OFDC. It is also alleged that the terms and conditions formulated by the Government vide letter No.2239 dated 23rd December, 1989 was not adhered to since a royalty component was included in the order of appointment of the RMP and due to incorporation of such a condition, it facilitated the private contractor to lift the timbers either green

or wind fallen on payment of meagre royalty and further resulted in its transportation out of the State. So it is a case with the allegation that all the petitioners were part of the illicit transportation of felling and lifting of timbers and its disposal thereby causing loss of revenue to the Government.

9. Gone through the chargesheet and it is revealed that the allegation of large scale illicit felling of standing green trees was revealed during and in course of investigation. Precisely speaking, the allegation against the petitioners is with regard to the illicit felling of trees in the forest area in the name of salvage operation. It is alleged that the petitioner in CRLMC No.1134 of 2021 along with two other co-accused, namely, Bhaskar Chandra Mohapatra, PCCF and Basanta Kumar Mishra, MD-cum-OFDC constituted a Committee themselves and appointed a contractor as the RMP for the purpose of the salvage operation, which was to remove wind fallen and uprooted trees due to natural calamities in the dense forest of Kalimela in the district of Malkangiri during the month of November, 1998.

10. The contention of the learned counsel for the petitioner in CRLMC No.1134 of 2021 is that since two other co-accused persons have already been discharged and he is similarly situated and therefore, the criminal proceeding as against him should be dropped. The copies of the orders in respect of the co-accused persons in CRLMC Nos.2577 and 3033 of 2021 have been produced and on a reading of the same, the Court finds that the accused, namely, Susanta Nanda was found guilty for dereliction in duty by not exercising due diligence and sound judgment. Nevertheless, it was found that the said petitioner joined as DFO, Jeypore Division on 3rd January, 2000, whereas, the RMP was appointed on 27th December,

1997. The Court noticed that the said petitioner was not responsible for the engagement of the RMP and hence, on such ground and with a conclusion that there was lack of diligence on his part, quashed the criminal proceeding against him. Similarly, in respect of the other co-accused, due to lack of evidence with regard to his involvement and participation and for the fact that he joined as OCF, Malkangiri by the time when the salvage operation was already over, quashed the proceeding. As regards the petitioner in CRLMC No.1134 of 2021, the Court does not find him on a similar footing vis-à-vis the accused persons, who have been discharged by the orders of this Court in CRLMC Nos.2577 of 2008 and 3033 of 2011. As per the Vigilance Department, the petitioner in CRLMC No.1134 of 2021 was largely responsible for the appointment of the RMP along with two other officials, namely, PCCF and MD, OFDC. In course of investigation, it was revealed that the RMP, a labour contractor was to lift the naturally wind fallen trees and timbers from the forest. However, after the Government approved such appointment, in violation of the terms and conditions thereof, the MD, OFDC issued appointment order to the RMP by incorporating the royalty component, as a result of which, the same facilitated lifting and disposal of timbers on payment of meagre royalty. The decision making process involved others officers of the Government and it has been drawn to the attention of the Court that two of them, namely, Special Secretary to Government and a Conservator of Forest had given dissenting notes vis-a-vis engagement of a RMP expressing apprehension of cutting of green trees taking advantage of salvage operation but it was ignored and as alleged, the petitioner and two others proceeded and ensured appointment of the contractor for the said purpose. A joint physical verification was

conducted by the Vigilance Department along with the Forest officials during which number of irregularities and illegalities were detected with the details of timbers removed and disposed of by the RMP. A high level Committee was constituted which was led by Chief Conservator of Forest and Director of OFDC to enquire into the matter and it verified the records and took measurement of the timbers and found that the RMP was indulged in cutting of large scale green trees in connivance with the Forest and OFDC officials including DFO, OFDC, Conservator of Forests and others. The Committees' finding and the enquiry report is stated to have been submitted to the Government in 2000. Similarly, an Ex-PCCF (Wild Life), Odisha was asked to enquire and it was by the orders of the Government of Odisha and he said to have visited the site and similarly submitted a report to the Government on 20th December, 2000 as revealed by Mr. Moharana, learned counsel for the Vigilance Department and in such report, the RMP was found guilty for lifting green trees and timbers during the salvage operation causing huge pecuniary loss to the Government. Furthermore, it is stated that the alleged petitioner had also received information about the illegality committed by the RMP while removing the timbers during the salvage operation but no steps were taken by him in that regard. So, therefore, considering the allegation against the petitioner in CRLMC No.1134 of 2021, he cannot said to be similarly situated like the other two officers, who have been exonerated and notwithstanding the fact that the disciplinary proceeding against him was dropped, the Court is of the view that he cannot be let off without being subjected to trial. A series of irregularities and illegalities have been pointed out by the Vigilance Department so also the enquiries held by the Committees and other higher officials prima facie proved it and

since it was detected that green timbers have been removed by the RMP, which was also engaged in violation of the terms and conditions of the Government incorporating the royalty component, the same is required to be examined in threadbare and adjudicated upon during trial.

11. With regard to the petitioners, who were serving by then, it is claimed that they were holding official positions and in such capacity, perpetuated the illegality committed by the RMP with the allegation of collusion. The details of the facts and even the responsibilities assigned to them have been highlighted upon in the chargesheet with the roles played by each of the officials during the salvage operation which led to the illegal removal of the trees from the forest. One among them was the then Managing Director, OFDC, who is a party to the process of appointment of the RMP along with the Conservator of Forest of PCCF, Mr. Bhaskar Chandra Mohapatra. As to non-public servants connected to the salvage operation, they cannot claim exoneration either since enquiries and investigation revealed their involvement and participation. So, considering the materials on record and the fact that the petitioners found to have in certain ways contributed in the illegal felling and removal of the green trees and timbers, it rather leads to a conclusion that the same is sufficient to criminally prosecute all of them and therefore, no case is made out for interference and hence, rightly the learned court below took cognizance of the offences and proceeded against all and also declined to discharge some of them during enquiry.

12. Before parting with, the Court would like to reiterate the settled legal position as to the exercise of inherent jurisdiction. Section 482 Cr.P.C. is a power inherent to make such orders as may be necessary to prevent abuse of the process of any court

or otherwise to secure the ends of justice. In Narinder Singh Vrs. State of Punjab (2014) 6 SCC 466, the Apex Court held and observed that while deciding matters under Section 482 Cr.P.C., the objectives such as the above are to be satisfied. Again in State of Karnataka Vrs. Muniswamy AIR 1977 SC 1489, it is held that inherent jurisdiction may be exercised under the circumstances to do complete justice. In Prasant Bharti Vrs. State of NCT of Delhi (2013) 9 SCC 293, the Apex Court observed that if the answer to the following questions

(a) whether the material relied upon by the accused is sound reasonable and indubitable or the material is of sterling and impeccable quality? (b) whether the defence is sufficient to reject and overrule the factual assertions contained in the complaint? (c) whether the material relied on by the defence has not been refuted by the prosecution or such material cannot be justifiably refuted? and (d) whether the proceeding with the trial would result in abuse of process of the court and hence would not serve the ends of justice? is in affirmative, then the Courts should quash the proceedings by exercising its power under Section 482 Cr.P.C. While exercising such power, the dictum of the Supreme Court in Madhu Limaye Vrs. State of Maharastra AIR 1978 SC 47 has to be borne in mind. The landmark decision in State of Haryana and others Vrs. Ch. Bhajan Lal and others AIR 1992 SC 604 laid down the guidelines to be followed in the exercise of extra-ordinary jurisdiction to quash the criminal proceedings referring to one of its earliest judgments in R.P. Kapur Vrs. State of Punjab AIR 1960 SC 862. At the same time, in all such decisions referred to above, the limitation to exercise the inherent jurisdiction has also been outlined. In Dineshbhai Chandubhai Patel Vrs. State of Gujarat decided in SLP (Crl.) No.5155 of 2017 and batch of cases and disposed of on 5th January, 2018, the Supreme Court

observed that the Court cannot act as an investigating agency nor exercise powers like an appellate court in order to examine, if the factual contents do disclose any prima facie cognizable offences or not. It is also well settled law that piecemeal trial cannot be resorted to while exercising such jurisdiction under Section 482 Cr.P.C. In the case at hand, investigation proved existence of a prima facie case and a whole lot of materials were found against the petitioners and the same needs examination on receiving evidence. The defence of the petitioners shall have to be considered by the learned court below and a detailed scrutiny at the initial stage of the prosecution cannot be undertaken by the Court while exercising inherent power. Being alive to the settled position of law discussed hereinabove, the Court is of the considered view that the involvement or otherwise of the petitioners should be left open for a decision by the Vigilance court during trial.

13. To restate the facts before winding up, the Court finds that the learned counsel for the petitioner in CRLMC No.1134 of 2021 referred to a copy of the order of the Govt. in Forest and Environment Department. On a reading of the said order, it is made to appear that the departmental proceeding has been dropped on the ground that the action against Mr. Susanta Nanda on the same issue was closed. In fact, the said accused and the Vigilance prosecution against him was quashed in CRLMC No.2577 of 2008 since the Vigilance Department did not dispute him of having any role to play in the appointment of the RMP. In other words, the departmental action against the said petitioner was closed after the proceeding vis-à-vis the accused in CRLMC No.2577 of 2008 was quashed. It is claimed that since there is exoneration of the petitioner in the departmental proceeding, the Vigilance prosecution should be

brought to an end. While contending so, Mr. Samantaray cited a decision of this Court decided in CRLMC No.3407 of 2010 (Minaketan Pani Vrs. State of Odisha). In the aforesaid decision, this Court found the petitioner therein to have been fully exonerated and hence on such ground quashed the prosecution. In the present case, the departmental proceeding was closed since another accused was let off after the order in CRLMC No.2577 of 2008. Moreover, considering the representation of the said petitioner and in view of the closure of the departmental proceeding against the co-accused, the action against him was dropped which is not a decision on merit or a case of exoneration of charges honourably. Nevertheless, the Govt. granted the sanction in order to criminally prosecute the petitioner which is also challenged on the ground for not properly considering the materials on record. According to the Court, such an aspect is to be examined during trial. What were the materials placed before the Govt. and whether there was judicious application of mind at the time of according sanction is a matter to be examined by the Vigilance court. The plea of parity referring to exoneration of two other accused persons in CRLMC No.2577 of 2008 and CRLMC No.3033 of 2011 cannot be entertained since they stood allowed under the mitigating circumstances found in their favour. The need of sanction under Section 197 Cr.P.C. is raised by Mr. Samantaray by placing reliance on the decision of the Apex Court in D. Devaraj Vrs. Owais Sabeer Hussain decided in Criminal Appeal No.458 of 2020 and disposed of on 18th June, 2020. Since it is a Vigilance prosecution and large scale felling of trees and removal of timbers has been alleged leading to a loss to the Govt. exchequer, whether, it was an act in failing to exercise due diligence or an error in judgment or otherwise, having regard to the entirety of the materials and

circumstances under which action was taken and sanction was accorded by the Govt. to criminally prosecute the petitioners, the Court is of the view that the plea of immunity in terms of Section 197 Cr. P.C. shall have to be examined during trial. Mr. Swain, learned counsel for the petitioner in CRLMC No.3468 of 2011 submitted that the alleged offences are not made out so also the charge of criminal conspiracy is equally baseless and hence, the prosecution against him is not maintainable. Whether the said petitioner committed criminal misconduct being a public servant apart from other offences is to be gone into during trial considering the evidence as a whole. What was the role played by the said petitioner is a matter of evidence. Furthermore the above petitioner cannot claim discharge on the ground that he had retired from Govt. service by the time FIR was lodged and that he was not in picture when the RMP was allowed to operate. All such questions are factual based which needs determination only after appreciating the entire of the evidence. The details of the large scale felling of green trees by fabricating records and lifting of timbers by the RMP have been described in the chargesheet and therefore, the defence of the above petitioner would require examination of materials and as mentioned earlier, he cannot be discharged on any such ground as has been pleaded for. Similarly, Mr. Sahu, learned counsel for the petitioner in CRLMC No.5585 of 2015 raised more or less similar ground and contended that the allegation against the petitioner is not prima facie established and placed reliance on the exoneration of other two accused persons in CRLMC No.2577 of 2008 and CRLMC No.3033 of 2011 reported in 2014 (II)ORL 129. However, the said grounds have already been dealt with by the Court while rejecting the plea for discharge. The grounds raised by Mr. Tripathy, learned counsel for the petitioner in CRLMC No.2236 of 2012 are on

the grounds that the disciplinary proceeding against the petitioner in CRLMC No.1134 of 2021 has been dropped besides exoneration of another in CRLMC No.2577 of 2008. Moreover the above petitioner is one of the partners of the RMP which was involved in the salvage operation. The allegation is about clandestine felling of live trees and removing them from the forest area under the excuse of salvage clearance which was at the instance of the RMP of which the said petitioner happens to be one of its partners. The Court is also not inclined to go into the details in order to segregate the role played by the said petitioner as in any case he is stated to be a partner of the RMP. The grounds of challenge in respect of others are not elaborately discussed and dealt with since all are factually based decision on which can only be properly ensured during trial to which the Court cannot attend to while exercising its inherent jurisdiction. It is summed up with the following words that the individual participation or otherwise of the petitioners shall have to be tested on the floor of the court during and in course of trial as a lot of facts are involved which are needed to be examined. The ultimate conclusion of the Court is that no case is made out for interference with the Vigilance prosecution since it does not find any strong or compelling reason to exercise its inherent jurisdiction.

14. Accordingly, it is ordered.

15. In the result, CRLMCs stand dismissed.

(R.K. Pattanaik) Judge UKSahoo