Afr Makardhwaj Kalsai vs State Of Odisha
2023 Latest Caselaw 4433 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLMC No. 399 of 2023

        Application under Section 482 of Code of Criminal
        Procedure.
                                  ---------------
AFR     Makardhwaj Kalsai                           ......           Petitioner

                                    -Versus-

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

        Advocate(s) appeared in this case:-
        __________________________________________________________
            For Petitioner   : M/s. T.Nanda, B.K.Panda &
                               D.Kar, Advocates

           For Opp. Party    : Mr. N. Maharana,
                               Standing Counsel for Vigilance
                               Department.
        ________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

26th April, 2023

SASHIKANTA MISHRA, J. The petitioner is one of the accused in

C.T.R. No. 13 of 2018 pending in the Court of learned

Special Judge (Vigilance), Bolangir. In the present

application, filed under Section 482 of Cr.P.C. he seeks to

challenge the orders dated 13.12.2022 and 20.12.2022

passed by the said Court in rejecting the petition filed by

him for discharge and in framing charge under Sections 13

(2)/13(1)(d) of the P.C. Act and Sections 465/471/477-

A/120 B of the I.P.C. respectively.

2. Basing on report submitted by the D.S.P.,

C.I.D., C.B, Odisha, Cuttack C.I.D.,C.B. P.S. Case No.18 of

2014 was registered under Sections 120-B/409/465/

467/471 of I.P.C. against one Debraj Mishra and others.

Investigation of the case was subsequently transferred to

the Vigilance Police and accordingly, Sambalpur Vigilance

P.S. Case No.78 of 2014 was registered against the said

Debraj Mishra and others under Sections 13(2) read with

13(1)(d) of the P.C. Act and under Sections

409/465/467/471/120-B of I.P.C. Upon completion of

investigation, the Vigilance Police submitted charge sheet

under the aforementioned offences on 30.07.2018. On

30.11.2022, the petitioner filed an application under

Section 239 of Cr.P.C. seeking discharge on the ground

that no prima facie case was made out against him. Said

petition was heard by the Court below and rejected vide

order dated 13.12.2022. Further, the Court below framed

charge under the aforementioned offences vide order dated

20.12.2022.

3. Heard Mr. T. Nanda, learned counsel for the

petitioner and Mr. N. Maharana, learned Standing Counsel

for the Vigilance Department.

4. Mr. Nanda has argued that the petitioner was

not named in the F.I.R. but was arrayed as an accused on

the statement of co-accused persons. Further, other

employees who stand on the same footing have not been

charge-sheeted but cited as prosecution witnesses.

Moreover, in the departmental proceeding conducted

against him on the self-same charges, the petitioner has

been completely exonerated. Since no prima facie case is

made out, the impugned orders are bad in law. Mr. Nanda

further submits that the petitioner has been implicated

only on the basis of suspicion.

5. Mr.N. Maharana, on the other hand, has

argued that there are ample materials to prima facie show

the involvement of the petitioner in the occurrence.

Moreover, it is clearly revealed that he had played an active

role in entering into the evaluation centre and manipulated

the tabulation sheets of the candidates with an ulterior

motive. Mr. Maharana further submits that all these

materials arouse a grave suspicion regarding commission

of the offence by the petitioner-accused and therefore, the

Court below has rightly rejected the petition for discharge.

6. It is trite that at the stage of framing

charge/discharge, the Court is required to sift the

materials on record solely for the purpose of being satisfied

whether a prima facie case against the accused is made out

or not. Further, if the materials placed before the Court

disclose grave suspicion against the accused, which has

not been properly explained, the Court will be fully justified

in framing charge. Reference may be had in this regard to

the case of Union of India v. Prafulla Kumar Samal,

reported in (1979) 3 SCC 4.

7. Keeping the above principle of law in mind, the

facts of the case may now be examined. It transpires from

the record that an advertisement was issued by the

Collector, Bolangir on 17.12.2011 for filling up the posts of

R.I./A.R.I. and Amin. A recruitment committee was formed

by the Collector. The question-cum-answer sheets were

kept under the custody of the District Treasury, Bolangir.

Upon examination of answer/tabulation sheets during

enquiry it came to light that there were several

manipulations and tampering. On investigation by the

Vigilance Department, the complicity of several persons,

including the present petitioner came to light. In particular,

it was alleged that the petitioner along with one Niranjan

Tiwari had entered into the E.O.C. building where the

manipulation was done. The role of the petitioner in the

occurrence came to light from the statement of the

witnesses examined by the I.O.

8. A perusal of the statement of the witnesses

available in the case record reveals that they have

implicated the petitioner along with others as having been

involved in the alleged manipulation. Therefore,

notwithstanding the fact that the petitioner was not named

in the F.I.R, fact remains that his complicity came to light

in course of investigation. The petitioner has tried to

explain his conduct by taking several pleas including the

plea that he had acted on the instructions of the superior

officers i.e., the Collector and the Head Clerk. Obviously,

this is his defence in the case and does not absolve him

from the allegation. It is further stated that persons

similarly situated as him have not been charge-sheeted but

then there is nothing on record to show as to if the said

persons had also entered into the E.O.C. building like the

petitioner. Without stating anything more it would suffice

to note that there are enough materials on record which

give rise to a strong suspicion regarding commission of the

alleged offence by the accused. In other words, the

materials available on record are adequate for the Court to

form a presumptive opinion that the accused had

committed the offence.

9. Reading of the impugned order dated

13.12.2022 reveals that the Court below has gone through

the F.I.R., charge sheet, statement of witnesses recorded

under Section 161 Cr.P.C. and other materials including

documents to form a presumptive opinion that the accused

persons including the petitioner adopted corrupt practices,

manipulated and forged marks and documents. The Court

below has also held and, according to this Court rightly so,

that the grounds for discharge put forth by the accused

appears to be their defence plea which can only be

answered during trial on the basis of evidence adduced. As

regards the impugned order dated 20.12.2022, this Court

finds nothing wrong therein so as to be persuaded to

interfere.

10. In view of what has been stated hereinbefore

this Court finds no reason to interfere with the impugned

orders.

11. For the foregoing reasons therefore, the

CRLMC is found to be devoid of merit and is therefore,

dismissed.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 26th April, 2023/ A.K. Rana, P.A.