Nayak Sri Jagdish Prasad Singh vs State Of Odisha (Vigilance)
2023 Latest Caselaw 1488 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.3330 of 2022

  Nayak Sri Jagdish Prasad Singh           ....                Petitioner
                                         Mr. Basudev Pujari, Advocate



                                 -Versus-


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



            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:17.02.2023

1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioner for quashing of the FIR under Anenxure-2 and the criminal proceeding in connection with G.R. Case No.25 of 2022(V) pending in the file of learned Special Judge (Vigilance), Jeypore on the grounds inter alia that the same is not tenable in law since the matter is pending consideration before the Lokayukta based on a complaint vis-à-vis LY-325 of 2021.

2. By the order of the Lokayukta dated 16th September, 2022, DSP Vigilance, Malkangiri Unit lodged an FIR, consequent upon which, Vigilance Jeypore P.S. Case No.32 dated 12th October, 2022 registered under Sections 13(2) read with 13(1)(a) of the PC Act besides Sections 409 and 120-B IPC, which according to the petitioner, is not tenable in law. It is contended that registration of a case and initiation of a proceeding before the Vigilance court in G.R. Case No.25 of 2022(V) pursuant to such an order of the Lokayukta is not maintainable since the matter is a subject to be

Nayak Sri Jagdish Prasad Singh Vrs. State of Odisha (Vigilance)

dealt with in accordance with the provisions of the Odisha Lokayukta Act, 2014 (hereinafter referred to as 'the Act').

3. Heard Mr. Pujari, learned counsel appearing for the petitioner and Mr. Maharana, learned counsel for the Vigilance Department.

4. Mr. Pujari, learned counsel for the petitioner submits that the Vigilance Department could not have registered the case as it is essentially required to honour the direction of the Lokayukta to submit a report pursuant to its order dated 16th September, 2022. It is contended that instead of lodging the FIR and registering a case, the Vigilance Department is supposed to submit an investigation report as per Section 20(7) of the Act for the Lokayukta to take the further course of action in terms of sub-section (8) thereof. According to Mr. Pujari, there cannot be any proceeding before the Special court at the same time when the Lokayukta is in seisin over the matter and it directed the Vigilance Department to enquire and submit an investigation report.

5. On the other hand, Mr. Maharana, leaned counsel for the Vigilance Department submits that the FIR has been lodged for the purpose of investigation which is the normal procedure followed and course adopted and hence, the case has been registered and thereafter, the investigation report is to be submitted before the Lokayukta and continuation of the proceeding before the Special court is subject to the decision of the Lokayukta as per Section 20(8) of the Act.

6. In the present case, a complaint was received by the Lokayukta which was duly registered in LY-325 of 2021 against the petitioner and nine other officials of the Jeypore Forest Division. In the complaint, it was alleged that there was illegal felling of trees by some private individuals in collusion with the officials of said Forest

Nayak Sri Jagdish Prasad Singh Vrs. State of Odisha (Vigilance)

Division. A preliminary enquiry was conducted on the complaint and a report was submitted to the Lokayukta and thereafter, by order dated 16th September, 2022, order was passed by it and the case was recommended to the Vigilance Department for investigation and to submit a report within three months in accordance with Section 20(1)(a) of the Act. However, as informed to the Court, the Vigilance Department is yet to submit an investigation report for consideration of the Lokayukta. In the aforesaid backdrop, the petitioner alleges that a prosecution before the Special court has been launched without the investigation report being submitted by the Vigilance Department for consideration of the Lokayukta.

7. For better appreciation, the relevant provisions of the Act are extracted herein below:

"20. (1) The Lokayukta, on receipt of a complaint, if it decides to proceed further, may order:

(a) preliminary inquiry against any public servant by its Inquiry Wing or any agency to ascertain whether there exists a prima facie case for proceeding in the matter; or

(b) investigation by any agency or authority empowered under any law to investigate, where there exists a prima facie case:

Provided that any investigation under this clause shall be ordered only if in the opinion of the Lokayukta there is substantial material relating to the existence of a prima facie case or any earlier statutory investigation or enquiry regarding the same complaint reveals that a prima facie case exists:

Provided further that before ordering an investigation under this clause, the Lokayukta shall call for the explanation of the public servant and views of the competent authority, so as to determine whether there exists a prima facie case for investigation:

Nayak Sri Jagdish Prasad Singh Vrs. State of Odisha (Vigilance)

Provided also that a decision to order investigation under this clause shall be taken by a bench constituted by the Chairperson under Section 16.

(2) During the preliminary inquiry referred to in sub- section (1), the Inquiry Wing or any agency shall conduct a preliminary inquiry and on the basis of material, information and documents collected, seek the comments on the allegations made in the complaint from the public servant and competent authority and after obtaining the comments of the concerned public servant and competent authority, submit, within sixty days from the date of receipt of the reference, a report to the Lokayukta.

(3) A bench consisting of not less than three Members of the Lokayukta shall consider every report received under sub-section (2) from the Inquiry Wing or any agency and after giving an opportunity of being heard to the public servant, decide as to whether there exists a prima facie case, and make recommendations to proceed with one or more of the following actions, namely: (a) investigation by any agency (including any special investigation agency); (b) initiation of the departmental proceedings or any other appropriate action against the concerned public servant by the competent authority; (c) closure of the proceedings against the public servant and take action to proceed against the complainant under Section 46.

(4) XXX XXX

(5) XXX XXX

(6) xxx xxx

(7) Notwithstanding anything contained in Section 173 of the Code of Criminal Procedure, 1973, any investigating agency (including any special agency) shall, in respect of cases referred to it by the Lokayukta, submit the investigation report to the Lokayukta.

(8) A bench consisting of not less than three Members of the Lokayukta shall consider every report received by it under sub-section (7) from any investigating agency (including any special agency) and may decide as to: (a) filing of chargesheet or closure report before the Special Court against the public servant; (b) initiating the

Nayak Sri Jagdish Prasad Singh Vrs. State of Odisha (Vigilance)

departmental proceedings or any other appropriate action against the concerned public servant by the competent authority

(9) The Lokayukta may, after taking a decision under sub- section (8) on the filing of the chargesheet, direct its Prosecution Wing to initiate prosecution in a Special Court in respect of cases investigated by any investigating agency (including any special agency)."

8. Having gone through the relevant provisions as reproduced herein above, the Court finds that a detailed procedure is prescribed under the Act to deal with the complaints received by Lokayukta which is exhaustive in itself. If precisely stated, as per sub-section (8) of Section 20, the Lokayukta is to consider the investigation report received by it under sub-section (7) of the Act, as in the case at hand, it is to be submitted by the Vigilance Department and thereafter, the decision is to be taken whether to file a chargesheet or not or initiate any other appropriate action. In the event, the Lokayukta takes a call to file a chargesheet as per Section 20(8)(a) of the Act, it may engage its Prosecution Wing to conduct the prosecution in the Vigilance court in view of sub- section (9) thereof.

9. On receiving preliminary enquiry report, the Lokayukta directed investigation by the Vigilance Department which is currently underway and the decision to file a chargesheet and closure report is to be taken by the Lokayukta and if a chargesheet is directed to be filed, then it shall be before the Special court which is thereafter to proceed in accordance with law. Since a formal FIR is lodged and a case is registered, as it appears, due procedure has been followed by the Vigilance Department in order to comply the direction of the Lokayukta by its order dated 16th September, 2022 and as such, prosecution can only take off subject to the decision of the Lokayukta as per Section 20(8) of the Act. It is not that the

Nayak Sri Jagdish Prasad Singh Vrs. State of Odisha (Vigilance)

Vigilance Department is to submit the chargesheet directly before the Special court but instead to submit an investigation report for consideration and further course of action by the Lokayukta.

10. In view of the above, the apprehension of the petitioner to the effect that prosecution by the Vigilance Department has been initiated bypassing the provisions of the Act and overreaching the jurisdiction of the Lokayukta which is seized over the matter is wholly misplaced. It is reiterated that a prosecution against the petitioner or for that matter, any other officials can only be set into motion by the orders of the Lokayukta before whom the Vigilance Department is to submit the investigation report for a decision to be taken in accordance with Section 20(8) of the Act.

11. Accordingly, it is ordered.

12. Consequently, the CRLMC stands disposed of with the observation that the Vigilance Department would be required to submit the investigation report in connection with LY-325 of 2021 for consideration of the Lokayukta which is the Authority to take a decision either to launch any such prosecution or otherwise in terms of Section 20(8) of the Act which shall decide the fate of the proceeding in G.R. Case No.25 of 2022(V) of the file of learned Special Judge (Vigilance), Jeypore.

(R.K. Pattanaik) Judge

TUDU