Orissa High Court
Sasmita Patra @ Patro vs State Of Odisha(Vigilance) on 31 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1868 of 2021
Sasmita Patra @ Patro .... Petitioner
Mr. Deba Prasad Das, Advocate
-Versus-
State of Odisha(Vigilance) .... Opposite Party
Mr. Niranjan Maharana, ASC
for (Vigilance Department)
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
31.01.2023
Order No.
04. 1. Heard Mr. Das, learned counsel for the petitioner and Mr.
Maharana, learned counsel for the Vigilance Department.
2. Instant petition under Section 482 Cr.P.C. is filed by the
petitioner assailing the impugned order under Anneuxre-2 passed in
T.R. Case No. 7/39 of 2017/2015 by the learned Special Judge,
Special Court Vigilance, Bhubaneswar whereby an application
under Section 239 Cr.P.C. seeking discharge moved by her was
rejected.
3. A copy of the impugned order is at Anneuxre-2.
4. A copy of the chargesheet is at Anneuxre-1 and the same is
perused by the Court.
5. Mr. Das, learned counsel for the petitioner submits that the
petitioner could not have been prosecuted with the aid of Section
109 IPC in absence of any material so as to show that she abated in
the acquisition of disproportionate assets by her husband, who is
the principal accused. It is further submitted that the petitioner is
having independent source of income and a tax payer and has
acquired assets out of such independent income, still then, for the
reasons best known the Vigilance Department roped her in and
made an accused in Berhampur Vigilance P.S.Case No. 1 of 2011
with the aid of Section 109 IPC even in absence of any trace of
evidence so as to prove abatement.
6. Mr. Maharana, learned counsel for the Vigilance
Department, on the other hand, submits that the petitioner failed
to offer any reasonable explanation with regard to the assets
purchased in her name though she claims to have independent
source of income and submits income tax returns. In absence of any
such plausible explanation from the petitioner and having regard to
the assets found to be disproportionate acquired by the principal
accused in her name, the learned court below did not commit any
error or illegality in framing of the charge vis-à-vis the petitioner
with the aid of Section 109 IPC and the hence, the impugned order
of Annexure-2 as absolutely justified and in accordance with law.
While contending so, Mr. Maharana, learned counsel for the
Vigilance Department refers to an order on this Court in CRLREV
No. 433 of 2012 where in similar fact situation and in absence of
reasonable explanation by the accused-wife, it was held that a
prima facie case is made out of having abated the commission of
offence under Section(s) 13(2) read with Section 13(1)(e) of P.C.
Act. Furthermore, a decision of the Apex Court in State Through
Deputy Superintendent of Police Vrs. R. Soundirarasu Etc. reported
in (2022) 88 OCR (SC) 482 is placed reliance on by Mr. Maharana,
learned counsel for the Vigilance Department in support of his
contention.
7. In so far as the present case is concerned, the allegation as
against the petitioner is of having acquired assets in her without
any source of income and reasonable explanation as against the
charge of disproportionate assets levelled against her husband. It is
alleged that since the petitioner is having independent income and
submitted income tax returns, satisfactory explanation was
submitted and she could not have arrayed as an abettor.
8. The Court is of the considered view that whether the assets
have been acquired by the petitioner out of her own income and it
covers the assets purchased in her name but has been alleged by the
Vigilance Department otherwise is a matter which lies within the
domain of the trial court.
9. In fact, the Apex Court in decision of R. Soundirarasu
(supra) held and observed that documents, such as, income tax
returns cannot be relied upon as conclusive proof to show that the
income is from a lawful source under the P.C. Act. While referring
to the decision in J.Jayalalitha, it has also been held therein that
even if such returns and orders are admissible, the probative value
would depend on the nature of the information furnished, the
findings recorded in the orders and having a bearing on the charge
levelled. It is further observed that in any view of the matter, such
returns and orders would not ipso facto either conclusively prove
or disprove the charge and can at best be pieces of evidence which
have to be evaluated along with the other materials on record.
The above observation was quoted with approval having been
borrowed from an earlier judgment in case of Thommandru
Hannah Vijayalakshmi @ T.H.Vijayalakshmi (supra) and further
concluded that the decision is to emphasize that submission of
income tax returns and assessment orders passed thereon would
not constitute a foolproof defence against a charge of acquisition of
assets disproportionate to the known lawful sources of income as
contemplated under the P.C. Act. It has also been held therein that
the High Court should be loath in closing prosecution on any such
ground. In that regard, the Apex Court held that at the stage of
framing of charge, the High Court should not act itself and
discharge as a role of Charted Accountant. In other words, the
exercise to say that computation with regard to assessment vis-à-vis
disproportionate assets acquired by a public servant and purchased
in the name of relatives should not be carried out at stage of
framing of charge.
10. Having considered the decisions (supra), the Court is of the
view that the defence in so far as the present case is concerned as
to if the petitioner acquired out of her independent source of
income or the assets accumulated in her name is a matter for
consideration during trial since the petitioner claimed independent
income and herself a tax payer and defended the acquisition of
assets though alleged by the Vigilance Department to have been
purchased by her husband. In other words, the Court is of the view
that the learned court below did not err or commit any illegality in
declining to discharge the petitioner as it was prayed for and rightly
for the reasons and hence, the impugned order under Anneuxure-2
does not suffer from any legal infirmity and thus, calls from no
interference.
11. In the result, the CRLMC stands dismissed.
(R.K. Pattanaik)
Judge
kabita
