Orissa High Court
Afr N.V. Jagannath @ Jagannadha ... vs State Of Odisha on 3 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1826 of 2013
AFR N.V. Jagannath @ Jagannadha Rao .... Petitioners
and Another
Mr. C. Ananda Rao, Senior Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. Manoranjan Mishra, ASC
AND
CRLMC NO.1825 OF 2013
Satyaprakash Panda .... Petitioner
Mr. C. Ananda Rao, Senior Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. Manoranjan Mishra, ASC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:03.01.2023
1.
Both the petitions have been clubbed together and stand
disposed of by the following order since a common question of
law is involved with a demand to quash the criminal proceeding in
connection with G.R. Case No.242 of 2008 pending in the file of
learned S.D.J.M. Gunupur.
2. The prosecution case in brief is that on 29th December, 2008, the
local police received credible information about a vehicle bearing
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
registration No.OR02AH2817 carrying cash to deliver it to naxal
cadres, whereafter, the same was intercepted and search was
conducted in presence of the persons (one of the petitioners,
namely, N.V. Jagannath Rao) seated therein and at last, cash of
Rs.12 lac was recovered and seized along with other materials, later
to which, FIR (Annexure-1) was lodged, consequent upon which,
Padampur P.S. Case No.45 of 2008 was registered under Section
120-B IPC read with Section 40(I)(c)(a) of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as 'the UAP Act')
and lastly chargesheet was submitted under the alleged offences
beside Section 121(A) IPC and Section 17(2) of the Criminal Law
Amendment Act against the petitioners and other accused persons.
3. In the present case, the petitioner in CRLMC No.1825 of 2013 is
the Chairman of Gandhi Group of Institutions, whereas, in CRLMC
No.1826 of 2013, the petitioners are the Administrator and
Secretary of the Gandhi Institute of Engineering & Technology,
Gunupur, who were found travelling in the alleged vehicle at the
relevant point of time. The petitioners have challenged the criminal
proceeding pending before the court of learned Sub-Divisional
Judicial Magistrate, Gunupur in G.R. Case No. 242 of 2008
principally on the ground of absence of valid sanction. Though few
more grounds have been pleaded but the challenge is confined to
the above and also for non-compliance of the provisions of Section
43 of the UAP Act.
4. Heard Mr. C. A. Rao, learned Senior Advocate for the
petitioners and Mr. M. Mishra, learned counsel for the State.
5. Mr. Rao, learned Senior Advocate submits that the investigation
has not been conducted by a DSP or a police officer of equivalent
rank as statutorily mandated in Section 43(c) of the UAP Act and
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
hence, the proceeding is liable to be quashed. It is contended that
the case was registered on 29th December, 2008 by the informant
himself and he again conducted the investigation and the SDPO,
Gunupur was engaged much later on 22nd February, 2009,
inasmuch as, all the material evidence during the investigation has
been collected by the informant which only enabled the SDPOs to
file the chargesheet and therefore, since the investigation is illegal,
the criminal proceeding is bad in law and untenable. In that regard,
a decision of this Court in Ranjit @ Rajat Kumar Das and Others
Vrs. State of Orissa 2003 (II) OLR 65 has been relied on to contend
that the investigation having not been conducted in terms of
Section 43(c) of the UAP Act, the criminal action cannot stand and
must have to crumble. With regard to sanction, Mr. Rao, learned
Senior Advocate would submit that it was not obtained in the
manner prescribed and while claiming so, cites an authority in the
case of Subhashree Das @ Mili Panda Vrs. State of Orissa 2011(II)
OLR 1000. It is contended by Mr. Rao that even by considering the
materials on record, no prima facie is case made out against the
petitioners and therefore, the criminal proceeding should be
quashed. Mr. Mishra, learned counsel for the State on the contrary
submits that the investigation has been conducted by the SDPOs
and hence is in accordance with the law and in so far as the
challenge to the sanction is concerned, the same was granted, a
decision which was taken after considering all the material
evidence.
6. On the ground that the investigation was not conducted by a
DSP or a senior officer of equivalent rank, Mr. Rao, learned Senior
Advocate submitted that it has vitiated the entire process including
submission of chargesheet and in that connection, the decision in
Ranjit @ Rajat Kumar Das (supra) is referred to. In the aforesaid
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
case, the investigation was conducted by an SI of police and the
DSP neither examined any witness nor did himself collect the
statement but only relied on evidence so gathered earlier, which
according to the Court, could never be said to have been filed on
the basis of investigation conducted in accordance with law in
terms of Rule 7 of SC & ST (PoA) Rules, 1995. However, in the
instant case, such is not the situation since after the offence was
detected, the charge of investigation was handed over to the
SDPO, Gunupur. Though initially an SI of police held preliminary
investigation but sometime thereafter, it was handed over to the
SDPO, Gunupur and further investigation was continued by the
subsequent SDPOs till the time the chargesheet was filed. Except the
initial stage of investigation which was managed by the SI of police
of the concerned PS, rest part of it was dealt with by the SDPOs of
Gunupur. The manner in which the cash was to be delivered with
its execution was enquired into and investigated upon by the
SDPOs and finally the chargesheet was submitted. In the decision of
Ranjit @ Rajat Kumar Das (supra), nothing was left for the DSP to
do and act upon in the matter of investigation as all the required
steps for the said purpose had already been accomplished by the
IO, who was not a DSP or a senior officer of equivalent rank and
under the above circumstances, the Court reached at a conclusion
that there has been non-compliance of Rule 7 of SC & ST (PoA)
Rules, 1995 read with the provisions of SC & ST (PoA) Act, 1989
after referring to the decision in Nazir Ahmed Vrs. King Emperor
AIR 1936PC253(2) and applying the principle laid down in Taylor
Vrs. Taylor (1876) 1 Ch. D 426, a judgment legal classicus on the
point which was quoted with approval by the Apex Court in the
case of State of U.P. Vrs. Singhara Singh AIR 1964 SC358. There is
no quarrel over the legal position that if a statute has prescribed a
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
procedure to act upon in a manner outlined, it necessarily prohibits
the doing of the act in any other manner other than which has
been specified. As to the present case, the later part of investigation
was conducted and concluded by the SDPOs till the time the
sanction was obtained unlike the other case in Ranjit @ Rajat
Kumar Das where the investigation by the DSP was merely a lip
service and an empty formality as he simply relied on the collected
evidence and did not do anything independently. In the instant
case, in contrast, the SDPOs collected further evidence and engaged
themselves in the collection of material; re-examined some
witnesses and examined few others and even received the
supervision reports from the Superintendent of Police, Rayagada. It
is not a case of relying upon the evidence collected by the SI of
police without more or complete absence of investigation by the
SDPOs. If no evidence is collected or no participation at all in the
process of investigation by the senior officer is shown or proved,
under such circumstances, it would not be unjustified to claim that
the chargesheet stood vitiated for non-compliance of the statutory
mandate. However by considering the case diary made available to
the Court, it is made to understand that though some evidence was
initially collected by the SI of police but the course of investigation
was taken further by the SDPOs who collected material, reassessed
the evidence and formed a subjective satisfaction leading to the
submission of the chargesheet, a process which was overall
supervised by the Superintendent of Police, Rayagada. Therefore,
the conclusion of the Court is that it is not a case of non-
compliance of Section 43 of the UAP Act and hence, the said
ground of challenge must have to fall flat.
7. Now the Court is to consider whether there is a valid sanction in
order to criminally prosecute the petitioners? Mr. Rao, learned
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
Senior Advocate submits that the sanction was though granted but
without due consideration of the materials collected during the
investigation as it was never reached the Authority but was all
along with the IO till 6th January, 2013 as evident from the case
diary. In other words, it is alleged that the entire case record was
with the SDPO, Gunupur till the very end and the sanction
Authority did not have the occasion to examine the same and in
this regard, the decision in Subhashree Das @ Mili Panda (supra)
was relied on by Mr. Rao, learned Senior Advocate. In the said
decision, this Court, having noticed that there was no independent
review before recommendation which was the very foundation for
obtaining sanction, quashed the order of cognizance as against the
fact that the State could not produce any formal order of
appointment of the review authority to deal with the cases under
Section 45(2) of the UAP Act. The prosecution in the present case is
based on a sanction accorded by the State Government in Home
Department vide order dated 21st December, 2012 received and
was later communicated by letter No. 225 dated 1st December,
2013 of the Superintendent of Police, Rayagada and as such, it was
preceded by a review and recommendation of the LR-cum-Special
Secretary to Government, Law Department, who has been declared
as the Reviewing Authority by a notification dated 17th March, 2011
of the Home Department, Government of Orissa and hence, it
appears to be in consonance with the procedure. It is alleged that
the original record was with the IO till 6th January, 2013 and
therefore, the concerned Authority did not have it for examination.
The contention is that there was no material for the concerned
Authority to consider and recommend prosecution when the
original record was lying with the SDPO, Gunupur till 6th January,
2013. In response to the above, it is claimed by the State that the
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
necessary correspondences have been made while obtaining
sanction and it would not be proper to allege that the original
record or the relevant papers had not been sent to the Authority
which was to review and recommend. In fact, an additional
affidavit is filed in both the cases by the SDPO, Gunupur, Rayagada
by stating that necessary steps were taken for obtaining sanction
order from the designated Authority, namely, the principal
Secretary of Home Department, who has been declared by the
State Government vide notification No.4512/C dated 21st October,
2009 and due procedure was followed all along for the said
purpose. From the case diary, it is made to appear that Mr. B.K.
Panigrahi SDPO, Gunupur had in fact submitted a detailed report
by 8th October, 2012 with all relevant papers before the
Superintendent of Police, Rayagada with a request to move the
Government for sanction. It may therefore be assumed that in due
course the relevant papers received by the Superintendent of
Police, Rayagada had been forwarded to the Home Department
for obtaining sanction. To claim that the original record was with
the SDPO, Gunupur till 6th January, 2013 and therefore, no
material was available for the Authority to examine may be
inappropriate since because the relevant materials collected during
investigation claimed to have been sent in the month of October,
2012. Of course, investigation was shown to have been pending
even after 8th October, 2012 and finally on 28th January, 2013, the
SDPO, Gunupur again requested the SP, Rayagada for having the
sanction in place. The case diary on being perused shows that the
sanction order dated 21st December, 2012 was received by the
SDPO, Gunupur on 9th February, 2013 which could not have been
feasible had the request not been sent much prior to 28th January,
2013 or for that matter, 6th January, 2013. Anyways the case diary
Satyaprakash Panda, N.V. Jagannath @ Jagannadha Rao and Another Vrs.
State of Odisha
revealed that the Government was moved for sanction in the
month of October with a detailed report submitted along with all
relevant documents. The State claims that the relevant papers were
examined by the Authority before sanction was granted and in that
respect, series of correspondences have been made. Prima facie it
appears that due process was followed and the evidence was
assessed by the Reviewing Authority and on further careful scrutiny,
the sanction was granted by the State Government. The dates on
which the record was received and assessed by the Authority and
the recommendation was made and if it was within time and
whether the evidence was sufficient to prosecute the petitioners,
for a decision on all such aspects, in the considered view of the
Court, should be left for being examined and thrashed out during
enquiry and trial.
8. Accordingly, it is ordered.
9. In the result, the CRLMCs stand dismissed.
(R.K. Pattanaik)
Judge
TUDU
