Srihari Charan Das vs State Of Odisha (Vigilance)
2023 Latest Caselaw 7207 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                              CRLA No.208 of 2019

              Srihari Charan Das                  ....           Appellant


                                   Mr. G.N. Mishra, Advocate

                                       -versus-

              State of Odisha (Vigilance)         ....       Respondent

                                   Mr. N. Moharana,
                                   Addl. Standing Counsel (Vigilance)

                                    CORAM:
                              JUSTICE S.K. SAHOO
                                      ORDER

04.07.2023 Order No. I.A. No.2187 of 2022

8. This matter is taken up through Hybrid arrangement

(video conferencing/physical mode).

Heard Mr. G.N. Mishra, learned counsel for the appellant-

petitioner and Mr. N. Moharana, learned Additional Standing

Counsel for the Vigilance Department.

This is an application under section 389 of Cr.P.C. filed by

the petitioner Srihari Charan Das for suspension/stay of his

conviction passed by the learned Special Judge, Vigilance,

Phulbani in G.R. Case No.117 of 2013 (V) (T.R. Case No.07 of

2014) vide impugned judgment and order dated 03.04.2019 in

which the learned trial Court has sentenced him to undergo R.I.

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for one year and to pay a fine of Rs.5,000/- (rupees five

thousand) only, in default, to undergo R.I. for one year for the

offence under section 7 of the Prevention of Corruption Act,

1988 (hereinafter 'P.C. Act').

The petitioner faced trial for commission of offence under

sections 7, 13(1)(d)(i)(ii) read with section 13(2) of the P.C. Act,

on the accusation that he demanded and accepted a sum of

Rs.6,000/- (rupees six thousand) from the complainant-Balaram

Kanhar (P.W.1) as bribe, for separate recording of Patta in the

name of P.W.1 and his brother by deleting the name of his sister

during his incumbency as Munsiram -cum- Peskar of Settlement

Camp at Bandhagada.

The prosecution case, in short, is that on 11.06.2013

when the Settlement Camp was going on at Bandhagarh Primary

School for the locality of P.W.1, he along with his brother and

sister were noticed to appear at the Settlement Camp and the

matter was heard in presence of the Assistant Settlement

Officer, Prafulla Kumar Sahu (P.W.7) and the petitioner. It is the

further prosecution case that on that day, i.e., on 11.06.2013

the petitioner demanded a sum of Rs.6,000/- (rupees six

thousand) from P.W.1 as bribe to delete the name of the sister

of P.W.1 from the R.O.R. and for separate recording of the

R.O.R. in the name of P.W.1 as well as his brother and advised

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them to obtain an affidavit of his sister containing her no

objection. In connection with the said demand of bribe, first

information report was lodged on 19.06.2013 before the

Vigilance authorities by P.W.1 and as per the direction of the

Superintendent of Vigilance, a trap was organized on

20.06.2013. A preparatory meeting was conducted in presence

of the decoy (P.W.1) and official witnesses and P.W.1 was

instructed to hand over the Government Currency Notes of

Rs.6,000/- to the petitioner only on his demand. P.W.4 was

selected to act as an overhearing witness to accompany the

decoy and to overhear the conversation and relay the signal

after noticing the transaction of bribe. On completion of the

preparatory meeting, preparation report was prepared and

P.W.1 along with the overhearing witness proceeded to the

Settlement Camp and other official witnesses followed them and

when P.W.1 approached the petitioner, it is stated that the

petitioner again demanded bribe money and P.W.1 handed over

the bribe money and the petitioner received the same and kept

the same on his office table. At that point of time, signal was

given by the overhearing witness (P.W.4) and the trap party

members rushed to the petitioner and caught hold the petitioner

with the bribe money and his hand washes were taken.

Detection report was prepared and the bottles containing hand

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washes, table wash were sent for chemical analysis to RFSL,

Berhampur and on completion of investigation, charge sheet was

submitted against the petitioner under sections 7 & 13

(1)(d)(i)(ii) read with 13(2) of the P.C. Act.

During course of the trial, the prosecution examined

seven witnesses. P.W.1 is the complainant/decoy, P.W.2 was the

Junior Clerk in the R & B Division, Phulbani who not only

remained present at the time of preparatory meeting but also

when recovery of tainted money was made and hand washes of

the appellant were taken, P.W.3 is a witness to the seizure of

Biodata of the appellant, P.W.4 is the overhearing witness,

P.W.5 is the Trap Laying Officer, P.W.6 is the Investigating

Officer and P.W.7 is the then Asst. Settlement Officer of

Settlement Camp, Bandhagarh.

The learned trial Court, in the impugned judgment,

though has been pleased to hold the petitioner not guilty under

section 13(1)(d)(i)(ii) punishable under section 13(2) of the P.C.

Act and acquitted him under such charge, however, found the

petitioner guilty under section 7 of the P.C. Act. The operative

part of the judgment where the learned trial Court has found the

petitioner guilty under section 7 of the P.C. Act is quoted herein

below:-

"28. In the instant case, the demand made by

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the accused to the complainant is itself is an attempt to obtain gratification otherwise then legal remuneration since attempt to commit an offence means and includes any act towards commission of the offence. The circumstances of this case go to show that the accused could not accept the demanded money as because the objection case records were not with him at the time of offering the demand amount and that was already been taken with the ASO. Therefore, the demand itself made by the accused clearly comes within the purview of "attempt to obtain" gratification. Further more, as the accused himself demanded bribe to the complainant, it also implies that he agreed to receive the bribe from the complainant which comes clearly within the purview of "agrees to accept" within the meaning of section 7 of the P.C. Act. Furthermore, in the instant case the F.I.R. exhibited as Ext.1 and also proved to be written in the handwriting of the informant without objection, goes to show that the complainant also agreed to pay the bribe amount to the demand of the accused having no way out and thereafter lodged the F.I.R. Therefore, the act of the accused in demanding the bribe squarely falls within the scope of purview of "agrees to accept" any gratification otherwise then legal remuneration defined U/s. 7 of the P.C. Act.

29. It has been argued on behalf of the accused that since the accused is not in a position to record the patta exclusive in the name of the informant and in the name of his brother, mere demand on his part cannot be considered as a motive or reward for doing or forbearing to do any official work by the accused in favour of the complainant.

Adverting to the contention, it is to be noted, it is no doubt true that the accused is not in a position or empowered to record the Khata exclusive in the name of the informant and his brother by deleting the name of his sister, but as he was dealing with the Objection Case Records,

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he, in his official capacity as Peskar -cum- Munsiram is proved to have demanded the bribe money, from the complainant to show favour to him in connection with his official functions, which is the motive of the accused behind demanding the bribe to the complainant. Hence, this Court has no hesitation to hold that the prosecution has succeeded in proving the charge under Section 7 of the P.C. Act in view of the proof of factum of demand made by the accused to the complainant on 11.06.2013 and hence I found the accused guilty under Section 7 of the P.C. Act."

Learned counsel for the petitioner argued that the

conviction of the petitioner under section 7 of the P.C. Act is not

legally sustainable inasmuch as even though the learned trial

Court came to a finding that demand was made by the petitioner

to P.W.1 on 11.06.2013, however, no charge has been framed in

relation to any demand made on 11.06.2013. Even the

complainant being examined as P.W.1 has not specifically stated

that there was any demand of bribe made by the petitioner to

him on 11.06.2013. In the accused statement recorded under

section 313 of Cr.P.C., no question has been put to the

petitioner with respect to such demand alleged to have been

made on 11.06.2013. It is further argued that in view of the

nature of evidence on record, the petitioner has got good

chances of success in the appeal and balance of convenience is

in his favour. The petitioner has retired from his service and he

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is not getting even his provisional pension for which he is

passing his days in hardship. There is also no chance of early

hearing of the appeal in the near future and therefore, unless

the impugned judgment and order of conviction is stayed, the

petitioner will be seriously prejudiced.

Mr. Moharana, learned Additional Standing Counsel for the

Vigilance Department, on the other hand, submits that whether

the ingredients of the offence under Section 7 of the P.C. Act

would be attracted or not is to be decided at the final hearing of

the criminal appeal and stoppage of the pension of the petitioner

after the conviction is in accordance with Odisha Civil Services

(Pension) Rules, 1992 and the power to stay conviction should

be exercised only in exceptional circumstances to prevent

injustice and irreversible consequences and withholding the

pension does not amount to an irreversible consequences as the

petitioner would be entitled to get all the arrears of pension if his

conviction is set aside in the appeal. Therefore, it is not a fit

case where order for stay of conviction, as handed down by the

trial Court, should be passed. He relied upon the decision of

Constitution Bench of the Hon'ble Supreme Court in the case of

Neeraj Dutta -Vrs.- State (Govt. of N.C.T. of Delhi)

reported in 2023 (1) Orissa Law Reviews 688 and

// 8 //

judgment of this Court in the case of Pruthwiraj Lenka -Vrs.-

State of Odisha (Vig.) reported in (2022) 85 Orissa

Criminal Reports 667.

Adverting to the contentions raised by the learned counsel

for the respective parties, it appears that the charge against the

petitioner was framed as follows;

"Firstly: That you being a public servant employed as Munsarim-cum-Peskar in the officer of the Assistant Settlement Officer, Bandhagarh, Settlement Camp, Dist-Kandhamal on 20th day of June, 2013, demanded and accepted Rs.6,000/- (rupees six thousand) from the complainant Balaram Kanhar, S/o-Late Subha Kanhar, Village- Barepanga, PS-Phiringia, Dist-Kandhamal as gratification other than legal remuneration as a motive or reward and thereby committed an offence punishable U/s.7 of the Prevention of Corruption Act, 1988 and within my cognizable.

Secondly, That you being a public servant on the same day, time and place by corrupt and illegal means and abusing your position, as public servant, obtained for your pecuniary advantage to the tune of Rs.6,000/- from the complainant Balaram Kanhar for recording the land in separate Patta in his name and his brother's name separately, and thereby, committed an offence U/s.13(1)(d)(i)(ii) punishable U/s.13(2) of the Prevention of Corruption Act, 1988 and within my cognizance."

Even though P.W.1 has mentioned in the first information

report that the bribe of Rs.6,000/- was demanded from him by

the petitioner on 11.06.2013, but in his evidence during trial, he

// 9 //

has nowhere stated that on 11.06.2013, demand of Rs.6000/-

was made by the petitioner to him. In the charge framed under

section 7 of the P.C. Act, it is stated that on 20th day of June,

2013, the petitioner demanded and accepted Rs.6,000/- from

P.W.1 as gratification other than legal remuneration as a motive

or reward and thus, the dates of demand are quite different. Law

is well settled as held in the case of Madhusudan Singh -Vrs.-

State of Bihar reported in A.I.R. 1995 S.C. 1437, that the

F.I.R. does not constitute substantive evidence, however it can

be used as a previous statement for the purpose of

corroboration/contradiction to the maker thereof. The allegation

has to be proved at the trial. In the case of Utpal Das -Vrs.-

State of West Bengal, reported in (2010) 46 Orissa

Criminal Reports (SC) 600, it is held that the first information

report does not constitute substantive evidence. It can,

however, only be used as a previous statement for the purposes

of either corroborating its maker or for contradicting him. No

evidence has been adduced by the prosecution during trial that

there was a demand of Rs.6000/- on 11.06.2013 by the

petitioner to the P.W.1. Thus, basing on the recitals made in the

F.I.R., it is not proper to come to such a finding. Even in the

accused statement, no question has been put to the petitioner

that on 11.06.2013, there was a demand of bribe made by him

// 10 //

to the complainant (P.W.1). Therefore, in absence of any charge

so also the evidence on record that on 11.06.2013, the

petitioner demanded a sum of Rs.6000/- to the complainant

(P.W.1) as bribe, the finding of the learned trial Court in

Paragaph-29 of the judgment, while convicting the petitioner

under section 7 P.C. Act, that the prosecution has succeeded in

proving the factum of demand made by the petitioner to the

complainant on 11.06.2013 can be said prima facie to be based

on no evidence on record.

In the case of Neeraj Dutta (supra), the Constitution

Bench was dealing with the issue of the modes by which the

demand can be proved. The Constitution Bench has laid down

that the proof need not be only by direct oral or documentary

evidence, but it can be by way of other evidence including

circumstantial evidence. When reliance is placed on

circumstantial evidence to prove the demand for gratification,

the prosecution must establish each and every circumstance

from which the prosecution wants the Court to draw a conclusion

of guilt. The facts so established must be consistent with only

one hypothesis that there was a demand made for gratification

by the accused. It was held in that case that if there is an offer

to pay by the bribe giver without there being any demand from

the public servant and the latter simply accepts the offer and

// 11 //

receives the illegal gratification, it is a case of acceptance as per

Section 7 of the Act. In such a case, there need not be a prior

demand by the public servant. In the case in hand, the

complainant (P.W.1) has not made any offer to pay to the

appellant on 11.06.2013 and therefore, acceptance of offer by

the appellant does not arise.

In the case of K.C. Sareen -Vrs.- C.B.I., Chandigarh

reported in A.I.R. 2001 Supreme Court 3320, it is held as

follows:-

"10. The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction, the Court should not suspend the operation of the order of conviction. The Court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that, we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior Court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is different matter.

// 12 //

11. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functions of the public offices through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic policy. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an appellate Court or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fall out would be

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one of shaking the system itself. Hence, it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction.

12. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant, the appellate Court or the revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment of suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."

In the case of State of Maharashtra -Vrs.- Gajanan

reported in A.I.R. 2004 Supreme Court 1188, it is held as

follows:-

"5. In the said judgment of K.C. Sareen (supra), this Court has held that it is only in very exceptional cases that the court should exercise such power of stay in matters arising out of the Act. The High Court has in the impugned order nowhere pointed out what is the exceptional fact which in its opinion required it to stay the conviction. The High Court also failed to note the direction of this Court that it has a duty to look at all aspects including ramification of keeping such conviction in abeyance. The High Court, in our opinion, has not taken into consideration any of

// 14 //

the above factors while slaying the conviction. It should also be noted that the view expressed by this Court in K.C. Sareen's case (supra) was subsequently approved followed by the judgment of this Court in Union of India v. Atar Singh and Anr.: (2003) 12 SCC 434."

In the case of State of Punjab -Vrs.- Deepak Mattu

reported in A.I.R. 2008 Supreme Court 35, it is held as

follows:-

"6. An order of suspension of conviction admittedly is not to be readily granted. The High Court in its order dated 11.1.2005 passed a judgment irrespective of conviction and sentence, only on two grounds;

(i) A long time may be taken to decide the appeal.

(ii) There are good points to argue.

7. While passing the said Order, the High Court did not assign any special reasons. Possible delay in disposal of the appeal and there are arguable points by itself may not be sufficient to grant suspension of a sentence. The High Court while passing the said Order merely noticed some points which could be raised in the appeal. The grounds so taken do not suggest that the Respondent was proceeded against by the State, mala fide or any bad faith...."

In the case of Shyam Narain Pandey -Vrs.- State of

U.P. reported in 2015 Criminal Law Journal 250, the

Hon'ble Supreme Court has held as follows:-

"8. It has been consistently held by this Court that unless there are exceptional circumstances, the appellate Court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are

// 15 //

those exceptional circumstances. However, there are certain indications in the Code of Criminal Procedure, 1973 itself as to which are those situations and a few indications are available in the judgments of this Court as to what are those circumstances.

9. It may be noticed that even for the suspension of the sentence, the Court has to record the reasons in writing under Section 389(1) Code of Criminal Procedure. Couple of provisos were added under Section 389(1) Code of Criminal Procedure pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate Court is inclined to consider release of a convict of such offences, the Public Prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the Court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the Court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice."

In the case of Harihar Mishra -Vrs.- Republic of India

reported in (2010) 47 Orissa Criminal Reports 236, it is

held as follows:-

"10. From the discussion as aforesaid, five broad

// 16 //

principles emerge, which, in my considered view, is a guide so far as exercise of discretion under Section 389(1), Code of Criminal Procedure in relation to stay/suspension of conviction is concerned. They may be called the 'Panchasheel' for exercise of discretion under Section 389(1), Code of Criminal Procedure for suspension of an order of conviction. They are -

(i) The Appellant, who seeks interference of the Appellate Court under Section 389(1), Code of Criminal Procedure so far as the order of conviction is concerned, must come with clean hands, and with due frankness and fairness specifically draw attention of the Appellate Court to the specific consequences he is going to suffer, if discretion by the Court is not exercised in his favour.

(ii) Such discretion by the Appellate Court may be exercised in favour of the appellant only in rare and exceptional cases depending upon the special facts of the case and not as a matter of course.

(iii) Such discretion may be exercised only where failure to stay the conviction would lead to injustice and irreversible consequences. The Court has to examine carefully on the basis of materials supplied and materials available on record as to whether the consequences sought to visit the appellant at present or on a future date is/are real.

(iv) While exercising the discretion, the Appellate Court has a duty to look at all the aspects including ramification of keeping the conviction in abeyance, and it is under further obligation to support its order for reasons to be recorded by it in writing.

(v) In case of public servants convicted of corruption charges, the discretion should not be exercised."

Learned counsel for the Vigilance Department placed

reliance in the case of Pruthwiraj Lenka (supra), wherein in

// 17 //

the factual scenario of that case, it was held as follows:-

"After carefully analyzing the finding of the learned trial Court, the submission made by the learned counsel for the respective parties and the evidence on record, at this stage, it cannot be said that it is a case of no evidence against the petitioner. Whether the evidence available on record would be sufficient to uphold the conviction of the petitioner under section 477-A of the Indian Penal Code or on the basis of points raised by the learned counsel for the petitioner particularly in view of his acquittal of other charges, the conviction under section 477-A of the Indian Penal Code would not be sustainable, is to be adjudicated at the final stage when the appeal would be heard on merit. In my humble view, giving finding thereon at this stage is likely to cause prejudice to either of the parties. For the limited purpose of ascertaining whether stay of order of conviction be granted or not, I find that the case is not a very exceptional one for keeping the conviction in abeyance. The consequential order of dismissal of the petitioner from his service having already been passed by the competent authority, the correctness of such order cannot be adjudicated in this petition. The possibility of reinstatement of the petitioner in service in case of staying the order of conviction is not a criteria to grant such interim relief."

Having regard for the aforesaid position of law, I am of

the humble view that the conclusion arrived at by the learned

trial Court while convicting the petitioner under section 7 of the

P.C. Act that the prosecution has succeeded in proving the

factum of demand made by the petitioner to P.W.1 on

11.06.2013 suffers from total non-application of mind as there is

// 18 //

neither any charge framed to that effect nor any evidence to

that effect was adduced by the prosecution during trial. Without

taking the pain of reappreciating the evidence on record at this

stage, it is apparent on the face of the record that the petitioner

stands for fair chances of acquittal and he has made out an

exceptional case which convinces this Court to exercise its

jurisdiction under section 389 of Cr.P.C.

Ergo, in view of the fallacy discussed above, I am of the

humble view that if the impugned judgment of conviction of the

petitioner is not stayed, by the time the appeal is taken up for

final hearing and decided, much water will be flown under the

bridge and the evil that would likely to befall on the petitioner in

the meantime would aggravate and it would be too late to set

the clock back. I am of the further view that the petitioner has

made out an exceptional case for stay/suspension of conviction.

It is one of such exceptional cases where the order of conviction

should be stayed/suspended otherwise it would cause

irreparable loss and injury coupled with irreversible

consequences resulting in serious miscarriage of justice to the

petitioner.

Accordingly, the impugned judgment and order of

conviction passed by the learned Special Judge, Vigilance,

Phulbani in G.R. Case No.117 of 2013 (V) (T.R. Case No.07 of

// 19 //

2014) against the appellant is stayed/suspended pending

disposal of the appeal.

The Interim Application is disposed of.

Issue urgent certified copy of this order be granted on

proper application.

                                                                (S.K. Sahoo)
                                                                   Judge




amit




               Digitally signed
       AMIT    by AMIT KUMAR
       KUMAR MOHANTY
               Date: 2023.07.07
       MOHANTY 17:52:01 +05'30'