Orissa High Court
973) vs State Of Odisha (Vigilance) ....... ... on 20 June, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1637 of 2024
(In the matter of an application under Section 482 of the Criminal Procedure Code,
1973)
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Durgesh Nandini Behera @ Parida ....... Petitioner
-Versus-
State of Odisha (Vigilance) ....... Opp. Party
For the Petitioner : Miss Deepali Mahapatra, Advocate
For the Opp. Party : Mr. Niranjan Maharana
Additional Standing Counsel (Vigilance)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
_________________________________________________________
Date of Hearing: 15.05.2024: Date of Judgment: 20.06.2024
_________________________________________________________
S.S. Mishra, J.
1. By way of this petition, the petitioner is seeking for quashing of the
order of cognizance dated 16.02.2019 passed by the learned Special Judge,
Special Court (Vigilance), Bhubaneswar in T.R. Case No.1/5 of 2021/2019
for the offences under Sections 13(2)/13(1)(e) of the P.C. Act read with
Section 109 of the I.P.C.
2. The husband of the petitioner is the principal accused in this case.
The petitioner is facing prosecution in the disproportionate assets case
arising out of the F.I.R. dated 31.12.2012 in Bhubaneswar Vigilance P.S.
Case No.67 of 2012 for the offences under Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988 (for short "the P.C.
Act") r/w Section 109 of the IPC.
3. After investigation, charge-sheet was filed on 29.12.2017 against
the petitioner and her husband for the offences under Section 13(2) read
with Section 13(1)(e) of the P.C. Act and Section 109 of the I.P.C.
4. The petitioner is the wife of the main accused in the said F.I.R.
She is admittedly a housewife. The allegations against the accused persons
are that the husband of the petitioner entered into Government service on
02.11.1988 as an OFS Officer and was posted at different places in Odisha.
His entire service period from 02.11.1988 to 08.05.2012 was taken as the
check period. The immovable properties which were found during search
includes one double storied building over Plot No.2101/3759, Khata
No.1556/276, area Ac.0.055 dec., Samantarapur, Bhubaneswar in the name
of the husband of the petitioner and the present petitioner to the valued at
Rs.23,55,600/- and the gold ornaments amounting to Rs.10,57,295/-, F.D.
amounting to Rs.2,50,000/- etc. It is further alleged that during check
period the husband of the petitioner came in possession of assets to the tune
of Rs.65,97,519/- as against his income of Rs.41,05,156/- and expenditure
of Rs.22,53,120/- which is disproportionate by Rs.47,45,483/- for which he
could not account for satisfactorily.
Therefore, after investigation charge-sheet was filed against the
principal accused-husband and wife-petitioner. The learned court below
vide its order dated 16.02.2019 took cognizance for offences under Section
13(2) read with Section 13(1)(e) of the P.C. Act, 1988 and under Section
109 of the I.P.C. Petitioner is aggrieved by the said cognizance order and
assails the same in the present proceeding.
5. Heard Miss Deepali Moahapatra, learned counsel for the petitioner
and Mr. Niranjan Maharana, learned Additional Standing Counsel for the
Vigilance Department.
6. Miss Deepali Mahapatra, learned counsel inter alia contended that
the double storied building constructed over Plot No.2101/3759, Khata
No.1556/276, mouza-Samantarapur, Bhubaneswar was originally
purchased by the mother of the petitioner by a registered sale deed dated
28.10.1994. Subsequently she applied for permission from the BDA for
construction of the building over the said plot which was approved vide
letter dated 06.10.1999 by the BDA. Thereafter double storied building was
constructed over the said plot by the mother of the petitioner. 18 years after
purchase of the land by the mother of the petitioner, by a registered gift
deed, the entire property i.e. the land and house constructed over the said
plot was gifted to the petitioner and her husband on 18.04.2012. These
being the Stridhan property of the petitioner, under no circumstances it can
be included as an asset of the petitioner and her husband out of their
income and cannot be factored into disproportionate asset.
7. The gold ornaments seized from the house of the petitioner belong
to the petitioner who got the same from her parents at the time of marriage
and the father of the petitioner was an Engineer working in a Company. So
far as Rs.2,50,000/- Fixed Deposit in the name of the petitioner is
concerned, that was the sale proceed of some gold ornaments. Except these
three items, there is no other material to connect the petitioner with the
commission of offence.
8. Miss Mahapatra further contended that under the aid of Section
107 of I.P.C., the present petitioner should not be prosecuted for the alleged
offence under Section 109 of the I.P.C. She has relied upon the judgment of
the Hon'ble Supreme Court in the case of Dimple Yadav v. Vishwanath
Chaturvedi and Others, reported in (2013) 2 SCC 1. She laid emphasis in
paragraphs-12 and 35 of the said judgment which read as under:
"12. As far as Smt Dimple Yadav is concerned, Mr Dwivedi
submitted that except for the fact that she is the wife of Akhilesh
Yadav, who had been a Member of Parliament since 2000, there is
no other ground to treat her as a public servant for the purposes of
inquiry by CBI. Mr Dwivedi submitted that Smt Dimple Yadav
carried on her own business in agricultural produce and had her
own income which had been wrongly clubbed by the writ petitioner
with the assets of Shri Akhilesh Yadav to bring her within the ambit
of the investigation by CBI under the provisions of the Prevention of
Corruption Act. It was further submitted that there is also no
allegation that Smt Dimple Yadav had, in any way, aided or abetted
any public servant to commit any act which could have attracted the
provisions of the Prevention of Corruption Act and including Smt
Dimple Yadav in the inquiry against those who could be said to be
public servants, amounts to harassment of a private individual
having a separate source of income in respect of which no offence
under the aforesaid Act could be made out. Mr Dwivedi contended
that the inquiry directed to be conducted by CBI in relation to the
assets held by Shri Akhilesh Yadav and Smt Dimple Yadav was
contrary to the procedure established by law and could not have
been ordered even upon invocation of powers under Article 142 of
the Constitution and was, therefore, liable to be set aside in review.
35. In addition, the submissions made qua Smt Dimple Yadav
merits consideration, since when the order under review was passed,
she had neither held any public office nor government post and was
essentially a private person notwithstanding her proximity to Shri
Akhilesh Yadav and Shri Mulayam Singh Yadav. On reconsideration
of her case, we are of the view that the investigation launched
against her on the issue of amassing wealth beyond her known
source of income, is liable to be dropped. The review petition, so far
as Smt Dimple Yadav is concerned is, accordingly, allowed and the
investigation conducted by CBI against her should, therefore, be
dropped."
9. Miss Mahapatra has attempted to draw parallel with the facts of
the Dimple Yadav (supra) case with the case of the present petitioner and
submitted that merely because she is the wife of the principal accused, she
cannot be foisted with the liability of acquiring disproportionate asset by
her husband. She also relied upon the judgment of this Court in CRLMC
No.2660 of 2023 (Smt. E. Swarnalata @ P. Swarnalata v. State of
Odisha). She has submitted that this Court has quashed the entire criminal
prosecution against the wife of the principal accused on the ground that the
wife cannot be prosecuted under Section 109 of I.P.C. and there is no
substantial material to make out a case of abetment against the wife as
provided under Section 107 of IPC. She submitted that even if the case of
the prosecution at this stage is taken at its face value, the petitioner cannot
be said to be an abettor of the alleged crime committed by her husband.
Therefore, she is seeking indulgence of this Court to quash the entire
proceeding.
10. Mr. Maharana, learned Additional Standing Counsel appearing for
the Vigilance Department submitted that this Court in the case of E.
Swarnalata @ P. Swarnalata (supra) has held that if the wife of the
principal accused does not put forth a separate defence to justify the
acquisition of the assets, she cannot be treated as an abettor. Mr. Maharana
has emphasized paragraph-7 of the said judgment which reads as under:
"7. Its also elucidated from the record that the assets in subject
are bought and also sold during the check period. However, the said
immovable properties are factored into the disproportionate assets
of the principal accused. The petitioner is not putting forth any
defense, calming that she has independently acquired the assets
alleged to have been in her name, the onus is on the main accused to
prove the source of the income from which the assets were acquired
in the name of his wife. But the prosecution is banking upon the
allegation of "Abetment" sans any material to prosecute the
petitioner. If the analogy of the prosecution is accepted to sustain the
criminal proceeding against the petitioner, then in that event, every
member of the family of the principal accused in whose name any
movable or immovable property was/is purchased by the principal
accused shall be liable to be prosecuted under section 109 IPC."
Therefore, the judgment of this Court in the case of E.
Swarnalata (supra) shall not come to the aid of the present petitioner,
because the present petitioner is trying to justify the acquisition of the
assets factored into the assets of the principal accused by putting forth her
independent defence.
Mr. Maharana has relied upon the judgment of the Coordinate
Bench passed in CRLMC No.1868 of 2021 [Sasmita Patra @ Patro v.
State of Odisha (Vigilance)] and submitted that the defence put forth by
the petitioner could only be tested in the trial and the prayer of the
petitioner to scuttle the trial at this stage is not tenable under law. He
submitted that it is already a settled proposition of law that High Court
should loathe in terminating the criminal prosecution at the stage of
cognizance or framing of charges by entering into computing or assessing
the acquisition of the property vis-à-vis the disproportionate asset acquired
by a public servant and purchased in the name of relatives. Mr. Maharana
relied upon paragraphs-7 and 8 of the order of Sasmita Patra @ Patro
(supra) which reads as under:
"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."
Mr. Maharana has also relied upon the order dated 08.04.2013
passed in CRLREV No.433 of 2012 (Sujata Nanda v. State of Orissa) to
buttress his argument. He has relied upon the following observation of this
Court in the said matter which reads as under:
"At the stage of framing of charge, the court is to form an
opinion on consideration of the police report and documents
therewith and after hearing the accused and the prosecution, if there
is ground for presuming that the accused has committed an offence
and in case the opinion is negative the accused is to be discharged
or else charge is to be framed against him. In any event only prima
facie case is to be found at the stage of framing of charge.
Although there is no direct material that the petitioner
requested her husband to purchase properties in her name out of his
alleged ill-gotten money, the fact that she has filed Income Tax
Returns without having any source of income and has allowed
acquisition of immovable properties in her name at different points
of time, for which she has no explanation, it must be held that she
has prima facie abetted the commission of offence under Section
13(2) read with Section 13(1)(e) of the P.C. Act by her husband by
lending her name as purchaser, which will prima facie amount to
abetment by intentional aid.
In the aforesaid circumstances, I find no infirmity in the
impugned order.
Accordingly, the CRLREV is dismissed."
11. On the basis of the aforementioned judgments and on the facts of
the present case, Mr. Maharana submitted that this petition has no merit
and this Court should not give indulgence to the petitioner at this stage.
12. I have considered the material placed before the Court and
weighed all the judgments cited at the Bar vis-à-vis the facts of the present
case. I am of the considered view that the Court below has rightly taken
cognizance for offence under Sections 13(2)/13(1)(e) of the P.C. Act read
with Section 109 of I.P.C. against the petitioner as there is prima facie
material came on record. Since the petitioner has put forth a specific
defence explaining the acquisition of movable and immovable assets
factored into the disproportionate assets acquired by her husband, the
probative value of her defence cannot be gone into by this Court at this
stage by virtually conducting a mini trial. The same can only be tested
during the trial. This Court while exercising jurisdiction under Section 482
Cr.P.C. should not scuttle the trial at this stage. Hence, the petition deserves
no merit.
13. Accordingly, the CRLMC is dismissed.
Digitally Signed S.S. Mishra
Designation: ADR-cum-Addl. Principal Secretary (Judge)
Reason: Authentication The High Court of Orissa, Cuttack
Location: High Court of Orissa, Cuttack th
Date: 10-Jul-2024 18:30:51 The 20 June, 2024/Asish Kumar Kar, ADR-cum-Addl. Principal Secretary
