Orissa High Court
State Of Orissa vs Bijay Chandra Choudhury ... Opposite ... on 19 February, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.44 of 2012 & I.A. No. 59 of 2024
(In the matter of an application Under Sections 378(1)
& (2) CrPC).
State of Orissa ... Petitioner
-versus-
Bijay Chandra Choudhury ... Opposite Party
For Petitioner : Mr. S. Das, Standing
Counsel(Vigilance)
For Opposite Party : Mr. A. Mohanta, Advocate
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING & JUDGMENT:19.02.2025(ORAL)
G. Satapathy, J.
1. This application U/Ss. 378(1) & (2) of the
CrPC by the State in Vigilance Department seeks for
grant of leave to appeal against the judgment dated
30.09.2011 passed by learned Special Judge(Vigilance),
Jeypore in G.R. Case No. 45 of 1998(V) acquitting the
OP of charges 13(1)(e) of the Prevention of Corruption
Act, 1988 (In short "the Act").
Since this application for grant of leave to
appeal was filed with a delay of 78 days as reported by
the Stamp Reporter, the Petitioner in addition to the
leave petition has filed an application U/S. 5 of the
Limitation Act, 1963 in IA No. 59 of 2024 for
condonation of delay of the aforesaid period and
accordingly, both the special leave petition and IA are
heard simultaneously and disposed of by this order.
2. Facts in precise are that on the allegation
of amassing assets disproportionate to known source of
his income, the State Vigilance Department conducted
a raid in the residence of the OP on 11.09.1998 after
obtaining such warrant from the learned CJM, Ganjam.
Finding assets disproportionate to the known source of
income of the OP subsequent to the raid, an FIR was
registered against the OP for being found to have
disproportionate assets and the matter was accordingly
investigated in the course of which, the OP was found
to have been appointed as L.D. Clerk on 24.05.1973
and subsequently, promoted to the rank of IPO in the
industries Department of Government of Orissa on
01.07.1992.
After due investigation, the Vigilance
Department filed a charge sheet against the OP for
amassing assets disproportionate to the known source
of his income to the tune of Rs. 9,94,026.82/- for the
relevant check period from 01.01.1993 to 11.09.1998
and accordingly, the OP was made to face the trial in
the Court of Special Judge, Jeypore in G.R. Case No. 45
of 1998(V) for being charged for commission of offence
punishable U/S. 13(1)(e) of the Act for acquiring
disproportionate assets.
3. In the course of trial, the prosecution
examined altogether 25 witnesses and relied upon
documents under Ext. 1 to 44 as against oral evidence
of 16 witnesses as well as documentary evidence under
Exts. A to N by the defence. The plea of the OP-accused
was denial simplicitor and false implication in addition
to the plea that relevant figures have been deliberately
taken for a shorter period of five years only to implicate
him and his entire income and expenditure has not
been taken into account.
4. After appreciating the evidence on record
upon hearing the parties, the learned Special Judge by
the impugned judgment acquitted the OP-accused.
Being aggrieved, the State in Vigilance Department has
preferred this application for grant of special leave.
5. In the course of hearing, Mr.Sangram Das,
learned Standing Counsel forcefully submits that
although there is a delay of 78 days as reported by the
Office, but fact remains that the delay was neither
intentional nor deliberate, rather the delay has
occasioned because the concerned file was misplaced in
the Office and thereby, the Department was prevented
by sufficient cause for not preferring the petition in
time. On merit, Mr. Das points out that the learned trial
Court without any evidence has in fact been swayed
away by extending the benefit of Rs. 90,000/- towards
agricultural income and Rs. 45,000/- towards drawal of
GPF as income which was erroneous and should not
have impacted the learned trial Court while recording
the judgment of acquittal inasmuch as such fact being
not on the basis of any legally admissible evidence, but
the impugned judgment passed by the learned trial
Court being actuated with perversity needs to be
interfered. Accordingly, Mr. Das prays to grant leave to
the Department to prefer an appeal by condoning the
delay of 78 days.
5.1. On the contrary, Mr.Asuthosh Mohanta,
learned counsel for the OP-accused submits that not
only the department was guilty of delay of 78 days in
preferring the appeal, but also it has not taken any
steps for long 12 years in filing any application for
condonation of delay and that too, when the matter
was listed at the instance of OP-accused and pointed
out thereafter, the Department has taken steps to
condone the delay, but in fact, the grounds taken in the
petition for condonation of delay merits no
consideration. In summing up his argument, Mr.
Mohanta prays to dismiss the CRLLP by not condoning
the delay.
6. After having considered the rival
submissions upon perusal of record, since the leave to
appeal has been filed with a delay of 78 days as
reported by the Office, this Court at the threshold
confines itself to the petition for condonation of delay
as filed by the Department. It is not in dispute that the
Department takes the plea of "missing of file" as the
main ground for condonation of delay, but fact remains
that when the file was misplaced, was not it the duty of
the State to reconstruct the file in time to prefer an
appeal because when an appeal against acquittal has
been filed with a delay, certain rights accrued in favour
of the accused which should not be taken lightly to
defeat such right of the accused without knowing its
consequence, however, the Court has to adopt a
pragmatic approach in dealing with such petition for
condonation of delay for grant of special leave to appeal
to the Department in a criminal case.
7. It is an admitted fact that the appeal was
filed in the year 2012, but the petition for condonation
of delay was only filed in the year 2024 which is evident
from the application filed by the Department for
condonation of delay in IA No. 59 of 2024. True it is
that delay may be attributable to missing of file, but
when the matter is to be considered in a criminal case
prescribing punishment for commission of offence, it
should be accordingly, considered balancing the right of
the accused who have been found acquitted by the
learned Court concerned. Further, delay of 78 days is
not a small delay because the right of the accused
cannot be ignored which has already been accrued. In
the aforesaid backdrop, when the delay of 78 days is
considered on the admitted facts of missing of file
which is the ground taken by the Vigilance Department,
this Court does not find any cogent reason to condone
the delay since the ground appears to be not genuine,
however, at the same time, this Court also wants to
examine the impugned judgment on merit because
unless there is some merit in the impugned judgment,
the petition for condonation of delay requires no
consideration on the mere assertion that the appeal
was filed with a delay of some days due to missing of
file inasmuch as the aforesaid observation of this Court
is only based on the fact that meritorious case should
not be thrown at the threshold.
8. While examining the matter on merit, this
Court has the privilege to go through the impugned
judgment passed by the learned Special Judge
recording acquittal of the OP-accused, but the two main
grounds which have been taken by the Vigilance
Department to challenge the impugned judgment of
acquittal are the agricultural income and the drawal of
GPF of the OP-accused, however, fact remains that the
drawal of GPF by the accused is an admitted fact which
cannot be denied and the learned trial Court has rightly
taken it towards the income of the accused while
computing the disproportionate assets of the accused.
At the same time, there is of course no specific
evidence available with regard to agricultural income of
the accused, but it is a fact that the OP-accused has
some landed property which has not been rebutted by
the Department and, therefore, by taking into the
standard of proof as required in a criminal case, this
Court considers that the learned trial Court has rightly
taken the agricultural income of the OP-accused in
computing the disproportionate assets. This Court,
therefore, does not consider any perversity in the
impugned judgment. Consequently, the delay as
occasioned in this case as well as CRLLP merits no
consideration.
9. In the result, the CRLLP stands dismissed
on contest, but in the circumstance, there is no order
as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 19th day of February, 2025/Priyajit
Location: HIGH COURT OF ORISSA
