Orissa High Court
Tapas Kumar Sarangi vs State Of Odisha (Vigilance) ....... ... on 29 January, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.257 of 2022
(In the matter of an application under Section 401 r/w Section 397 of the
Code of Criminal Procedure, 1973)
Tapas Kumar Sarangi ....... Petitioner
-Versus-
State of Odisha (Vigilance) ....... Opposite Party
For the Petitioner : Mr. Uma Charan Mishra, Advocate
For the Opp. Party : Mr. Sangram Das
Standing Counsel (Vigilance Department)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 03.01.2025 : Date of Judgment: 29.01.2025
S.S. Mishra, J. The petitioner is aggrieved by the order dated 05.04.2022 passed
by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.30 of
2017, whereby his application for discharge has been turned down.
2. The petitioner is one of the accused in the F.I.R. in connection with
Cuttack Vigilance P.S. Case No.35 of 2014 registered for the alleged
commission of the offences punishable under Sections 13(2) r/w Section
13(1)(d) of the P.C. Act and Section 120-B of the IPC.
3. After the investigation, the charge sheet has been filed for the
alleged commission of the offences punishable under Sections 13(2) r/w
Section 13(1)(d) of the P.C. Act and Section 120-B of the IPC.
4. The allegation against the petitioner is that, when the accused was
working as Welfare Extension Officer in Kujang Block, District-
Jagatsinghpur, he attended a committee constituted by the BDO, Kujang
Block for holding a lottery to distribute 46 nos. of shop rooms
constructed at Paradeepgarh under the Provision of Urban Amenities in
Rural Areas (PURA Scheme) on 07.12.2012. Out of 71 valid
applications, it is alleged that, one Amulya Mohanty, husband of Smt.
Sarojini Mohanty, Panchayat Samiti Member-cum-lottery committee
member, was allotted Room No.14. Similarly, one Sanjay Kumar
Behera, husband of Smt. Sasmita Behera, Sarpanch of Paradeepgarh
Grama Panchayat-cum-lottery committee member was allotted Room
Page 2 of 9
No.15 and Smt. Kamala Behera, mother-in-law of Smt. Sasmita Behera
was allotted Room No.30. It is further alleged in the charge sheet that, as
per the stipulated guidelines, first priority should have been given to the
applicants belonging to the SC/ST community and SHG, but such
criteria was overlooked by the committee members with ulterior motive
to give benefit to their own people. It is also alleged that a joint enquiry
committee constituted by the DRDA, conducted an enquiry into the
matter and observed that the selection committee should have been
constituted in a transparent manner, a senior officer should have been the
Chairperson of the committee in place of the BDO, Kujang, the family
members of the applicants should not have been taken as lottery team
members, the BDO, Kujang has not followed the proper procedure to
select the beneficiaries and the committee showed favoritism to some of
its members by allotment of shop rooms to their kith and kin. Thus, the
selection procedure appeared to be improper. Hence, the F.I.R.
5. The petitioner moved an application under Section 239 of the
Cr.P.C. seeking discharge from the case. The said application was turned
down by the impugned order dated 05.04.2022. When the matter was
Page 3 of 9
taken up for hearing by this Court on 14.07.2022, the following order
was passed:
"3. Learned Standing Counsel (Vigilance) is directed to examine the
records under which the decision was taken to allot shop-rooms to the
allottees and find out the specific role of the Petitioner in the decision
making process, and accordingly file a report in this Court indicating
the role played by the petitioner."
6. Pursuant to the aforementioned order, the status report dated
01.08.2024 has been filed, inter alia, stating as under:
"The investigation of the case revealed that during the
incumbency of Sri Bishnu Charan Sahoo, Ex-Sarpanch of Paradeepgarh
G.P had constructed total 16 nos. of shop room at Biju Pattanaik Market
Complex, Paradeepgarh from MLA LAD fund of year 2003-04. There
was no Guideline for distribution of Shop room constructed under MLA
LAD etc. in year 2005, i.e. at the time of distribution of 16 nos. of shop
houses in Biju Pattanaik Market Complex and the accused person noted
in Col. 13 were not working as such during the period. Thereafter,
construction of 46 nos. of shop room were taken up at Paradeepgarh in
the same campus of Biju Pattanaik Market Complex, by Kujang Block
under PURA Scheme (Provision of Urban Amenities in Rural Areas)
Page 4 of 9
Scheme of year 2006-07 which was completed in year 2010-11 during
incumbency of Sri Rajkishore Panda, OAS, BDO, Kujang Block. Smt.
Sasmita Behera was working as Sarpanch, Paradeepgarh G.P. during that
period."
7. Mr. Mishra, learned counsel for the petitioner submitted that even if
the entire case of the prosecution is accepted at its face, no case is made
out against the petitioner. He further contended that, perusal of the
charge sheet as well as the status report reveals that the petitioner has
only participated in the meeting convened by his superior officer i.e. the
B.D.O. Neither he derived any advantage from the allotment process nor
any of his kith and kin have been allotted any shop room. There is no
pecuniary loss caused to the exchequer. Mr. Mishra further submitted
that neither any beneficiary of the Scheme nor any person, who is
aggrieved by not getting the shop room, has come forward to complaint.
Rather, an individual who has nothing to do with the entire transaction
being a practicing advocate has filed the complaint on the basis of which
the entire criminal law has been set in motion against him.
Page 5 of 9
8. Mr. Das, learned Standing Counsel for the Vigilance, on the other
hand, has vehemently opposed the prayer made by the learned counsel
for the petitioner on the ground that the factual dispute is writ large in
the present case, needs to be thrashed out in the trial alone. At this stage,
this Court, while deciding as to whether the charge against the petitioner
is made out or not, need not venture into the factual dispute by
appreciating the statement of the witnesses recorded under Section 161
of the Cr. P.C.
9. I have carefully gone through the entire record and considered the
submissions made by the learned counsels for the respective parties. It is
evident from the record that, even if the allegation of the prosecution is
admitted at its face value, no offence as such is made out against the
present petitioner. The petitioner is one of the members of the committee
constituted by the BDO. No benefit has been derived by the petitioner
from the entire process and no financial irregularity has been imputed
against him.
10. Perusal of the charge sheet reveals that it is the kith and kin of the
Ex-Sarpanch/Ex-Panchayat Samiti members have been allotted the shop
Page 6 of 9
rooms. In absence of any specific allegation against the petitioner
regarding any financial misappropriation or the benefit derived from the
entire transaction, mere participation in the meeting convened by the
BDO will not attract the mens rea. Save and except the allegation that he
was present in the meeting, no other allegation has been attributed to the
petitioner.
11. Mr. Mishra, to buttress his argument has relied upon the judgment
of this Court in the case of Aswini Kumar Choudhury vs. State of
Odisha (Vigilance Deptt.), reported in (2019) 04 OHC CK 0030 by
emphasizing the following paragraph:
"10. ...... Whenever such allegation of conspiracy is made, it is for the
prosecution to show the nature of the agreement and the unlawful
object set forth for being achieved and then with regard to the
achievement of the same, either in whole or in part remaining on the
midway for being so detected, as the case may be; furthermore,
indicating as to when, where and in what manner such agreement or
understanding was arrived at."
Mr. Mishra, learned counsel submits that for the purpose of
bringing home the charge under Section 120-B of the IPC, specific
allegation needs to be made in the F.I.R. and the charge sheet. There is
no evidence brought on the record by the prosecution regarding the
Page 7 of 9
meeting of mind preceding the crime. The petitioner being a subordinate
officer, under the command of his superior has participated in the
meeting. The committee has decided to allot the shops by violating the
guideline. In the absence of any material forming part of the chargesheet
barring a solitary bald statement that the present petitioner has
participated in the meeting, it would not be possible for the prosecution
to bring home any charge against the petitioner. Going by the well
settled principle of criminal law, the onus lies on the prosecution to
prove the charge against the accused beyond all reasonable doubt, from
the nature of materials available on record the prosecution definitely
cannot establish the case against the petitioner and secure conviction.
Hence, on the basis of the material available on record, subjecting
the petitioner to the rigors of trial is destined to be a futile exercise and
would serve no purpose. In these fact scenario of the case, the judgment
of Hon'ble Supreme Court in the cases of Gian Singh v. State of
Punjab and another, reported in 2012 (10) SCC 303;
B.S. Joshi & others v. State of Haryana & another,
reported in (2003) 4 SCC 675 and Madhavrao Jiwaji Rao
Page 8 of 9
Scindia & another v. Sambhajirao Chandrojirao Angre
and others, reported in AIR 1988 SC 709 are well applicable
and hence the present matter deserves merit. Accordingly, the petition is
allowed and as a sequitur the charge sheet qua the present petition is
quashed.
12. Accordingly, the CRLREV is allowed and disposed of.
......................
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
The 29th January,2025/Subhasis Mohanty, Personal Assistant
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 31-Jan-2025 19:29:08
