Binod Bihari Dash vs State Of Orissa (Vigilance) ....... ...
2025 Latest Caselaw 4576 Ori

Orissa High Court

Binod Bihari Dash vs State Of Orissa (Vigilance) ....... ... on 4 March, 2025

                   THE HIGH COURT OF ORISSA AT CUTTACK

                                CRLREV No.584 of 2022

          (In the matter of an application under Section 397 read with Section 401
          of the Criminal Procedure Code, 1973)

          Binod Bihari Dash               .......                   Petitioner

                                        -Versus-

          State of Orissa (Vigilance)     .......                 Opposite Party


                For the Petitioner : Mr. Devashis Panda, Advocate
                                     Mr. Amit Pattnaik, Advocate

                For the Opp. Party : Mr. Sangram Das,
                                     Standing Counsel (Vigilance)

                                        CORAM:

          THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

          Date of Hearing: 17.09.2024        : Date of Judgment: 04.03.2025

S.S. Mishra, J. The petitioner is aggrieved by the order dated 18.10.2022 passed

          by the learned Special Judge (Vigilance), Balangir in CTR Case No.13

          of 2018, whereby his application under Section 239 of the Cr. P.C.

          praying for discharge from the case has been turned down. During

          pendency of the present petition learned trial court by its order dated
 20.12.2022 annexed as Annexure-1/1 to I.A. to the consolidated petition

framed the charges. Therefore, the petitioner converted the CRLMC to

that of Revision Petition and challenged the charge order as well.

2. The F.I.R. being CID CB, Odisha, Cuttack P.S. Case No.18 of 2014

was registered on 01.09.2014, inter alia, alleging as that on 04.02.2013,

the Collector of Bolangir formed a Recruitment Committee for

overseeing exams for various posts. The committee, chaired by the

Collector, included key officials like Miss Aneeta Panda (Dy. Collector)

as Convener. The Secretary of the Board of Secondary Education,

Odisha prepared the question papers, which were stored in the District

Treasury. The written exam for R.I., A.R.I., and Amin posts was

conducted on 09.06.2013 at two centers, with Sub-Collectors as Center

Superintendents. 335 applicants appeared in the written examination for

R.I., and 795 for A.R.I. & Amin. After the exam, the papers were kept in

the Collector's custody, with Niranjan Tripathy, Head Clerk, in charge of

the room. The computer practical test was conducted on 12.06.2013 and

13.06.2013

, with various officials overseeing the valuation process.

However, no coding system was applied to evaluate the papers. During

the inquiry, it was found that many arithmetic papers had the tampered

marks, particularly where candidates secured 100 marks, such as S.C.

Nayak, N. Pradhan, R.Putel, R.K. Bagh, and S. Mallik. Additionally one

S. Kalsai's marks were altered from 2 to 93. Tampering was also found

in the tick marks in the Question-cum-Answer booklets, indicating

significant manipulation in the examination process.

3. The matter was investigated by the CB, CID and the charge sheet was

filed on 31.03.2018 for the alleged commission of the offences

punishable under Sections 13(2) r/w Section 13(1)(d) of the P.C. Act r/w

Sections- 409/468/467/471/120-B of the IPC against as many as 45

accused persons. The present petitioner has been arrayed as the accused

No.4 in the chargesheet. The precise allegation against the present

petitioner is that, he has been a party to the manipulation being done by

the principal accused Debaraj Mishra, the then Collector, Balangir.

4. The petitioner moved an application under Section 239 of the Cr.P.C.

seeking discharge from the offences on the ground that, even if the

prosecution version as has been emanating from the charge sheet un-

controvertedly taken at its face value, no case under any provisions of

law against the petitioner is made out, which having been rejected on

18.10.2022, he preferred the present revision. Against that order and

since during pendency of the Criminal Revision, learned trial court by

order dated 20.12.2022 framed charges against the petitioner and others,

I.A. No.138 of 2023 was filed for amendment of the revision and

bringing the order framing charges into the record which was allowed on

02.07.2024.

5. The petitioner has urged various points in his application. Perusal of

the application indicates that the application was an exhaustive one. The

petitioner attempted to demonstrate from the record that none of the

offences are made out against him. While dealing with the said

application, the learned trial Court by the impugned order dated

18.10.2022, rejected the same without adverting to the contentions raised

by the petitioner and mechanically dismissed the same. The only

reasoning given by the learned Court below is reflecting in the following

paragraph of the impugned order, which reads thus:

"Perused the case record. It is found that charge sheet has been placed against the above accused persons and other U/s 13(2) r/w 13(1)(d) of the P.C. Act read with Sections 465/471/477-A/120-B of

the IPC. The F.I.R., charge sheet, statement of witnesses recorded U/s 161 Cr.P.C. and other materials including documents filed in this case would go to show that the accused Collector namely Debaraj Mishra and other accused persons namely Anita Panda, B.B.Dash, L.Mundri, R.N.Suna and B.Maharana and others conducted the recruitment examination for some posts of R.I., ARI and Amins and in this process they have adopted corrupt practices and further manipulated and forged marks and documents and thereby facilitated underserved candidates for the post as aforesaid. The materials available on record prima facie reveals sufficient grounds regarding commission of the aforesaid offences by the above accused persons. The grounds for discharge shown by the respective accused persons appear to be their defence plea which can only be answered and settled in a regular trial after taking evidence and not at the very outset of hearing, particularly at the stage of framing of charge. In view of the above, it appears that the aforesaid applications filed by the respective accused persons do not have any merit and therefore, stand rejected. Put up on 11.11.2022 for framing of charge."

6. Mr. Devashis Panda, learned counsel for the petitioner has taken me

to the charge sheet to point out that the petitioner, who alleged to have

evaluated the answer sheets of the "Odia" subject is admittedly not

manipulated and is not under the scanner rather it is the Arithmetic,

Computer and G.K. paper are allegedly manipulated. He has also pointed

out that it is the then Collector, who has compelled the petitioner to sign

on the dotted lines. This is also reflecting from the charge sheet. He has

submitted that the essential ingredients to constitute the offence of

forgery are that one must have sign, seal or execute the documents or

any part of it dishonestly or fraudulently with an intention of causing it

to be believed that such document is made by a person in authority or

one who without lawful authority dishonestly or fraudulently by

cancellation or otherwise alters a document or an electronic record in any

material part thereof. In the present case, so far as the petitioner is

concerned, there is no direct role ascribed to him alleging his

involvement. Rather, on the contrary, the evidence so collected by the

I.O. makes out no case against the petitioner. Similarly, none of the

ingredients for criminal conspiracy is also made out, as there is no

evidence of meeting of mind preceding the crime. On the contrary, the

I.O. has collected the evidence that the petitioner had no clue about the

fact that he was the part of the committee. Mr. Panda, learned counsel

has relied upon the Judgment of the Hon'ble Supreme Court in the case

of Amit Kapoor vs. Ramesh Chander reported in (2012) 9 SCC 460 and

submitted that at the time of framing of the charges, the Court is not

concerned with the proof and upon careful perusal of the materials

placed there, strong suspicion in the Court's mind that the accused has

committed the offence which if put to trial, could prove him guilty, the

Court would be justified in proceeding with the trial by framing the

charge. However, in the present case, taking into the prosecution story,

even the scope of suspicion against the petitioner does not arise.

7. Similarly, Mr. Panda, learned counsel for the petitioner relied upon

the judgment of the Hon'ble Supreme Court M.E. Shivalingamurthy vs.

Central Bureau of Investigation, Bengaluru, reported in (2020) 2 SCC

768. By relying upon the earlier judgment in the case of P. Vijayan vs.

State of Kerala and another, reported in (2010) 2 SCC 398, the Hon'ble

Supreme Court has discerned the following principles:

"17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused."

Relying upon the aforementioned settled principle of law and by

reading out the allegations made by the prosecution in the charge sheet,

Mr. Panda, learned counsel for the petitioner submits that, the learned

trial Court has clearly failed in appreciating the aforementioned

contentions raised by the learned counsel for the petitioner seeking

discharge as well as charges framed against the petitioner vide order

dated 20.12.2022, which according to the learned counsel is not

sustainable in law and facts.

8. Mr. Das, learned Standing Counsel for the opposite party-Vigilance

Department, on the contrary, submitted that the learned defence counsel

has been attempting to persuade this Court to appreciate the entire

material placed on record through the charge sheet, which is not

permissible at this stage. The allegation made in the charge sheet proves

the complicity of the petitioner. Therefore, at this stage, evaluating the

entire material form part of the charge sheet and discharging the

petitioner may not be coming under the jurisdiction of this Court under

Section 482 Cr. P.C. and there was no error in framing charges against

the petitioner after his petition for discharge was rejected.

9. I have taken into consideration the rival submissions made by both

the parties at the Bar and in the light of the submissions, I attempted to

venture into the allegation made by the prosecution in the charge sheet

against the petitioner. The relevant part of the charge sheet connecting to

the petitioner is necessary to be reproduced here below:

"As per record available it is found that again a Recruitment Committee was constituted vide Order No.321, dt-04.02.2013, under the signature of Sri Debaraj Mishra. In this committee Sri Mishra, Collector was the Chairman and (1) Miss. Aneeta Panda, the then Deputy Collector, Revenue Section, Collectorate, Bolangir, (2) Sri Binod Bihari Dash, the then BDO, Sadar Block, Bolangir, (3) Sri Raghunath Mundary, the then BDO, Puintala Block (4) Sri Raghunath Suna, the then BDO, Saintala block and (5) the DWO, Bolangir were the members. Records also revealed that this order of the Collector has been communicated to all the members vide Memo No. 322/Estt., dtd. 04.02.2013. But none of the above 05 members agreed to have received memo No.322/Estt., dtd. 04.02.2013. Even they denied having any knowledge about formation of such committee till 21.06.2013 evening. The concern files also revealed that the order has been passed directly by the Collector. No note sheet has been generated by the Dealing Assistant, nor has it been routed through the Head Clerk and the Establishment Officer. Further, the seized "Letter Issue Register" of Establishment section revealed that the issue numbers 321 (Order of formation of Recruitment Committee) and 322 (memo) have been inserted at page 46 latter on through manipulation. The seized Peon Book also proved that no such letter has been served upon the members. From

the above it is clearly proved that Order No.321 has been manufactured latter on to threw responsibility on others. ...

... Further order vide No.857/Res. Dt-10.06.2013 was passed by Sri Mishra, Collector, Bolangir in which Sri Rathunath Mundary, BDO, Puintala Block, Sri Ripunath Suna, BDO, Saintala block and Sri Binod Bihari Dash, BDO, Sadar Block were directed to act as "officer for valuation" and the date of valuation was fixed from 14.06.2013 to 16.06.2013. So also 11 Ministerial staffs were deputed to assist in valuation work. No specific instruction/direction/order was passed by the Collector in those orders to the ministerial staffs to evaluate the answer sheets. Due to Raja Sankranti on 14.06.2013 no evaluation work was done.

On 15.06.2013 at about 8 AM when the deputed 03 OAS officers and ministerial staff arrived for evaluation work they found that all the answer sheets, which were received in sealed covers, were in open condition. Even the sealing materials were not available which proved that the sealed answer pockets have been opened much before evaluation date. Sri Mishra, Collecor directed 03 OAS officers to evaluated the "Odia" papers only. When both the OAS officers were evaluating the Odia papers, the answer sheet of Arithmetic, General Awareness and computer theory were supplied to the ministerial staffs and they started evaluating the same with the help of the model answer sheet (Scoring Key), provided by the Collector. While evaluating the answer sheets the OAS officers complained as to when coding system was provided in the question paper, why the same has not been done so. On this the accused Collector expressed his displeasure and told that "this is none of your business". Further the ministerial staffs also detected massive manipulations in the Arithmetic, GK and computer theory papers. They found most of the papers have been corrected latter on. The wrong tick marks available in the answer sheets have been corrected massively and tick marks in the right boxes are available against those wrong answers. So the ministerial staffs immediately brought this fact to the knowledge of the accused Collector who was present there inside the hall. On this Sri Mishra, Collector directed them to allow mark even if manipulation is there in the Answer Sheet. Sri Nlranjan Tripathy, Head Clerk also intervened into the matter and also directed the ministerial staffs to allow marks if tick marks are available on the right answer boxes, even if the same has

been corrected. Accordingly they awarded marks on all papers including the manipulated papers. After about half an hour, Collector asked the OAS officers to sign on those answer sheets which are being evaluated by the Ministerial staffs. As the OAS officers denied, Sri Mishra, Collector verbally directed the ministerial staff to sign on the papers which are evaluated by them. Some of the Answer Sheets were also evaluated by Sri Niranjan Tripathy, Head Clerk and Sri Arabinda Khamari, PSO to Collector. As per direction of Sri Tripathy, in presence of the Collector, Miss Sikharani Bhoi, Miss Jindiarani Barik and Miss Soudamini Sahu put their signature on those answer sheets, though they had not evaluated the same. Sri Niranjan Tripathy and Sri Arabinda Khamari, PSO to Collector have evaluated most of the GK answer sheets and those three lady Jr. clerks signed those papers.

... 8. That actually a Selection Committee should have been formed and its members should have been allowed to be involved in each stages of recruitment. They should have been allowed to prepare or remain present at the time of preparation of the general tabulation sheet, category wise tabulation sheet, category wise merit/selection list etc. Before giving final touch to the selection list they should have re-checked all documents of the selected candidates starting from their application forms and they the final proceeding should have been prepared by them after discussing tit bit of the process with the Collector-cum-Chairman.

... 14. Letter No.321/Estt. Dt. 04.02.2013 under the signature of accused Collector related to formation of Recruitment Committee is found to be manipulated. Further its memo vide No.322/Estt. Dt. 04.02.2013 has not been served upon the members. This order has been prepared latter on to threw mud on the head of the members of Recruitment Committee. This type of behavior on the part of one Collector clearly revealed that he was fully aware of the alleged offence committed in the recruitment process. ...

... 18. Statements of all the evaluators and the ministerial staffs well proved that the Collector himself was present throughout the evaluation which was conducted in the hall of EOC where the almirah, containing the answer sheet in sealed pockets, was kept. When the three evaluators (OAS officers) objected as to why coding has not been done, the Collector has expressed his displeasure on

them and he directed them to simply evaluate, as coding is none of their business. It is the chairman who is responsible for everything."

10. Reading of the aforementioned portions of the charge sheet makes it

abundantly clear that it is the Collector, the principal accused, may be

responsible for commission of the offences of manipulation of the

examination process. The petitioner, who alleged to have evaluated the

Odia paper is not found to have manipulated those answer scripts. It has

also come on record that although the petitioner was a member of the

Evaluation Committee, but the committee was formed by the then

Collector behind the back of the petitioner and it was not even

communicated to them. It has also come on record that the petitioner has

objected to the non-coding of the answer sheets to which the then

Collector has asked the evaluator to carry on his instruction being a

direction and has also said that this is none of their business to question

his authority. The Collector appears to have forced the petitioner and

other evaluators to go ahead with the evaluation process even if the

petitioner and the other attending Officers involved in the evaluation

process at the threshold of the manipulation. It has also come on record

that the then Collector has manipulated the letter constituting the

recruitment committee (to which the present petitioner is one of the

members) only to get out of the responsibility and unnecessarily roped in

the present petitioner and other officers.

11. Even after having found the aforementioned facts on record, the

I.O. went ahead and filed the charge sheet against the then Collector as

well as all the members of the so-called Recruitment Committee. The

other materials are also available on record which needs to be delved

upon so as to ascertain as to whether the present petitioner is indeed had

any complicity in the entire case. The petitioner has very categorically

highlighted all the points in his application under Section 227/239 of the

Cr.P.C. seeking discharge. Surprisingly, the learned Trial Court has not

dealt with any of the contentions raised by the petitioner, rather passed a

vague order without adverting to the materials available on record and

later on framed charges against the petitioner. Therefore, it has become

imperative for this Court to relegate the matter to the trial Court to delve

upon all the issues raised by the petitioner in his application for

discharge and the point urged by the petitioner before this Court.

12. Accordingly, the CRLREV is allowed and the impugned order

dated 18.10.2022 and the consequential order dated 20.12.2022 passed

by the learned Special Judge (Vigilance), Balangir in CTR Case No.13

of 2018 are quashed qua the petitioner. The matter is remitted back to the

trial Court. The trial Court is directed to decide the application of the

petitioner seeking discharge afresh on its own merit without being

influenced by the observations made by this Court.

13. The CRLREV is disposed of.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 4th of March, 2025/ Subhasis Mohanty

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack.

Date: 11-Mar-2025 10:03:08