2015 Supreme(Ori) 253

HIGH COURT OF ORISSA : CUTTACK
S.C. PARIJA, J.
Prakash Mishra – Petitioner
Versus
State of Odisha and others - Opp. Parties
CRLMP Nos. 1152 & 5020 OF 2014
Decided on : 19.06.2015

Headnote:1. PREVENTION OF CORRUPTION ACT, 1988 - Section 13(2) r/w Section 13(1)(d) and Section 120-B, IPC - FIR under - Quashing of - No materials have been produced before High Court to show that petitioners had any dishonest intention in sanctioning -100% advance towards purchase of cement and steel from the manufacturer/suppliers There being no violation of the existing procedure and practice, which were being followed by the Corporation much prior to the petitioners joining and there being no extravagant display of redundance or any proper or illegal exercise of power, no dishonest intention can be attributed to the petitioners in order to implicate them for the alleged offence u/s. 13(1)(d) of PC Act - In the preliminary enquiry conducted by the vigilance authorities no witnesses were examined and no statements were recorded during the enquiry - No notice was issued to the petitioners, providing them an opportunity to put forth their case - Nothing on record to show as to who considered the final report submitted by the enquiry officer and accepted the same, on the basis of which, approval was sought for from the State Government for registration of criminal case against the petitioners - Held, allegations made in the impugned FIR and the materials available in the case diary and even the purported incriminating materials pointed out by the learned counsel for the vigilance department do not constitute or disclose commission of any cognizable offence - Allowing continuance of the criminal proceeding against the present petitioners would be an abuse of the process of Court and result in serious miscarriage of justice - Criminal proceedings quashed.

       Vigilance authorities have proceeded in the matter with a predetermined agenda to implicate the petitioners, more specifically the writ petitioner Prakash Mishra, irrespective of whether any material is available to substantiate the allegations. The Enquiry Officer has conducted the preliminary enquiry in a most perfunctory manner, in brazen disregard of all established norms of justice and fair play. The manner in which the preliminary enquiry has been conducted and method adopted by the Enquiry Officer in concluding the enquiry post-haste, without even verifying the relevant documents and examining any witness, clearly goes to show that he was bent upon implicating the petitioners and thereby facilitate registration of the FIR against them. Hence, the entire action of the Vigilance authorities smacks of arbitrary and mala-fide exercise of power with the oblique motive to harass the petitioners and damage their reputation.

       2. JUDICIAL REVIEW - One is entitled to have and preserve one’s reputation and one also has a right to protect it - In case any authority in discharge of the duties fastened upon it under the law, travels it to the realm of personal reputation adversely affecting him, it must provide a chance to him to have a say in the matter In such circumstances, right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon statutorily recognised and violation of the same shall have to bear the scrutiny of judicial review.

       (Para 65)

       3. PENAL CODE, 1860 - Section 120-A - Criminal conspiracy - When two or more persons agree to do or cause to be done (i) an illegal act (ii) an act which is not legal by illegal means, such agreement is designated a criminal conspiracy - In the present case, no material has been produced by the vigilance authorities to substantiate the allegation of criminal conspiracy against the present petitioners.

       (Paras 53 & 54)

       4. CRIMINAL PROCEDURE CODE, 1973 - Section 482 - When a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court are as to whether the uncontroverted allegations as made prima facie establish the offence - The Section does not confer any new powers on the High Court - It only saves the inherent power which the Court possessed before the enactment of the Code - It envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give affect to an order under the Code (ii) to prevent abuse of the process of Court and (iii) to otherwise secure the ends of justice - Details stated.

       It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliauid alicui concedit, concedere videtur et id szne guo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of court, to allow any action which would result in injustice and prevent promotion of justice and in exercise of such powers, court would be justified to quash any proceeding if it finds that initiation continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report or the complaint, the court may examine the question of fact. When a report or complaint is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

       (Para 39)

       5. CONSTITUTION OF INDIA, 1950 Article 226 - Criminal Procedure Code, 1973 Section 482 Scope of exercise of power and the categories of cases where the High Court may exercise its power as held by apex Court stated in the case of Bhajanlal - It may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to given exhaustive list to myriad kind of cases wherein such power should be exercised stated.

       (1) Where the allegations made in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused.

       (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.

       (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

       (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.

       (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

       (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

       (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

       (Para 42)

       6. PREVENTION OF CORRUPTION ACT, 1988 - Section 13 - Criminal misconduct by a public servant - Such an offence of criminal misconduct by a public servant can be said to have been committed if in terms of Section 13(1)(d), a public servant abuses its position and obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding offence as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest - Sub-section (2) of Section 13 provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.

       (Para 47)