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2018 Supreme(Ori) 689
IN THE HIGH COURT OF ORISSA
S. K. SAHOO, J.
CRLMC No. 42 of 2012
(Date of Judgment : 16.08.2018)
An application under Section 482 of the Code of Criminal Procedure, 1973 in connection with V.G.R. Case No.39 of 2001 pending on the file of Chief Judicial Magistrate, Cuttack.
Agani Charan Behera … Petitioner
Versus
State of Orissa … Opp. party
For Petitioner: Mr. Aditya Ku. Mohapatra H.K. Ratsingh
For Opp. Party : Mr. Prasanna Ku. Pani Addl. Standing Counsel (Vigilance Department)
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 482 - Charges u/s. 406/120-B, IPC -Quashing of - Discussing the facts, contention and evidences held, no ground for presuming that the petitioner has committed offence of criminal breach of trust - There are no surrounding circumstances or any conduct of the petitioner from which it can be inferred that he was a party to criminal conspiracy and therefore, the order of rejection of the discharge petition filed by the petitioner was neither proper nor justified - Learned Trial Court has committed illegality in framing charge against the petitioner u/ss. 406/120-B, IPC - Proceedings quashed.
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 239 - When the Court considers the charge against the accused to be groundless which means without any basis or foundation, the accused can be discharged u/s. 239 of Cr.P.C. - Object of discharge is to save the accused from unnecessary and prolonged harassment and therefore, the mechanical approach at the stage of consideration of discharge petition by the Trial Judge is impermissible as the next step i.e. the framing of charges substantially under the Section, it is not necessary even for the accused to file a petition for discharge.
Bereft of the fact whether discharge petition is filed or not, the learned trial Judge is not absolved of his duty at that stage to decide whether the charge against the accused to be groundless. For arriving at such a conclusion, the Court has to consider the police report, the documents sent with it under Section 173 of Cr.P.C. and also if necessary, by examining the accused. After giving opportunity of hearing to the prosecution as well as to the accused, if the Court decides to discharge the accused then reasons are to be recorded. However, if the Court is of the opinion that there is ground for presuming that the accused has committed an offence which can be tried under Chapter-XIX then under Section 240 of Cr.P.C., the Court shall frame charge in writing against the accused. The truth, veracity and effect of the materials proposed to be adduced by the prosecution during trial are not to be meticulously adjudged. The likelihood of the accused in succeeding to establish his probable defence cannot be a ground for his discharge. At the stage of framing charge, it is to be seen whether a prima facie case has been made out. The Court would not delve deep into the matter for the purpose of appreciation of evidence.
JUDGMENT
S. K. SAHOO, J. - The petitioner Agani Charan Behera has filed this application under Section 482 of the Code of Criminal Procedure, 1973 for quashing the charge sheet and the entire criminal proceeding against the petitioner in V.G.R. Case No.39 of 2001 arising out of Cuttack Vigilance P.S. Case No.39 of 2001 pending on the file of learned Chief Judicial Magistrate, Cuttack (hereafter ‘the trial Court’). In the said case, the learned trial Judge as per order dated 07.09.2013 framed charges under Sections 406/120- B of the Indian Penal Code against the petitioner and co-accused persons Debadatta Das and Saroj Kumar Mishra.
2. On 15.10.2001 Sri P.K. Routray, Inspector of Police, Vigilance, Cuttack Division, Cuttack presented the first information report before the Superintendent of Police, Vigilance, Cuttack Division, Cuttack stating therein that he received reliable information on 12.10.2001 at 3.00 p.m. that the rice allotted under ‘Food for work programme’ to Saline Embankment Division, Cuttack stored at Jagatpur Godown, without being given to the labourers, are being disposed of at Malgodown, Cuttack in truck no.OSC 6731. The informant along with other police officials proceeded to Malgodown to verify the information. On reaching at Malgodown, they found truck no. OSC 6731 had been parked near the godown of M/s. Patra Traders being loaded with rice bags. The driver and helper of the truck so also the labourers who were unloading the rice bags from the truck fled away leaving the truck. On search, 200 bags of rice weighing 50 Kg. each were seized along with the vehicle. The vehicle was given in the zima of one B.K. Mohanty in presence of witnesses.
It is the further case of the prosecution as per the F.I.R. that during verification, Sri Debendra Nayak, driver of the truck no. OSC 6731 was traced, who disclosed that the rice belonged to co-accused Saroj Kumar Mishra of Rajnagar of district Kendrapada who took delivery of the said rice from the store situated at Jagatpur on 12.10.2001 and as per his direction, he brought the rice in his truck on hire from Jagatpur to Malgodown for disposal. Co-accused Saroj Kumar Mishra was traced who disclosed that he had taken ten numbers of creek works at Kanak Nagar under Saline Embankment Division, Cuttack. He completed the works in the month of May 2001 but due to non-availability of rice in the store, he could not lift the stock.
It is the further case of the prosecution as per the F.I.R. that on verification of the records, it was found that co-accused Saroj Kumar Mishra was awarded to execute different area works vide F2 Agreement No.56, 57, 58, 59, 60, 61, 63, 65, 142 and 143 under ‘Food for work programme’ for Rs.4,74,970/- by the Executive Engineer, Saline Embankment Division, Cuttack. The works were to be executed under the direct supervision of the petitioner who was the J.E., Talchua Irrigation Section. The records further disclosed that 1400 MT of rice under ‘Food for work programme’ were received on 30.6.2001 by the Saline Embankment Division, Cuttack and the those rice bags were stored in three godowns at Jagatpur, Sikharpur and Rajnagar for distribution purpose. Though the works were completed during the month of May, the departmental officers without any reason kept rice unsupplied and undistributed to the labourers for whom alone it was meant for, for four long months and ultimately when it was decided to supply the rice, instead of supplying rice from Rajanagar store, the rice was supplied from Jagatpur store with an ulterior motive.
It is the further case of the prosecution as per the F.I.R. that on 12.10.2001 the co-accused contractor Saroj Kumar Mishra took delivery of 216 bags of rice from co-accused Debadatta Das, J.E. in charge of store at Jagatpur godown on the strength of authorisation slip issued by the petitioner of Talchua Irrigation Section. Both the contractor and the co-accused J.E. Debadatta Das could not offer any valid explanation about the tra
