IN THE HIGH COURT OF ORISSA, CUTTACK CRLLP No.57 of 2014 An Application U/s.378 of Cr.P.C.

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State of Orissa …..… Petitioner -Versus-

Ghanashyam Sahu …..… Opposite party For Petitioner : Mr. Sangram Das, Standing Counsel (Vigilance)

For Opp.party :

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THE HONOURABLE SHRI JUSTICE M.S. SAHOO ------------------------------------------------------------------------------------------

Date of Hearing & Judgment:20.11.2023 ------------------------------------------------------------------------------------------

M.S.SAHOO, J. The petition has been filed under Section 378 Cr.P.C., seeking leave to appeal against judgment dated 26.04.2013 passed by the learned Special Judge (Vigilance), Cuttack, in T.R. Case No.218 of 2007 acquitting the opposite party, after the opposite party faced trial being charged for commission of offences punishable under Section 13(2) read with Section 13(1)(d) and 7 of the Prevention of Corruption Act, 1988.

Misc. Case No.49 of 2014

2. The misc. case has been filed praying for condoning the delay of 269 days in filing the petition.

3. Office note indicates that though notices on limitation were issued on 21.09.2015 directing requisites to be filed by 25.09.2015 for issuance of notice to the opposite party, no steps have been taken for issuance of notice.

Thereafter, the learned counsel who at present is Standing Counsel for Vigilance Department has entered appearance on 14.11.2023.

4. Since the matter is pending since 2014 after issuance of notice on limitation, apart from considering the matter for condonation of delay, the Court has gone through the judgment impugned as annexed to the petition, and considered whether in terms of the prayer made in the petition, leave can be granted for filing appeal challenging the judgment.

5. On perusal of the judgment, it is indicated that the learned court has examined in detail the evidence presented by the prosecution before the learned trial court in an effort to bring home the guilt of the opposite party, such as the P.W.1-the authority who accorded sanction for prosecution against the accused, P.W.2 is the complainant- Decoy, P.W.3- witness to overhear the conversation between the decoy and the alleged, P.W.4-the Officer, who was present at the time of preparation of trap as well as detection, P.W.5-magisterial witness, P.W.6-the investigating officer. It has been found by the learned trial court that prosecution could not examine the Officer who had laid the trap as he passed away during pendency of the trial.

The learned trial court has given finding that there is inconsistency between the evidence of P.W.2-the complainant and evidence of P.Ws.3, 4 & 5 that has not been explained by the prosecution. The learned trial court has found that as per the version of the complainant-P.W.2, the preparation for the trap and detection had taken place of on 30.02.2001 whereas his signature in the complaint is dated 29.02.2001.

The place of preparation of the trap was stated by P.W.2 to be at Vigilance Office, Cuttack whereas the P.Ws.3, 4 and 5 have stated that the preparation had taken place in the vigilance squad office, Khurdha. Apart from such discrepancy, other material objects as exhibited has been considered by the learned trial court.

6. From the above analysis, it has to be concluded that the judgment of the learned trial court does not suffer from any infirmity or illegality. The evidence presented by the prosecution having been evaluated correctly.

7. In Anwar Ali v. State of H.P., (2020) 10 SCC 166 : 2020 SCC OnLine SC 776 (at page 179 of SCC), the law on the appeal against acquittal and the scope and ambit of Section 378 CrPC and the scope of interference by the High Court in an appeal against acquittal was considered by the Hon’ble Supreme Court and it has been held:-

14.1. In Babu [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court had reiterated the principles to be followed in an appeal against