CRLMC NO. 1959 of 2012

05.08.2015

Heard Mr.S.K.Padhi, learned Senior Counsel for the C.B.I.

Petitioner in this application under Section 482 Cr.P.C. challenged the order

dated 18.5.2012 passed by the learned Sessions Judge, Khurda, Bhubaneswar in Criminal Revision

No. 17 of 2012 confirming the order dated 3.2.2012 passed by the learned Special C.J.M., C.B.

I., Bhubaneswar in S.P.E. No. 5 of 2010. The learned Special C.J.M., C.B.I., Bhubaneswar has n

ot issued summon against the opposite party on being satisfied regarding no materials availabl

e against him to proceed further in the aforesaid proceeding, while issuing summons against th

ree persons after taking cognizance of offence under Sections 120(B), 420,468,471 and 177 of t

he I.P.C.

The aforesaid order of the learned Special C.J.M., (C.B.I.), Bhubaneswar was c

hallenged in Criminal Revision No. 17 of 2012 before the learned Sessions Judge, Khurda at Bhu

baneswar. The revisional court call for the LCR. On perusal of the LCR and after hearing the p

etitioner, held that the revisional court interfere with impugned order in exceptional cases o

f flagrant miscarriage of justice and when there is a glaring defect in procedure, a manifest

error in point of law leading to miscarriage of justice. The court below after taking cognizan

ce of the offences, has considered the materials on records and heard the parties under Sectio

n 239 Cr.P.C. and issued summons against three accused persons without issuing summon against

the opposite party. The revisional court also came to a finding that there are no direct mater

ials

available against the opposite party on perusal of LCR. Hence

not inclined to interfere with the impugned order.

The learned counsel for the petitioner submits that the prosecution case as pe

r the report that during inspection conducted by the team of Medical Council of India on 5.3.2

010 there were inadequate numbers of Junior Resident/tutors at KIMS and the opposite party man

aged to arrange doctors for the purpose of inspection who are not employees of the KIMS and pr

oduce fake documents regarding those doctors who left immediately after inspection. The prosec

ution has made out case against the opposite party under the aforesaid Sections of I.P.C. ther

efore impugned orders liable to be interfered with. Notice was not issued to the opposite part

y in the present case.

The learned Special C.J.M.(C.B.I.), Bhubaneswar as well as the revisional cour

t on perusal of the materials available on records as discussed hereinabove paragraphs, referr

ing to the statements recorded from various witnesses came to conclusion that there was no dir

ect material against opposite party, accordingly refused to proceed on probability or inferenc

e can be drawn on presumption.

Law is well settled that where the allegations do not disclose prima-facie a c

ase attracting any penal actions, if allegation is probable in Civil Court and principal offen

ce is based on it, the very case is liable to be closed and accused if not found related to an

y of allegations the charge sheet itself is liable to be quashed. (See AIR 1999 SC 2115)

Further the law is well settled that if on face of document doubt placed accus

ation cannot stand. It would

traversee of justice if accused was relegated to trial and he is asked to prove his defence be

fore trial court. (See AIR 2011 SC

1090)

In the present case it was not disputed that the courts below concurrently cam

e to conclusion regarding no materials against the opposite party to proceed with. The Special

C.J.M. examined the materials placed on record after referring to the statements recorded and

decided not to proceed against the opposite party which in my view is justified. Hence this C

ourt not inclined to interfere with the said impugned orders in exercising the jurisdiction un

der Section 482