BIGHNESWAR SATAPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner In this criminal revision has challenged the order dated 29.2.2012 passed by the learned Special Judge (Vig.). Cuttack in T.R. No. 433 of 2007 rejecting the petition filed under section 227, Cr. P.C.

(2.) The petitioner Is arrayed as an accused for the offence under section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act (hereinafter referred to as "the Act") and under section 120B, I.P.C. The F.I.R. was lodged by the Deputy Superintendent of Police, Vigilance Cell, Cuttack on 16.9.2003 and the investigation was started thereafter. During preliminary inquiry. it transpired that an estimate was prepared by the present petitioner who was the Executive Engineer for the works. He put excess expenditure to the tune of 1,15,48,022.00./- The petitioner along with five other persons is shown as accused persons. After investigation, since a prima facie case established, charge-sheet was filed on 20.12.2004. The petitioner retired from service on 31st July, 1999. The charge-sheet was filed five years after his retirement.

(3.) Learned Counsel for the petitioner submitted that since the petitioner had no jurisdiction to take a decision, he has not committed any offence ; rather he only carried out the instructions issued by the higher authorities. As per the O.P.W.D. Code, it was the duty of the Executive Engineer to determine the financial implication of such deviation in advance and intimate the Chief Engineer in shape of anticipated deviation statement. The scope for deviation was not arisen till that point of time when only 12.6% of the agreement value was the gross expenditure. As such, he did not warrant to prepare any deviation statement. The first interim deviation statement was submitted by the successor of the present petitioner vide letter dated 17.4.1998 to the Chief Engineer and by that time the petitioner left the post since the month of November. 1997. As such, the petitioner had no role to play in the submission of the first' interim eviction statement. Therefore. the allegations against the present petitioners are baseless. The project put to tender before administrative approval is accorded to tide over the delay as lot of formalities were required to be gone into. The project approval and administrative approval were accorded subsequently, i.e., on 5.10.2002, since years after the work was put to tender. The petitioner had only invited the tender in the absence of administrative approval on the direction of the higher authorities and they have not been arrayed as accused persons. As such, the present petitioner is entitled to be discharged from the alleged charges. He submitted that the Chief Engineer who is the co-accused expired on 29.4.2005. He further submitted that the petitioner filed an application tinder section 227, Cr. P.C. on 9.3.2009. Ultimately, an objection was cation was heard and rejected by the Court below. The petitioner is about 73 years old and suffering from various old age ailments. He further submitted that since the Court below did not consider the application in its proper perspective, the impugned order is liable to be set aside and the petitioner should be discharged from the aforesaid charges.