SUBASH CHANDRA SETHIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE present application under Section 482 Cr.P.C. has come to be filed by the petitioner -Subash Chandra Sethia, Deputy Collector, Collectorate, Bargarh, Dist. Bargarh seeking to challenge an order of cognizance dated 29.06.2005 passed by the learned Special Judge (Vigilance), Sambalpur in C.T.R. Case No. 38/80 of 2005 -07, inter alia, on the ground that the composite order of cognizance and issuance of process passed by the learned Special Judge (Vigilance), Sambalpur had been passed in a mechanical manner without prima facie satisfaction regarding the complicity of the petitioner in the alleged commission of the offence and as such the impugned order indicates non -application of judicial mind.

(2.) MR . T. Nanda, learned counsel for the petitioner contended that Section 190 Cr.P.C. which stipulates the requirement of taking of cognizance and Section 204 Cr.P.C. deals with the requirement for issue of process and consequently contends that an order of cognizance cannot be equated with the issuance of process and an order of cognizance does not ipso facto require issuance of process which can only be issued by a Magistrate taking cognizance of an offence to form an opinion whether there is sufficient ground for proceeding or not. Accordingly, it is submitted that it would be clear from the order impugned that the court below has formed no opinion regarding his subjective satisfaction about commission of alleged offences by the petitioner and the court below has erroneously equated the order of cognizance with that of issuance of process in a mechanical manner without recording his prima facie satisfaction. In this respect, reliance has placed by the learned counsel for the petitioner on the judgment rendered by this Court in the case of Saroj Kumar Mahapatra V. State of Orissa, : (2008) 39 OCR 895 as well as several other judgments referred therein. In the aforementioned case, this Court came to conclude that the order of taking cognizance impugned therein did not disclose the prima facie satisfaction of the trial court regarding availability of materials for taking cognizance against the petitioner, inasmuch as the subjective satisfaction of the trial court with regard to the complicity of the petitioner in the alleged offence has not been disclosed while proceeding to take cognizance of the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act. Accordingly, the order of cognizance was set aside and the matter was remitted back to the trial court to peruse the materials on record and thereafter to arrive at prima facie satisfaction as to whether materials were available for taking cognizance of the offence against the petitioner.

(3.) IN the light of the submissions as recorded hereinabove, it would be relevant at this stage also to take note of the basic allegations against the present petitioner which would appears from the records appended to the application. It appears that Sambalpur Vigilance P.S. Case No. 32 of 2003 came to be registered on 18.08.2003 under Section 13(2) r/w 13(1)(c)(d) of the P.C. Act, 1988 and Section 409 of the I.P.C. purportedly on the basis of misappropriation by the petitioner as a public servant showing purchase of 1000 bags of IDCOL Cement.