BANABIHARI MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner is accused in Sambalpur (Vigilance) P.S. Case No.17 of 1995 corresponding to T.R. No.41 of 1995 in the Court of learned Special Judge (Vigilance), Sambalpur. After submission of the charge sheet in that case, learned Special Judge (Vig.), Sambalpur took cognizance of offences under Sections 13(2) 13(1)(b) of the P.C. Act and Sections 420, 468 and 471 of the Indian Penal Code (in short, "IPC") and directed for issue of process against the petitioner. The petitioner filed an application under Section 482 of the Criminal Procedure Code (in short, "Cr.P.C.") vide CRLMC No.3199 of 2000 in this Court for quashing the order of cognizance passed by the learned Special Judge (Vig.), Sambalpur. The said CRLMC was dismissed on 28.3.2001 as not pressed where after the proceeding of T.R. Case No.41/95 continued and on the strength of an NBW. issued by that Court the petitioner was arrested on 9.2.2004. After such arrest, the petitioner has filed the present application u/s.482, Cr.P.C. again praying for quashing the order of cognizance in T.R. Case No.41 of 1995. The petitioner and his learned counsel submitted that the persons from whom the petitioner allegedly accepted bribe have themselves denied the allegation by filing affidavits and the C.D.M.O. has also given approval to the appointment of the Inferior Field Workers (in short, "I.F.W.") and so no case under Sections 13(1)(b), 13(2) of the P.C. Act or u/ss 420, 468 and 471, IPC has been made out. It is specifically submitted that in the absence of any material to show prima facie case for the alleged offences order of cognizance passed by the learned Special Judge (Vig.), Sambalpur against the petitioner is untenable in the eye of law.

(2.) MR . Mohapatra, learned Standing Counsel (Vig.) on the other hand, submitted that the statements of several witnesses are available in the case diary to clearly establish that the petitioner issued the appointment letters to the four persons after accepting gratifications from them, although he was not the appointing authority for I.F.Ws. Learned Standing Counsel (Vig.) submitted that the CDMO, Bolangir, who is the appointment authority for I.F.Ws. never gave his approval for the appointments made by the petitioner and so, the plea of the petitioner in this regard is incorrect. Regarding the affidavits relied by the petitioner, Mr. Mohapatra contends that those affidavits were prepared and filed in the year 2004; whereas the charge sheet in the case had been submitted since 1995 and so the affidavits which were introduced as defence evidence, cannot be taken into consideration for determining existence of prima facie case. Mr. Mohapatra also submitted that the petitioner had challenged the order of cognizance once in a petition u/s. 482, Cr.P.C. and that petition having been dismissed once, the subsequent petition for the same relief is not maintainable.

(3.) ISSUE of appointment letters to the aforesaid four persons appointing them as I.F.Ws. on monthly wage of Rs.750/ - by the petitioner is not disputed. It is also not disputed that the petitioner was not the appointing authority of I.F.Ws. and that the C.D.M.O., Bolangir was the real appointing authority. The statements of the persons, who were appointed as I.F.Ws. by the petitioner and other witnesses are available on the C.D. to support the allegations of the prosecution. There is no indication in the Case diary that C.D.M.O., Bolangir, had/has given approval for appointments of the four I.F.Ws named above. The affidavits of the four I.F.Ws., which are now relied by the petitioner, were prepared and filed in the year 2004 which was much after the filing of the charge -sheet and the order of cognizance. Such affidavits can at best be considered as defence evidence. It has already been decided in the case of State of Orissa. v. Debendra Nath Padhi,* reported in (2005)30 OCR (SC) -177) that defence evidence cannot be considered at the stage of cognizance and that at the stage of cognizance the concerned Court is to consider the materials produced by the prosecution only. If the evidenced produced by the prosecution accepted in its entirety, reveal the ingredients of the offences alleged then cognizance for those offences can be taken. In the present case, there are materials in the case diary to constitute the ingredients of the offence alleged and a strong prima facie case indicating involvement of the petitioner in those offences. So the order of the learned Special Judge (Vig.) taking cognizance of offence under Sections 13(2), 13(1)(b) of the P.C. Act and Section 420, 468 and 471, IPC does not suffer from any legal or factual defect.