STATE Vs. H K PATTNAIK

JUDGEMENT

(1.) IN this application sty ed as one under Section 401 of the Code of Criminal Procedure, 1973 (in short, the 'Code'), the State of Orissa has assailed correctness of order passed by teamed Special Judge (Vigilance), Sambalpur discharging Harekrushna Pattnaik (hereinafter referred to as the 'accused') under Section 239 of the Code, and acquitting him of the charges.

(2.) BACKGROUND facts leading to filing of the application are essentially as follows : First Information Report was lodged by the Deputy Superintendent of Police (Vigilance) which was registered as Berhampur P. S. . Case No. 8 of 1987, alleging that the accused who was functioning at the relevant point of time as Chief Executive of the Orissa Forest Development Corporation Limited (hereinafter referred to as the 'Corporation') and was stationed at Bolangir entered into criminal conspiracy with his subordinate staff and contractors thereby committing offence of 'criminal conspiracy' as defined in the Indian Penal Code, 1860 (in short. 'IPC'). According to prosecution, factual position is essentially as follows. Accused had authority to supervise marketing of Kendu leaves, sal seeds and timber for the Bolangir, Koraput, Kalanandi districts and part of Sambalpur district. Coupas Nos. D.L. 38/82 -83, 179/82 -83, 99/82 -83, 40/83 -84, and 85 to 88/8i -84 under Chitrakonda Range, Malkangiri Division were leased out to the Corporation for various operations like felling trees, converting to logs or timbers, and marketing them for the highest price. Accused entered into negotiations after discussion with some forest contractors (co -accused in the case) and permitted them to operate the coupes on ex -coupe basis or on the basis of site delivery. He undertook this exercise allegedly on the basis that out of seven concerned coupes, six were irregular, subject to podu cultivation, and were wind stricken. There was violation of the Orissa Forest Contract Rules, 1966 (in short, 'Contract Rules'). There was loss of more than 1012 cubic metres worth more than Rs. 43.5 lakhs. Loss to the Corporation was occasioned due to criminal conspiracy of the accused and his co -accused persons. Charge, sheet was submitted latter detailed investigation. Questioning the order taking cognizance of offences punishable under Sections 13(2), 13(1),(c)'(d) of the Prevention of Corruption Act. 1988 (in short, 'PC Act') and Sees 477A, 403, 79 read with Section 120B, IPC and Section 37 of the Orissa Forest Act, 1372 (in short, 'Forest Act'), accused had moved this Court is Criminal Misc. Case No. 25 of 1994. He was permitted to raise the dispute at the time of consideration of charge, pursuant to the direction given, learned Special Judge considered the matter and by the impugned order directed discharge, holding that (a) there was no material to establish criminal conspiracy and (b) the ingredients necessary to constitute such offence were absent. He acquitted the accused of the charges. He referred to the statements of the D. F. O., Jeypore, Koraput regarding six of the coupes being irregular, statements of the Asst. Accountant and another employee were referred to regarding discretion exercised for holding negotiation. Direction given by the Managing Director in his letter No. 3174 dated 8 -4 -1984 not to go for ex -coupe operation, but giving discretion to the accused to decide the matter himself and not to dishnour the contract of purchasers and to protect the interest of the Corporation was taken note of. On the strength of this directive, accused permitted the Divisional Manager of the Corporation to negotiate afresh for ex -coupe sale as it was deemed better and safer by him. He enhanced the security deposit at first to 20% and later on reduced it to 15% ' of the sale price. The percentage fixed after reduction was higher than the permissible limit of 10%. He also fixed the upset price. Taking into consideration the inaccessibility of the area in which the coupes were situated he took timely action to protect them from damage and destruction. No directive other than the one referred to above was given. Action taken by the accused saved the Corporation from unnecessary expenditure and loss of property. There is no material to show that accused was made aware of any unauthorised felling or cutting of trees. The time for working out the coupes were extended from time to time. Taking all the above aspects into consideration it was concluded that the loss if any cannot be attributed to any action of the accused. It was observed that there was no direct or circumstantial material to show nexus between action of accused and Criminal charges levelled. No evil or criminal intention was inferable. On the contrary with a view not to spoil health of the forest and prevent unnecessary drainage of funds, accused acted in good faith. Statements recorded during evidence abundantly point out at bona fide conduct and needle of suspicion does not point to him. With aforesaid observations, the order of discharge and acquittal was passed.

(3.) BEFORE as order of discharge under Section 239 of the Code is passed, the Magistrate is required to ;(a) consider all the documents referred to in Section 173(2)(b) examine the accused, if it is considered necessary and (c) give the prosecution and the accused an opportunity of being heard. If ail these being done, the Magistrate considers the charge against the accused groundless, he will discharge him. At. that stage all that the Magistrate is required to do is to see that there is a reasonable basis or foundation for framing a charge. In other words, the Magistrate has to consider whether the statements and the circumstances if accepted without any addition or altertion make out s prima facie case for which a charge need be framed against the .accused. If the answer is in affirmative he will proceed with the . trial of the offence. An order passed under Section 249 is not to be equated with an order of acquittal which is passed under Section 249. The word 'discharge' is used in Sections 227, 239, 245 and 321, but in contextually different manner. It is to be noted that the word 'discharge' has not been defined in the Code. An order of discharge under Section 239 of the Code does not amount to acquittal as no trial has taken place and as such fresh trial can be held and cognizance can be taken on the basis of fresh material. The word 'discharge' does not mean a discharge from the whole case. The Code does not contem late an implied discharge at all. Mere non -framing of charge by a Magistrate does not necessarily mean a discharge of the accused so long as the Magistrate can frame a charge which he has not considered necessary to frame at an earlier stage, under Section 216 of the Code. The expression 'charge against the accused to be groundless' is not to be construed to mean when there is no legal evidence to support charge brought against the accused and the acts did not make out any offence at all. The word 'ground' as appearing in the Section must be taken in its ordinary connotation to mean basis, foundation of valid reason. The obvious meaning of the word 'charge' as used in Section 239 is in the sense of allegation or accusation. The Section does not warrant and/or justify an elaborate examination of the statements recorded during police investigation.