DILIP KUMAR RAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C. in short) has been filed with a prayer to quash the First Information Report dated 28.6.1996 lodged by the Inspector of Vigilance, Cuttack, against the petitioner under Section 13 (2) read with Section 13(1) (e) of the Prevention of Corruption Act, 1988 ('P.C. Act hereinafter) and registration of Cuttack Vigilance P.S. Case No.53 of 1996 by the Superintendent of Police, Vigilance, Cuttack. It may be stated here that during pendency of this application, charge -sheet against the petitioner has been filed on 15.5.2007.

(2.) THE case of the petitioner, as narrated in the application, briefly stated, are thus : The petitioner was born in a business family at Rourkela and after death of his father -Hrushikesh Ray in 1978, he inherited the business of his father. Most of the business operations, which the petitioner inherited, were located at Rourkela and petitioners wife -Nilima Ray and mother -Kalayani Ray were all in the business having substantial individual earnings. The petitioner is the Karta of the HUF known as H.K. Ray and Sons, which has independent earnings. The petitioner is a shareholder of two other companies, namely, M/s. Raysons Holding (P) Ltd. and M/s. Kalyani Properties (P) Ltd. The petitioner is an income tax assessee since 1970 so also his mother and wife since pre -1960 and 1982 respectively. H.K. Ray and Sons is also an income tax assessee since 1975. Both the companies are also income tax assessee. All the aforesaid assessees have substantial earnings and have taken loan from various financial institutions or otherwise for creating assets and meeting their respective expenditures. The petitioner has further stated that he and his wife Nilima Ray have divorced during December, 2000 but during the relevant period, between 1990 and 1995 and even thereafter, i.e., on the date of lodgement of the FIR on 28.6.1996, and thereafter till December, 2000, they remained as husband and wife in the eyes of law.

(3.) OPPOSING the application, Shri S.K. Mund, learned counsel for the opposite parties, as well as Shri D. K. Mohapatra, learned Standing Counsel for the Vigilance Department, submitted that the FIR taken in its entirety prima facie would constitute the ingredients of the cognizable offence under Section 13 (1) (e) of the P.C. Act. The allegation, after a thorough investigation, was well founded and as a consequence has culminated in the charge -sheet. Relying upon the decision in the case of R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684, the learned counsel submitted that since the petitioner was the Minister, Industries, Orissa, during the period between March, 1990 and March, 1995 he was a pubic servant as defined in Section 2(c) (i) of the Act. This question has not been raised by the petitioner. So, the same does not fall for consideration of this Court. Learned counsel for the opposite parties further relied upon the decision in the case of State of Maharashtra v. Iswar Piraji Kalpatri, (1986) 1 SCC 542, wherein it was held that the opportunity to be afforded to the delinquent officer under Section 5 (1) (e) of the Act, corresponding to Section 13 (1) (e) of the P.C. Act, 1988, to satisfactorily explain his assets and resources is before the Court and not at an earlier stage. In fact the order of the High Court holding that such opportunity, if not afforded prior to registration of the case, is fatal was set aside by the apex Court.