Judgment:
L. Mohapatra, J.
1. Criminal Misc. Case No. 306 of 2003 has been filed :
(a) To quash the charge-sheet filed by the Investigating Officer (Vigilance Cell), Bhubaneswar in V.G.R. Case No. 17 of 2001 pending in the Court of Special C.J.M. (Vigilance), Bhubaneswar;
(b) To quash the order taking cognizance dated 9.12.2002 wherein learned Special C.J.M. (Vigilance), Bhubaneswar has taken cognizance of offence under Sections 468/471/420 of the Penal Code.
Criminal Misc. Case No. 149 of 2003 has been filed challenging the order dated 18.1.2003- passed by the learned Special C.J.M. (Vigilance). Bhubaneswar rejecting the petition filed by the petition under Section 205, of the Cr.P.C. to dispense with his personal attendance in Court.
Criminal Misc. Case No. 141 of 2003 has been filed challenging the order dated 18.1.2003 passed by the Special C.J.M. (Vigilance), Bhubaneswar in the aforesaid V.G.R. Case rejecting the prayer of the petitioner to recall the order dated 2 1.12.2002 wherein non-bailable warrant of arrest has been issued against the petitioner. Since all the three cases arise out of the same Vigilance G.R. Case they are taken together for hearing for convenience.
2. Learned counsel appearing for both parties in course of hearing of the cases.prayed for taking Criminal Misc. Case No. 303 of 2003 first and submitted that result in the said case will govern the two other cases. Accordingly, said Criminal Misc. Case is taken up first.
3. From the records it appears that the Inspector of Police, Vigilance Cell, Unit Office, Bhubaneswar drew up the F.l.R. on 29.5.2001 on the following allegations. During investigation of Bhubaneswar Vigilance Division Police Station Case No. 43 dated 16.9.2000 registered against the petitioner, it was found that on the strength of Special Class Contractors Licences granted in favour of M/s Zerina Marines Private Ltd., work order for the construction of certain work was awarded in favour of the said company and the petitioner is the Managing Director of the Company. It is alleged that the tender quoted price is 9.59% in excess over the estimated cost of rupees seventy five lakhs. On further investigation it transpired that during 1999 one Basant Kumar Dhal was working as Executive Engineer, Puri Irrigation Division. Bid documents for the work were shown to have been sold on 17.8.1999 to one Surendra Kumar Jagdev on behalf of M/s. Zerina Marine Private Limited. Bid documents were filed by one N. C. Pradhan, power of attorney holder of the company as well as the present petitioner. While evaluating tender Sri Dhal, Evaluating Officer, relied on the bid-documents submitted by the Company containing certificates in respect of satisfactory completion of similar works. The certificate issued by the Bhubaneswar Development Authority was taken note of showing execution of construction of housing scheme with W.M.B. and Bitumenous Road Water Supply. Pipe Line (Internal and external and electrical) at Kalinga Nagar. Bhubaneswar and other works.Bhubaneswar Development Authority informed that no such certificate was ever issued in favour of M/s. Zerina Marines Private Limited nor the said company has executed any work under it. It is also alleged that along with bid documents, working experience certificates, purportedly issued from NALCO CPP, IDCO. OSHB, Executive Engineer, DSARP Division No. 1, etc. were submitted and such organizations denied to have issued any such working certificate. Similar allegations with regard to ownership of machineries to be used for execution of work has also been made in the F.I.R. On the basis of the above allegations F.I.R. was registered for commission of offences by the petitioner as well the Executive Engineer under Sections 120-B/420/468/471 of the Penal Code read with Section 13 (2) and 13(l)(d) of the Prevention of Corruption Act, 1988. It also appears that the F.I.R. was received by the Superintendent of Police. Vigilance. Bhubaneswar Division, Bhubaneswar on the same date and the informant was directed to take up investigation. It further appears from the record that on completion of investigation the Investigating Officer did not find sufficient evidence to bring home charges of complicity of the Executive Engineer and accordingly he was not charge-sheeted. N.C. Pradhan who had submitted the tender papers as power of attorney holder of the company was also not charge-sheeted. Only the petitioner and the company were charge-sheeted for commission of offences under Sections 468/471/420 of the Penal Code. On the basis of such charge-sheet, the learned Special C.J.M. (Vigilance), Bhubaneswar by order dated 9.12.2002 took cognizance of the offences and by order dated 2 1.12.2002 issued N.B.W. against the petitioner. It further appears that on.21.12.2002 an application was filed on behalf of the petitioner under Section 205 of Cr.P.C. but the said petition was not pressed. Subsequently, two more applications were filed, one for recalling the order dated 21.12.2002 issuing N.B.W. against the petitioner and other under Section 205 Cr.P.C. Learned Magistrate by order dated 18.1.2003 rejected both the petitions giving rise to two Criminal Misc. Cases referred to above.
4. So far as this case is concerned. Sri. B. Baug, learned counsel for the petitioner challenged the order taking cognizance on two grounds; (1) I.O. being an Inspector of Police (Vigilance Cell), Unit Office, Bhubaneswar has no competency or authority under law to submit charge-sheet against the petitioner for commission of offence under Sections 468/471/420 of the Penal Code; and (2) The learned Special C.J.M. (Vigilance), Bhubaneswar not being empowered has no jurisdiction to take cognizance in respect of the said offences. The aforesaid submissions are made by Sri Baug on the ground that the when the public servant has been exonerated and charge-sheet not been filed against him for commission of offence under the Prevention of Corruption Act, the Investigating Officer of the Vigilance Department had no authority to submit charge-sheet and the Special C.J.M. (Vigilance) has no jurisdiction to take cognizance.
Shri D. K. Mohapatra, learned Standing Counsel for Vigilance Department referred to the notification of the Government of Orissa, Home Department dated 4.3.1997 and submitted that the office of the S.P. (Vigilance), Bhubaneswar has been declared to be a police station in the said notification and accordingly the I.O. who is working as Inspector in the Vigilance Department is competent to submit charge-sheet for commission of offence under the Penal Code against the incumbent not being a public servant.
5. From the submissions made above, I am of the view that if the first question raised by Sri EJaug is answered in negative, the Court shall be required to look into the second question. I, therefore prefer to take up the first question regarding competency of Inspector (Vigilance) in submitting charge-sheet against an individual who is not a public servant for commission of offence under the Penal Code. In order to decide the question it is necessary to refer to the notification issued by the Home Department, Government of Orissa dated 4.3.1997. Said notification is quoted below :
'Government of Orissa, Home department. NOTIFICATION dated, Bhubaneswar, the 4.3.1997
No. 11844., In exercise of the powers conferred by Clause (s) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and in supersession of the notification of the Government of Orissa in the Home Department No. 16006/HC, dated the 16th March, 1996, the State Government do hereby declare that the offices mentioned in Column (1) of Schedule-I shall be Police Stations which shall include within their respective limits the areas specified against each in Column (2) of the said schedule for the purpose of the offences mentioned in Schedule-II below with effect from the date of publication of this notification in the Orissa Gazette.
SCHEDULE - I
NAME OF OFFICE : JURISDICTION
1. Office of the S.P., Revenue District of Cuttack Vigilance, Cuttack Jagatsinghpur, Jajpur. Kendrapara.
2. Office of the S.P., Revenue District of Puri, Vigilance, Bhubaneswar, Khurda and Nayagarh.
3. Office of the S.P., Revenue District of Vigilance, Balasore, Bhadrak, Mayurbhanj, and Keonjhar.
4. Office of the S.P., Revenue Districts, of Vigilance, Sambalpur, Sambalpur. Bolangir. Jharsuguda, Bargarh, Sonepur, Deogarh, Sundargarh, Dhenkanal, and Angul.
5. Office of the S.P., Revenue Districts of Vigilance, Berhampur, Ganjam. Gajapati, Koraput Kandhamal, Boudh, Rayagada, Nowrangpur, Malkangiri, Kalahandi and Nawapara.
SCHEDULE - II
(a) Offences punishable under Sections 161, 162, 163, 164, 165 and 165-A of the Indian Penal Code, 1860 (Act - XLV of 1860).
(b) Offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988).
(c) Offences relating to :
(i) Evasion of taxes and different Control Orders;
(ii) Transit and possession of Forest Produces as enumerated in Sections 45 and 46 of the Orissa Forest Act, 1972 (Orissa Act 14 of 1972) read with Section 56 of the said Act;
(iii) The Orissa Timber and other Forest Produce-Transit Rules, 1980.
(iv) Offences under the Essential Commodities Act, 1955 (10 of 1954);
(v) The Prevention of Food Adulteration Act, 1954 (37 of 1954);
(vi) The Standard of Weights and Measures (Enforcement) Act, 1985 (54 of 1985);
(vii) The Drugs (Control) Act, 1950 (26 of 1950);
(viii) The Motor Vehicles Act, 1988 (59 of 1988);
(ix) All Organised offences under the aforesaid Acts, Orders and Rules affecting the pecuniary interests of the State.
(d) Attempts, abetments and conspiracies in respect of offences mentioned in items (a), (b) and (c) above, by whomsoever committed;
(e) Offence under Sections 409, 419 and 420 and Chapter XVIII of the Indian Penal Code, 1860 when they are committed, attempted, abetted or conspired to be committed, by public servants as defined in Clause (c) of Section 2 of the Prevention of Corruption Act, 1988.
(f) Any other particular offences or class of offence that may be specified by the State Government from time to time.' On perusal of the aforesaid Notification it is found that in exercise of the powers conferred in Section 2 of the Cr.P.C. the State Government declared five offices of the S. P. (Vigilance) of the State to be police stations and also specified offences which shall be investigated into by these officers in the said Notification, Office of the S.P. (Vigilance), Bhubaneswar is one of the five offices which has been declared to be a police station. Therefore, the Inspector of Vigilance working in the office of the S. P. (Vigilance), Bhubaneswar has competency to enquire/investigate into the offences specified in Schedule - II of the notification. So far as the Penal Code is concerned, Clause (a) of the Schedule-II provide that offence punishable under Sections 161, 162. 163, 164, 165 and 165-Aof the Penal Code can be investigated/enquired into by the Inspector of Vigilance. Other provisions on which reliance was placed by Sri Mohapatra is Clause (c)(ix) wherein it is mentioned that all Organised offences under the aforesaid Acts, Orders and Rules, affecting the pecuniary interests of the State can also be enquired into. Relying on the said clause learned counsel Sri Mohapatra appearing for the Vigilance Department submitted that the I.O. was competent to enquire into other offences of the Penal Code even though the same has not been specified in Clause (a) of the Schedule-II.
6. In order to decide the question raised by the learned counsel appearing for the parties, it is worthwhile to refer to a decision of the Patna High Court reported in 1979 ILR (Patna) 459 (J.C.A. Saldanha v. Inspector General of Police, Bihar, Patna and Ors.) Special Bench of the Patna High Court which decided the case was hearing an application under Articles 226 and 227 of the Constitution of India. The petitioner therein had prayed for issuance of a writ of mandamus directing the Additional Chief Judicial Magistrate, Jamshedpur to apply himself to the final report and to restrain Vigilance Cell from re-opening investigation in Tatanagar G.R.P.S. Case No. 4 (3) 77. It appears from the judgment that at the relevant time the petitioner in the said case was working as Superintendent of Transportation with TISCO. On 11.3.1977 the Railway Police instituted a case on the statement of Inspector, Railway Police, Tata Rail Circle. Three railway employees were made accused besides six officers of the TISCO including the petitioner therein. The allegation made in the F.I.R. was that during the year 1973, 1974 and 1975 TISCO had transported goods from Tatanagar/Adityapur to Joda Ferro Manganese Plant at Banaspani and Noamundi by railway wagons without indent for allotment, without weighment, without booking and without insurance or railway receipts. It was further alleged that because of this unusual procedure of transportation of goods, loss was caused to the revenue of railway to the tune of about five to ten lakhs of rupees. Though the investigation was taken by the railway police, charge-sheet was not submitted. When the matter stood thus, on 9.12.1977 the Additional Inspector-General of the Police Incharge Criminal Investigation Department decided to take over control of the Investigation of the said G.R.P.S. Case and investigation was entrusted to the Inspector, C.I.D. After investigation, the Inspector, C.I.D. submitted final report. Before acceptance of the final report by the Magistrate, on 15.2.1979 the learned Magistrate received a letter from the then S.R.P. praying the Court not to accept the final report and requested to await further investigation report as directed by the Government. After receipt of such request the learned Magistrate passed an order awaiting report on further investigation and adjourned the case. At this stage, the petitioner apprehending intervention of the State filed a writ application and further investigation was stayed by the Court. However, at a later date, stay order was vacated and the case was transferred to Patna for hearing. It appears from the judgment that when the matter stood thus, State Government directed Vigilance Enquiry. It was contended on behalf of the petitioner that the Vigilance Department has no jurisdiction to investigate the case against the petitioner and it was further submitted that the Vigilance Cell of the State Government had been declared to be police station only for limited nature of cases and the present case did not come within that category and therefore order of the State Government directing re-opening of investigation by the Vigilance Department was invalid. It was stated on behalf of the State of Bihar that the notification is confined to cases relating to corruption and bribery and this case was one of corruption and therefore it was very much within the scope of investigation by Vigilance Department. The Special Bench considered different provisions of the Code of Criminal Procedure and in para-11 of the judgment the Court held that since no case of corruption is made out, the Vigilance Department could not be vested with power to investigate the case and the case not being one of corruption or bribery, the State Government has no jurisdiction to order fresh investigation into the case by the Vigilance Department.
So far as the present case is concerned, there is no dispute at the Bar that at the beginning of the investigation a public officer was involved and it was alleged that he had shown undue favour to the petitioner by accepting certain documents with regard to experience and recommendations for issuance of work order in his favour. However, on conclusion of investigation, the Department did not find any evidence to support the charge for commission of offences either under the Prevention of Corruption Act or under the Penal Code and accordingly the said Executive Engineer Sri Dhal was not charged-sheeted. Since corruption could be proved and no charge-sheet was filed against the public servant for commission of offence under the Prevention of Corruption Act, if the principle laid down by the Special Bench of Patna High Court is accepted, the Vigilance Department has no competency to submit a charge sheet against an individual who is not a public servant for commission of offence under the Penal Code. Notification on which much reliance is placed by the learned counsel for the Department only indicates that the Vigilance Department is, as per notification, competent to investigate into the offences punishable under Sections 161 to 165-Aof the Penal Code, 1860. It was contended by Sri Mohapatra. learned Standing Counsel for the Vigilance Department that as per Clause (c)(ix) of Schedule-II of the notification all organised offences under the aforesaid Acts, Orders and Rules, affecting the pecuniary interests of the State can also be investigated by the Vigilance Department. In this connection, reference may be made to Section 31 of the Prevention of Corruption Act, which provides as follows:
'Sections 161 to 165-A (both inclusive) of the Indian Penal Code shall be omitted, and Section 6 of the General Clauses Act, 1897 (10 of 1897) shall apply to such omission as if the said sections had been repealed by a Central Act.'
In view of the repeal of the aforesaid provisions of the Penal Code, Clause (a) of Schedule-Il of the notification becomes nonexistent in the eye of law. Therefore, Clause (c) (ix) of Schedule-1! of the notification cannot have any application in respect of offences under the Penal Code. For the sake of argument even if it is accepted for a moment that Clause (a) of Schedule-II of the notification is still in operation, I fail to understand how Clause (c)(ix) shall entitle a Vigilance Inspector to investigate into any offences under the Penal Code. All organised offences as mentioned in Clause (c)(ix) of Schedule-II of the notification, obviously means offences committed by person in an organised way which must include a public servant. In absence of public servant, said clause, in my considered view, has no application. If interpretation of the clause as stated by Sri Mohapatra the learned counsel for the Vigilance Department is accepted, the Inspector, Vigilance shall also be entitled to accept F.l.R. and investigate into cases for commission of offences such as Section 395 of the Penal Code against persons who are not public servants. I am sure such an interpretation was never intended. In the present case, Shri Dhal. Executive Engineer against whom investigation had initially been made having not been charge-sheeted, the Vigilance Inspector had absolutely no competency or authority to submit a charge-sheet against an individual who is not a public servant for commission of offences under Sections 468/471 of the Penal Code.
7. Having found that the Inspector (Vigilance) who had submitted charge-sheet before the Court had no competency to submit such a charge-sheet against the petitioner for commission of offence under Sections 468/471/420 of the Penal Code, there cannot be any doubt in mind that the learned Special C.J.M. (Vigilance), Bhubaneswar could not have taken cognizance on such a charge- sheet which had been filed without any authority. Accordingly, I quash the order dated 9.12.2002 passed by the learned Special, C.J.M. (Vigilance), Bhubaneswar taking cognizance of offences under Sections 468/471/420 of the Penal Code. Having also found that the Vigilance Inspector had no authority or competency to investigate or submit charge-sheet, the entire proceeding is liable to be quashed and accordingly the Vigilance G.R. Case No. 17 of the 2001 pending in the Court of Special C.J.M. (Vigilance), Bhubaneswar is quashed.
8. Criminal Misc. Case No. 141 of 2003 has been filed challenging the order dated 21.12.2002 passed by the Special C.J.M. (Vigilance), Bhubaneswar rejecting prayer of the petitioner to recall N.B.W. and Criminal Misc. Case No. 149 of 2003 has been filed against the same order rejecting prayer of the petitioner for dispensing with his personal attendance. Since I have quashed the proceeding in Criminal Misc. Case No. 303 of 2003, there is no need to decide these two Criminal Misc. Cases as orders impugned therein no longer survive for consideration.
9. Before parting with the case, I feel it necessary to deal with certain other aspect of the matter. When all the three cases were taken up together for admission, learned counsel Sri Mohapatra appearing for the Vigilance Department took notice on behalf of the Department and he was directed to take instruction in the mater by order dated 31.1.2003 passed in Crl. Misc. Case No. 141/2003. On the next date,i.e. on 14.2.2003 it was contended by Sri Mohapatra that records pertaining to the case had already been filed in a connected matter vide Criminal Misc. Case No. 9692/2001 reserved for judgment and the records were not available with him. Though such a statement was made in Court it appears from the record that on the request of the I.O. the learned Special C.J.M. (Vigilance), Bhubaneswar by order dated 21.12.2002 had returned the case diary to the I.O. on his request. In view of the submission of the learned counsel Sri Mohapatra that the case diary has already been submitted in the aforesaid Criminal Misc. Case which was reserved for judgment, L.C.R. was called for and the learned Special C.J.M. (Vigilance) was directed to submit an explanation as to under which provision of law he had returned the case diary knowing fully well that after submission of records before the Court along with charge-sheet, the same forms a part of Court record. Learned Special C.J.M. submitted his explanation on 3.3.2003 stating that on the prayer of the l.O. case diary was given to him for reference and safe custody and as a matter of practice in each and every C.B.I, case, case diaries are retained by the prosecuting agency. In view of trfe above, it is clear that on the date submission was made before the Court that the case diary was not available and had been filed in another criminal case reserved for judgment, case diary was available with the l.O. which he had taken from the Court. On being questioned Sri Mohapatra learned counsel for the Vigilance Department expressed that his submission on 14.2.2003 was based on instruction from the department. It is unfortune that even though l.O. had records with him, the learned counsel was not instructed properly and such a submission was made in Court. Apart from the above, an affidavit has been filed by the l.O. in this case, wherein a statement has been made by the l.O. to the following extent:
'In all fairness this Honourable Court may be pleased to like to send this case to Honourable Justice Mr. M. Papanna for disposal'.
After looking into the said statement made in the affidavit, Sri Mohapatra, learned counsel for the Vigilance Department was asked as to whether the l.O. has any competency to request the Court for transfer of the same to a particular Court and in the process have a choice of Court. Sri Mohapatra in reply submitted that such statement was made without any such intention and Court may not take serious view of such statement. He further submitted that the Department has absolutely no intention of making any such prayer and requested the Court to take up the matter for hearing. In view of such submission the case was heard by this Court.
In view of the above submissions made on behalf of the Department, I do not want to proceed against the Investigation Officer for filing such an affidavit.