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Narasingha Patnaik Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in38(1972)CLT1173; 1973CriLJ1744
AppellantNarasingha Patnaik
RespondentState of Orissa
Cases ReferredBiswabhusan v. State of Orissa
Excerpt:
..... - it is also stated that on a careful examination of the case records produced by the district officer, he was satisfied that there were materials to prosecute the appellant for which sanction was accorded. misra relied on several decisions of which mention may be of 1954crilj1002 ;1958crilj265 and ilr (1969) andh pra 395. it is redundant to refer to each of these citations, for the law is well settled as laid down by their lordships of the supreme court that unless the accused is prejudiced in his trial or unless there is apprehension of failure of justice, illegality or irregularity in any sanction will not vitiate the trial. c and was given a chance then as well to give such explanation as he wished. 1 and 2 went to bhanjanagar for making the deposit, could not meet the health..........to deal with the two objections first.6. according to section 5a of the act, certain categories of police officers are competent to investigate into the offences punishable under the act. the relevant portions of the section run thus:5-a. (i) notwithstanding anything contained in the code of criminal procedure, 1898 (5 of 1898), no police officer below the rank,-(d) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable under section 161, section 165 or section 165a of the indian penal code (45 of 1860), or under section 5 of the act without the order of a presidency magistrate or a magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:provided that if a police officer not below the rank of an inspector of.....
Judgment:

K.B. Panda, J.

1. The appellant has been convicted under Section 5(2) read with Section 5 (H) (c) and (d) of the Prevention of Corruption Act (Act II of 1947), hereinafter referred to as the Act, and sentenced to undergo R. I. for one year for the offence under Section 5(1)(c) and no separate sentence has been passed for the offence under Section 5(f)(d), by Sri B. K. Behera, Special Judge, Bhubaneshwar on 22-12-1969 in context of the following facts.

2. The appellant was serving as Samtary-cum-Food Inspector in Bhanjanagar Block-I from March, 1964 to March, 1966. While so working, it is alleged, in the year 1965 he abused his official power, collected food licence fees from 13 persons amounting to Rs. 72/- (details given in the judgment of the learned Special Judge) and misappropriated the same by converting the amount to his own use. The defence was a flat denial of having received any money from the persons named and thus there was no question of misappropriation or abuse of official power. The specific case of the appellant was that one Natabar Padhi. a disinfector, who was working under him, was transferred on a confidential report made by him to the District Health Officer, but he took leave, continued to stay at Bhanjanagar, and being a representative of the Ganjam District for Class IV Employees Association, joined hands with others including the Inspector of Vigilance who conspired and foisted this false case instigating some people to depose against him,

3. Out of 13 instances of misconduct alleged and he was charged with, the learned Judge found instances 1, 3, 4 and 7 to have been proved and so held the appellant guilty as aforesaid.

4. There were 26 witnesses for the prosecution and one for the defence. D. W. 1 Prasanna Kumar Patnaik is none but the younger brother of the appellant through whom it was sought to be proved that the appellant, as per his tour diary, was not at those places where he was alleged to have received any money and that this Natabar Padhi had manipulated certain petitions to have been filed against the appellant. The learned Judge while believing certain instances of misconduct to have been proved beyond doubt, substantially held the defence plea of conspiracy between Natabar Padhi and the Vigilance Inspector as baseless and further that there was no reason why different persons of different localities, unconnected with each other or Natabar, would depose falsely against the appellant merely to oblige Natabar to the great peril of the appellant.

5. Mr. Misra, appearing on behalf of the appellant, raised two preliminary objections and contended firstly that the investigation was illegal and therefore the conviction was unsustainable, and secondly that the previous sanction for prosecution, as contemplated under section 6 of the Act was in fact no sanction as it did not disclose facts for which sanction was accorded and, therefore, the trial being vitiated, the conviction cannot be upheld. Mr. Misra also challenged the facts of the four instances said to have been proved by the learned Judge; but the bulk of his argument was directed against the preliminary objections referred to above. Accordingly I propose to deal with the two objections first.

6. According to Section 5A of the Act, certain categories of police officers are competent to investigate into the offences punishable under the Act. The relevant portions of the section run thus:

5-A. (i) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank,-

(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code (45 of 1860), or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:

Provided that if a police officer not below the rank of an Inspector of Police, is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or makes arrest therefor without a warrant:

Provided further that an offence in Clause (e) of Sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

Mr. Misra's contention is that on receipt of reports (Exs. 1/1 and 2/1) the Inspector of Vigilance Bhanjanagar, took up investigation, treated them as F. I. R. (Ex. 15/1) and reported on 17-6-1967 to the Superintendent of Police, Vigilance, Berhampur, under Ex. 15, and requested that a criminal case under Section 5(1) of the Act may kindly be registered against the appellant for investigation. Thus, according to Mr. Misra, this Vigilance Inspector had already commenced investigation, though according to Section 5A(1)(d) of the Act, no police Officer below the rank of Deputy Supdt. of Police is competent to do it without an order of a Magistrate first class.

As it appears, Mr. Misra was not aware of the fact that the S.P. Vigilance Branch, Southern Division, Berhampur, has been invested with the powers of a Magistrate first class for the purpose of ordering investigation under Section 5A of the Act. As such, when the notification of the Government of Orissa, Home Department, dated 20-11-1962, investing the S.P. Vigilance Branch, Southern Division Berhampur, with such magisterial powers was confronted, Mr. Misra endeavoured to get out of the situation and contended that the purpose of the Legislature is that the officer must be a Magistrate as contemplated under Section 14 of the Criminal P. C. Elaborating the same he contended that after the separation of the judiciary it is unthinkable that a police officer would be invested with such magisterial powers. This contention, glamorous though, is of little assistance, for, under Section 14 (3), Criminal P. C. the State Government is competent to delegate, with such limitation as it thinks fit, to any officer under its control the powers conferred by Sub-section (1) and, therefore, there was nothing wrong in the Vigilance Inspector seeking permission of the S.P. Vigilance, Berhampur, to carry on the investigation. That the S.P. Vigilance, Berhampur, had been so authorised with all the powers of a Magistrate first class as per provisions of Section 14 (3), Criminal P. C. for the purpose of ordering investigation under Section 5-A of the Act, goes unchallenged, and therefore there is no point in this preliminary objection which is rejected. Also I may mention here that no such objection had been taken at the initial stage by the appellant and therefore he did not entertain any apprehension that the investigation, if done by any police officer below the rank of Dy. Supdt. of Police, would be to his prejudice. However, Mr. Misra stretched his argument that in this case the investigation haying been done by the Inspector, who was in league with Natabar Padhi, such prejudice could be presumed. In this context Mr. Misra cited several rulings, such as : 1955CriLJ526 ; : AIR1957MP43 ; and : AIR1958MP157 which need not be referred to being irrelevant for our purpose. Mr. Misra seems to have relied much on the case of Ramanujachari reported in ILR (1969) Andh Pra 395. But that is a case where it was held that the Dy. Supdt. of Police, though not below the grade of Assistant Supdt. of Police, did not have the requisite qualification for appointment as a Magistrate and this case is of no assistance to the appellant.

7. Coming to the second point about previous sanction, it was obtained under Ex. 29 dated 18-7-1966 and Ex. 30 dated 31-12-1966. The sanction was given by the Director of Health Services, Orissa, on both the occasions. Since there was some mistake in the description of the section under which the offence was committed, so there was the necessity for granting a second sanction wherein the previous mistake was corrected. It was definitely for a sum of Rs. 72/- from different dealers and towards collection of food licence fees in 13 instances. Therefore, the number of instances are there, the total amount is there and the relevant sections of the Act, namely, Section 5(1) (c) and (d), punishable under Section 5(2) of the Act are also there. It is also stated that on a careful examination of the case records produced by the District Officer, he was satisfied that there were materials to prosecute the appellant for which sanction was accorded. It was contended that in the absence of 'the list enclosed', as shown in the sanction order, the appellant has been prejudiced and the sanction order is illegal. For this Mr. Misra relied on several decisions of which mention may be of : 1954CriLJ1002 ; : 1958CriLJ265 and ILR (1969) Andh Pra 395. It is redundant to refer to each of these citations, for the law is well settled as laid down by their Lordships of the Supreme Court that unless the accused is prejudiced in his trial or unless there is apprehension of failure of justice, illegality or irregularity in any sanction will not vitiate the trial. In the case of Munnalal v. State of U. P., : 1964CriLJ11 it has been held :

That though the letter of Section 5-A of the Act was complied with its spirit was not, for in reality there was no investigation by the officer authorised under that section and the real investigation was by a sub-inspector of police who was never authorised. Section 5-A is mandatory and not directory and an investigation conducted in violation thereof is illegal. Even if however there was irregularity in the investigation and Section 5-A was not complied with in substance, the trials could not be held to be illegal unless it was shown that miscarriage of justice had been caused on account of the illegal investigation. There was no miscarriage of justice in these cases at all due to irregular investigation, x x x x x x No objection was taken at the trial when it happened and it was allowed to come to an end. The mere fact that in view of the provisions of Section 239 of the Code of Criminal Procedure, the special judge thought it necessary to separate the trial of accused with respect to certain items for which there was sanction would not mean that these new cases had no sanction behind it. The sanction of the original four cases would cover these three cases also.

In the case of Jaswant Singh v. State of Punjab : 1958CriLJ265 , it has been held that:

The prosecution for offence under Section 5(1)(d) was not barred because the proceedings were not without previous sanction which was validly given for the offence of receiving a bribe, but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of sanction which was condition precedent for Courts taking cognizance of the offence alleged to be committed. The want of sanction for the offence of habitually accepting bribes therefore did not make the taking of cognizance of the offence of taking a bribe of Rs. 50/- void nor the trial for that offence illegal and the Court a Court without jurisdiction x x x x x. The accused was not prejudiced in the context of his defence.

In the case of Biswabhusan v. State of Orissa : 1954CriLJ1002 , it has been laid down:

2. It is not necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out facts in respect of which it is given. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as facts can be, and are proved in some other/ way.

The third point set out in the certificate of the High Court relates to the absence of particulars in the charge and, we gathered from the arguments, in the sanction. But no particulars need be set out in the charge in such a case because the offence under Section 5(1)(a)does not consist of individual acts of bribe-taking as in Section 161 of the Indian Penal Code but it is of a general character, Individual instances may be useful to prove the general averment in particular cases but it is by no means necessary because of the presumption which Section 5(31) requires the Court to draw. There was therefore no illegality either in the sanction or in the charge; nor has the accused been prejudiced because he knew everything that was being urged against him and led evidence to refute the facts on which the prosecution relied He was also questioned about the material facts set out above in his examina- tion under Section 342 of the Criminal P. C and was given a chance then as well to give such explanation as he wished.

Accordingly both the preliminary points raised on behalf of the appellant are repelled as without merit.

8. Before coming to the facts it is necessary to lay down the procedure regarding obtaining licence and the role the Sanitary-cum-Food Inspector has to play therein. The Food Inspector is not to collect licence fee or renewal fee in cash himself from the vendor of the food articles. The money is to be deposited either in the treasury or in the bank through chalan by the party and the same, that is, the receipted chalan is to be produced before the Food Inspector who is to enter the fact in the register maintained for the purpose and recommend the case to the Health Inspector for granting a licence to the dealer. Thus the Sanitary-cum-Food Inspector is not supposed to receive money direct from any party. This procedure is obviously adopted to eliminate chances of misappropriation.

9. Coming to the facts the learned Judge has taken Items 1 and 3 together since they are inter-linked. It is alleged that the appellant received Rs. 10/- from Biswanath Sahu (P. W. 1) as the licence fee for two years 1964 and 1965 at the rate of Rs. 5/- per year and similarly took Rupees 10/- from Ananda Sahu (P. W. 2), paternal uncle of P. W. 1, as licence fee for 2 years for which the appellant granted two receipts Exs. 4 and 5 respectively dated 15-4-1965. It is alleged that this amount of Rs. 20/- has not been deposited and has been misappropriated by the appellant.

P. Ws. 1 and 2 are residents of village Chandipatna. They state that in the month of Magha of the year 1965 a peon went and told them that they were to pay licence fees for selling food articles at the rate of Rs. 5/- per year. The same peon in the following Falgun again went to them and handed over 2 chalans. The next day P. Ws. 1 and 2 went to Bhanjanagar for making the deposit, could not meet the Health Inspector and so returned unsuccessful. In the village they asked Jagannath Misra (P. W. 21) who advised them to come next day to Bhejiput, a part of Bhanjanagar. Accordingly P. Ws. 1 and 2 did so and found P. W. 21 before the Cycle Mart of Raju Patra (P. W. 3). The appellant was there in the shop of P. W. 3 and so, as directed by P. W. 21, P. Ws. 1 and 2 handed over the chalans and Rs. 20/- to the appellant who received them and told that the licences would be issued to them in due course. About a week after P. W. 21 told P. Ws. 1 and 2 that the chalans had been returned as they were not properly filled in and gave 2 other challans, which had already been filled in, and obtained the signatures of P. Ws. 1 and 2 on them. P. Ws. 1 and 2 state that after some days, P. W. 21 brought 2 receipts obtained from P. W. 3 (given to him by the appellant) and handed them over to them. After lapse of some days P. Ws. 1 and 2 asked about their licences but were told that these had not been received from the office. They waited for sometime but to no purpose and so informed P. W. 21 about it. P. W. 21 examined the receipts and told them that the receipt of the challans had been mentioned in the receipts and there was no reference to the amount received from them. So P. Ws. 1 and 2 reported the matter to the authorities.

As is clear, P. Ws. 1 and 2 are petty rustic dealers who do not know the procedure how licence fees are to be deposited and licence obtained. So they consulted P. W. 21 about it. P. W. 3 Raju Patra, the Cycle Mart owner, supports the case of P. Ws. 1 and 2 that they had handed over 2 challans with Rs. 20/- to the appellant in his shop and that is the evidence of P. W. 21 who corroborates P. Ws. 1, 2 and 3 on all material particulars. P. W. 21 is a collection agent of Chit Fund at Bhanjanagar. While going to his village he had to pass through village Chandipatna by the shop of P. Ws. 1 and 2 which are on the road side. Thus it is not very unlikely that P. Ws. 1 and 2 would seek the advice of P. W. 21 in this matter and the latter would also help them. The plea of the appellant is total denial of the entire transaction of receipt of money or chalan or granting receipts Exs. 4 and 5 and that the witnesses were deposing falsely to implicate him at the instance of Natabar Padhi and his supporters. Both the receipts Exhibits 4 and 5 are dated 15-4-1965 and Ext. 5 appears to be just a carbon copy of Ex. 4 embodying the same mistakes which have been scored through in both. P. W. 20 has stated that Exts. 4 and 5 are in the hand of the appellant but the appellant only admits that the pro forma and the signatures in these two exhibits are in his hand but neither the chalan Nos. nor the names of the parties. No such suggestion was given to P. W. 20 in cross-examination nor the appellant says who did or could have done it.

10. For perspicacity purpose to quote below Ext. 4.

Chalan No. 52

Office of the Sanitary Inspector Bhanj

anagar Block No. 218 P. H./65

dated 15th April, 1965.

To

Shri Biswanath Sahu

Chandi Patna.

I have received your deposited chalan sheet for your license as a retailor in the Village chandi Patna and forwarded to D. H. O. Ganjam for issuing license with my recommendation.

So your hereby Permitted to open your shop at a retailer until further order.

This license shall be in force for the calendar year ending i.e., december 31 of 1965.

Sd/- N. Patnaik

15-4-65

Sanitary Inspector

Bhanjanagar Block I.

N. B.: Your brass license will be issue to your after receipt same from D. H. O. Ganjam.

As already stated, P. W. 20 has deposed that the entire thing is in the handwriting of the appellant. There are certain indications to show that the statement of P. W. 20 is true whereas the plea of the defence is false. To mention a few, the word 'Chandi Patna' appearing in the address, has been written in the same manner in the body of the pro forma. The letters 'c' and 'h' have the same mannerism, pictorial appearance and slant, visible to a naked eye, which could also be read as 'handi Patna'. The letter 'P' has been written at both the places in the same manner in capital form and is the mannerism of the writer all through wherever the letter 'p' appears. Again when he admits the pro forma, it follows that he had received the 'deposited chalan' which means the money under the chalan had already been deposited and he received only the original copy (that is, payee's copy) that is, one-third of the entire sheet of the chalan. The letters 'ch' in the word 'chalan' bear the same mannerism as in the word 'Chandi Patna'. There is no corresponding entry in the Chalan Register maintained in his office and there is no recommendation to the District Health Officer, Ganjam, in favour of the parties for granting licence. The N. Bs. therefore ir Exs. 4 and 5 are false and so too the last, part of the pro forma that the licence is valid till the end of December, 1965. These facts are within the exclusive knowledge of the appellant and it was incumbent on him as to how Exs. 4 and 5 could be issued to P. Ws. 1 and 2 with his signatures and stamp, the recitals whereof are untrue and not borne out by record in his office or records maintained in the treasury deposed by the Sub-treasury Officer Rama Chandra Patnaik (P. W. 24), who states that no such amount had been deposited in the name of Biswanath Sahu (P. W. 1), but an amount of Rs. 5/- had been deposited in the name of Ananda Sahu (P. W. 2) on 26-6-65 under the Head of Account 'XXIV-P. H.' which was for the issue of food licence. From the above discussions-oral evidence, documentary evidence, and the absence of reasonable explanation from the appellant together with the non-production of his official records indicating forwarding of the so-called 'deposited chalans' of P. Ws. 1 and 2 to the District Health Officer, Ganjam, there is no escape from the conclusion that the appellant had in fact received Rs. 20/- with chalan from P. Ws. 1 and 2 (Rs. 10/- from each) but has misappropriated and converted to his own use Rs. 15/- and has deposited only a sum of Rs. 5/- on 26-6-65 out of Rs. 10/- paid to him by P. W. 2. The discrepancies in the evidence of P. Ws. 1, 2 and 3 vis-a-vis P. Ws. 20 and 21, have been explained by the learned judge as inconsequential with which I agree and, therefore, the argument advanced on behalf of the appellant on that score is not accepted.

11. Item 4 of the charge is that the appellant during the rainy season of 1965 approached Arjun Gouda (P. W. 7) of village Agajhola one mile away from Bhanjanagar, a hotel-keeper, and asked him to deposit Rs. 5/- to obtain a licence which he gave to the appellant and the latter granted a receipt (Ex. 6) dated nil. At that time P. W. 8 was in the hotel to take tea. The plea of the appellant is that he had not gone to the village nor had received any money, has not granted Ex. 6 (though he admits his signature in it) and that P. Ws. 7 and 8 are deposing falsely being in league with Natabar Padhi, Rama-chandra and B. Naik. P. Ws. 7 and 8 corroborate each other about the appellant asking for licence fee of Rs. 5/- which P. W. 7 paid and the appellant granted a receipt. There is nothing to disbelieve their statements. Ex. 6 was seized during investigation under Ex. 19. It is really intriguing that the appellant admits his signature below which is the official stamp with no date. A look at it would convince a layman that the entire thing has been written by one man and not that the signature is of a different person. P. Ws. 7 and 8, rustics as they are, are not likely to scrutinise for what the receipt was granted - whether in respect of money or the chalan - as it was granted by an officer in the line, P. W. 7 accepted it as genuine even though it was without any date and later it was found to be a receipt for receipt of chalan. P. Ws. 20 and 22 corroborate this transaction; but the learned Judge disbelieved their evidence and has not relied upon the evidence of P. W. 20 so far as the transaction is concerned but has accepted his evidence that Ex. 6 is in the appellant's hand. Both of them are vaccinators working under the appellant. The defence plea that his tour diary did not disclose a trip to Agajhola, which, as already indicated is a mile away from Bhanjanagar, cannot outweigh the prosecution evidence. P. W. 24 says that there is no such deposit in the treasury in the name of P. W. 7. In the result, I would hold that the finding of the learned Judge about this item of charge is correct and in fact the appellant received Rs. 5/- from P. W. 7 and misappropriated the same for his own use.

12. Item 7 of the charge was regarding receipt of Rs. 3/- from Banamali Das (P. W. 5) for granting him a licence. P. W. 5 stated that sometime in Bhadra of 1965 the appellant told him to deposit Rs. 5/- as he was running a hotel. He pleaded his poverty and paid him Rs, 3/- in the presence of Kashinath Padhan (P. W. 6). The appellant also granted a receipt Ex. 9 which was later seized during investigation. The appellant denies to have received any money from P. W. 5 and took the general plea as to how Natabar Padhi had arranged this witness against him. P. W. 20 has spoken to the fact that Ex. 9 is in the handwriting of the appellant excepting the name of Banamali Das. Obviously that name has not been written by the same man who is the author of Ex. 9. I am - in one with the learned Judge that taking advantage of the ignorance of P. Ws. 5 and 6 the appellant granted a receipt as if he had received a chalan and did not even give the date. This is the general pattern as has been seen in other cases. There is nothing to disbelieve the statements of P. Ws. 5 and 6, for they had no grudge against the appellant so as to join hands with Natabar Padhi and others. The Sub-Treasury Officer says that no such amount has been deposited in the name of P. W. 5 in the treasury. I would, therefore, hold that this charge has also been well proved against the appellant.

13. In the result, therefore, the point of law urged being unsustainable and the fact of having received and misappropriated Rs. 23/- in four instances from P. Ws. 1, 2, 7 and 5 having been proved beyond all possible doubts, there is no merit in this appeal. As such, the appeal is dismissed.


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