High Court of Odisha: "Petitioner Seeks Discharge from Criminal Prosecution-Challenging Lack of Inquiry and Exoneration in Disciplinary Proceedings
Category: Criminal Law
「 ✦ Content ✦ 」
FACTS OF THE CASE
The Petitioner was serving as a Joint Secretary in the Commerce and Transport Department, Government of Odisha. He had an unblemished service record till registration of the Vigilance case. On 30.06.2012 an F.I.R. was lodged against the Petitioner. The delay in the conclusion of the trial has been impacting the service career of the Petitioner adversely.Petitioner during his incumbency for the period from 09.03.2011 to 27.06.2011 as B.D.O.,Bargaon Block in connivance with the co-accused namely Kundan Kumar Agarwal, Proprietor of M/S Baba Dharsu Traders, Ujalpur, Sundargarh has committed criminal misconduct by showing undue official favour in purchasing 10,000 bags of Konark cement from the co accused mentioned above whichhas caused a pecuniary loss of Rs.2,05,300/- and on the equal amount of loss to the Government. The Petitioner has filed the criminal revision petition to set aside the order of November 17, 2020 which was passed by the Special Judge, Vigilence, Sundargarh.
ISSUES OF THE CASE
Whether the Petioner acted with a criminal intent or within his official duty?
Whether there was any actual loss to the government with the purchase?
LEGAL PROVISIONS
Section 239 of the Criminal Procedure Code (Cr.P.C.)- it gives power to the court to discharge the accused if there is no sufficient grounds against the accused to conduct a trial against him.
Section 227 of the Cr.P.C.:- it says that the Court must look into the evidence presented by the Prosecution and must do so before hearing the arguments of the defense.
Sections 397 of the Code of Criminal Procedure (CrPC)- it gives High Court the power to revise the orders passed by the subordinate courts as well as can direct the subordinate courts to alter its decisions.
Sections 401 of the Code of Criminal Procedure (CrPC)- it gives High Court the power to transfer the case to itself from a subordinate court or transfer it to another subordinate court or to withdraw the case.
Section 13(1)(d) of the Prevention of Corruption Act, 1988- it defines the criminal misconduct by a public servant and includes acts through which he causes loss to the government.
Section 19 of the Prevention of Corruption Act, 1988: it says that prior permission is required from the government to prosecute a government servant under this Act.
CONTENTIONS BY THE PETITIONER
The Petitioner says that there was no legal basis for filing an FIR against him by the Vigilance before conducting a preliminary inquiry against him. He says that he followed all the necessary protocols in procuring the cement and 249rs was the approved rate of cement per bag including all the costs and taxes. He also said that the purchase from the co-accused was because of urgency in the developmental work and to avoid any delays and therefore has no malafide intent in the purchase. He also mentions the letters from theOCL India Ltd. and the District Rural Development Agency (DRDA) which gave him the authority to purchase cement at a lower rate.
CONTENTIONS BY THE RESPONDENT
That it was with a malafide intention to procure the cement. The prosecution held that the court should look into the documents submitted by the prosecution before it looks into the arguments presented by the accused.
JUDGMENT
The higher court found that the charges which were in the vigilance case was similar to that of the disciplinary proceedings. The court held that the disciplinary hearing had already exonerated the Mr. Das on the same facts and as the criminal trial needs to prove facts beyond reasonable doubt as the disciplinary trial found insufficient proof to charge him it will also prove difficult for the prosection to do so. It also held that allowing the criminal trial again to continue would be an abuse of power.
ANALYSIS
This case highlights that there is no need for a second trial on the same facts if it was already exonerated. The court highlights the importance of fair disciplinary proceedings as well to avoid double jeopardy in cases.
CONCLUSION
The court discharged the Petitioner from the criminal proceeding under Section 239 Cr.P.C. and ruled in favour of the Petitioner and held that each party will bear his own costs in relation to this case.
OLQ is a Pan-India basis law firm connecting legal expertise nationwide.
WRITTEN BY: ADINA EVANGELINE G
