Orissa High Court
Binod Bihari Dash vs State Of Orissa (Vigilance) ……. … on 4 March, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.584 of 2022
(In the matter of an application under Section 397 read with Section 401
of the Criminal Procedure Code, 1973)
Binod Bihari Dash ....... Petitioner
-Versus-
State of Orissa (Vigilance) ....... Opposite Party
For the Petitioner : Mr. Devashis Panda, Advocate
Mr. Amit Pattnaik, Advocate
For the Opp. Party : Mr. Sangram Das,
Standing Counsel (Vigilance)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 17.09.2024 : Date of Judgment: 04.03.2025
S.S. Mishra, J. The petitioner is aggrieved by the order dated 18.10.2022 passed
by the learned Special Judge (Vigilance), Balangir in CTR Case No.13
of 2018, whereby his application under Section 239 of the Cr. P.C.
praying for discharge from the case has been turned down. During
pendency of the present petition learned trial court by its order dated
20.12.2022 annexed as Annexure-1/1 to I.A. to the consolidated petition
framed the charges. Therefore, the petitioner converted the CRLMC to
that of Revision Petition and challenged the charge order as well.
2. The F.I.R. being CID CB, Odisha, Cuttack P.S. Case No.18 of 2014
was registered on 01.09.2014, inter alia, alleging as that on 04.02.2013,
the Collector of Bolangir formed a Recruitment Committee for
overseeing exams for various posts. The committee, chaired by the
Collector, included key officials like Miss Aneeta Panda (Dy. Collector)
as Convener. The Secretary of the Board of Secondary Education,
Odisha prepared the question papers, which were stored in the District
Treasury. The written exam for R.I., A.R.I., and Amin posts was
conducted on 09.06.2013 at two centers, with Sub-Collectors as Center
Superintendents. 335 applicants appeared in the written examination for
R.I., and 795 for A.R.I. & Amin. After the exam, the papers were kept in
the Collector's custody, with Niranjan Tripathy, Head Clerk, in charge of
the room. The computer practical test was conducted on 12.06.2013 and
13.06.2013
, with various officials overseeing the valuation process.
However, no coding system was applied to evaluate the papers. During
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the inquiry, it was found that many arithmetic papers had the tampered
marks, particularly where candidates secured 100 marks, such as S.C.
Nayak, N. Pradhan, R.Putel, R.K. Bagh, and S. Mallik. Additionally one
S. Kalsai’s marks were altered from 2 to 93. Tampering was also found
in the tick marks in the Question-cum-Answer booklets, indicating
significant manipulation in the examination process.
3. The matter was investigated by the CB, CID and the charge sheet was
filed on 31.03.2018 for the alleged commission of the offences
punishable under Sections 13(2) r/w Section 13(1)(d) of the P.C. Act r/w
Sections- 409/468/467/471/120-B of the IPC against as many as 45
accused persons. The present petitioner has been arrayed as the accused
No.4 in the chargesheet. The precise allegation against the present
petitioner is that, he has been a party to the manipulation being done by
the principal accused Debaraj Mishra, the then Collector, Balangir.
4. The petitioner moved an application under Section 239 of the Cr.P.C.
seeking discharge from the offences on the ground that, even if the
prosecution version as has been emanating from the charge sheet un-
controvertedly taken at its face value, no case under any provisions of
Page 3 of 14
law against the petitioner is made out, which having been rejected on
18.10.2022, he preferred the present revision. Against that order and
since during pendency of the Criminal Revision, learned trial court by
order dated 20.12.2022 framed charges against the petitioner and others,
I.A. No.138 of 2023 was filed for amendment of the revision and
bringing the order framing charges into the record which was allowed on
02.07.2024.
5. The petitioner has urged various points in his application. Perusal of
the application indicates that the application was an exhaustive one. The
petitioner attempted to demonstrate from the record that none of the
offences are made out against him. While dealing with the said
application, the learned trial Court by the impugned order dated
18.10.2022, rejected the same without adverting to the contentions raised
by the petitioner and mechanically dismissed the same. The only
reasoning given by the learned Court below is reflecting in the following
paragraph of the impugned order, which reads thus:
“Perused the case record. It is found that charge sheet has been
placed against the above accused persons and other U/s 13(2) r/w
13(1)(d) of the P.C. Act read with Sections 465/471/477-A/120-B ofPage 4 of 14
the IPC. The F.I.R., charge sheet, statement of witnesses recorded U/s
161 Cr.P.C. and other materials including documents filed in this case
would go to show that the accused Collector namely Debaraj Mishra
and other accused persons namely Anita Panda, B.B.Dash, L.Mundri,
R.N.Suna and B.Maharana and others conducted the recruitment
examination for some posts of R.I., ARI and Amins and in this process
they have adopted corrupt practices and further manipulated and
forged marks and documents and thereby facilitated underserved
candidates for the post as aforesaid. The materials available on
record prima facie reveals sufficient grounds regarding commission of
the aforesaid offences by the above accused persons. The grounds for
discharge shown by the respective accused persons appear to be their
defence plea which can only be answered and settled in a regular trial
after taking evidence and not at the very outset of hearing,
particularly at the stage of framing of charge. In view of the above, it
appears that the aforesaid applications filed by the respective accused
persons do not have any merit and therefore, stand rejected. Put up on
11.11.2022 for framing of charge.”
6. Mr. Devashis Panda, learned counsel for the petitioner has taken me
to the charge sheet to point out that the petitioner, who alleged to have
evaluated the answer sheets of the “Odia” subject is admittedly not
manipulated and is not under the scanner rather it is the Arithmetic,
Computer and G.K. paper are allegedly manipulated. He has also pointed
out that it is the then Collector, who has compelled the petitioner to sign
on the dotted lines. This is also reflecting from the charge sheet. He has
submitted that the essential ingredients to constitute the offence of
forgery are that one must have sign, seal or execute the documents or
any part of it dishonestly or fraudulently with an intention of causing it
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to be believed that such document is made by a person in authority or
one who without lawful authority dishonestly or fraudulently by
cancellation or otherwise alters a document or an electronic record in any
material part thereof. In the present case, so far as the petitioner is
concerned, there is no direct role ascribed to him alleging his
involvement. Rather, on the contrary, the evidence so collected by the
I.O. makes out no case against the petitioner. Similarly, none of the
ingredients for criminal conspiracy is also made out, as there is no
evidence of meeting of mind preceding the crime. On the contrary, the
I.O. has collected the evidence that the petitioner had no clue about the
fact that he was the part of the committee. Mr. Panda, learned counsel
has relied upon the Judgment of the Hon’ble Supreme Court in the case
of Amit Kapoor vs. Ramesh Chander reported in (2012) 9 SCC 460 and
submitted that at the time of framing of the charges, the Court is not
concerned with the proof and upon careful perusal of the materials
placed there, strong suspicion in the Court’s mind that the accused has
committed the offence which if put to trial, could prove him guilty, the
Court would be justified in proceeding with the trial by framing the
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charge. However, in the present case, taking into the prosecution story,
even the scope of suspicion against the petitioner does not arise.
7. Similarly, Mr. Panda, learned counsel for the petitioner relied upon
the judgment of the Hon’ble Supreme Court M.E. Shivalingamurthy vs.
Central Bureau of Investigation, Bengaluru, reported in (2020) 2 SCC
768. By relying upon the earlier judgment in the case of P. Vijayan vs.
State of Kerala and another, reported in (2010) 2 SCC 398, the Hon’ble
Supreme Court has discerned the following principles:
“17.1. If two views are possible and one of them gives rise to
suspicion only as distinguished from grave suspicion, the trial
Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge
at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence
would consist of the statements recorded by the police or the
documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to
prove the guilt of the accused, even if fully accepted before it is
challenged in cross-examination or rebutted by the defence
evidence, if any, “cannot show that the accused committed offence,
then, there will be no sufficient ground for proceeding with the
trial”.
17.5. It is open to the accused to explain away the materials giving
rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total
effect of the evidence and the documents produced before the court,
any basic infirmities appearing in the case and so on. This,
however, would not entitle the court to make a roving inquiry into
the pros and cons.
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17.7. At the time of framing of the charges, the probative value of
the material on record cannot be gone into, and the material
brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and
refusing to discharge the accused.”
Relying upon the aforementioned settled principle of law and by
reading out the allegations made by the prosecution in the charge sheet,
Mr. Panda, learned counsel for the petitioner submits that, the learned
trial Court has clearly failed in appreciating the aforementioned
contentions raised by the learned counsel for the petitioner seeking
discharge as well as charges framed against the petitioner vide order
dated 20.12.2022, which according to the learned counsel is not
sustainable in law and facts.
8. Mr. Das, learned Standing Counsel for the opposite party-Vigilance
Department, on the contrary, submitted that the learned defence counsel
has been attempting to persuade this Court to appreciate the entire
material placed on record through the charge sheet, which is not
permissible at this stage. The allegation made in the charge sheet proves
the complicity of the petitioner. Therefore, at this stage, evaluating the
entire material form part of the charge sheet and discharging the
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petitioner may not be coming under the jurisdiction of this Court under
Section 482 Cr. P.C. and there was no error in framing charges against
the petitioner after his petition for discharge was rejected.
9. I have taken into consideration the rival submissions made by both
the parties at the Bar and in the light of the submissions, I attempted to
venture into the allegation made by the prosecution in the charge sheet
against the petitioner. The relevant part of the charge sheet connecting to
the petitioner is necessary to be reproduced here below:
“As per record available it is found that again a Recruitment
Committee was constituted vide Order No.321, dt-04.02.2013, under
the signature of Sri Debaraj Mishra. In this committee Sri Mishra,
Collector was the Chairman and (1) Miss. Aneeta Panda, the then
Deputy Collector, Revenue Section, Collectorate, Bolangir, (2) Sri
Binod Bihari Dash, the then BDO, Sadar Block, Bolangir, (3) Sri
Raghunath Mundary, the then BDO, Puintala Block (4) Sri
Raghunath Suna, the then BDO, Saintala block and (5) the DWO,
Bolangir were the members. Records also revealed that this order of
the Collector has been communicated to all the members vide Memo
No. 322/Estt., dtd. 04.02.2013. But none of the above 05 members
agreed to have received memo No.322/Estt., dtd. 04.02.2013. Even
they denied having any knowledge about formation of such
committee till 21.06.2013 evening. The concern files also revealed
that the order has been passed directly by the Collector. No note
sheet has been generated by the Dealing Assistant, nor has it been
routed through the Head Clerk and the Establishment Officer.
Further, the seized “Letter Issue Register” of Establishment section
revealed that the issue numbers 321 (Order of formation of
Recruitment Committee) and 322 (memo) have been inserted at page
46 latter on through manipulation. The seized Peon Book also
proved that no such letter has been served upon the members. FromPage 9 of 14
the above it is clearly proved that Order No.321 has been
manufactured latter on to threw responsibility on others. …
… Further order vide No.857/Res. Dt-10.06.2013 was passed by
Sri Mishra, Collector, Bolangir in which Sri Rathunath Mundary,
BDO, Puintala Block, Sri Ripunath Suna, BDO, Saintala block and
Sri Binod Bihari Dash, BDO, Sadar Block were directed to act as
“officer for valuation” and the date of valuation was fixed from
14.06.2013 to 16.06.2013. So also 11 Ministerial staffs were deputed
to assist in valuation work. No specific instruction/direction/order
was passed by the Collector in those orders to the ministerial staffs
to evaluate the answer sheets. Due to Raja Sankranti on 14.06.2013
no evaluation work was done.
On 15.06.2013 at about 8 AM when the deputed 03 OAS
officers and ministerial staff arrived for evaluation work they found
that all the answer sheets, which were received in sealed covers,
were in open condition. Even the sealing materials were not
available which proved that the sealed answer pockets have been
opened much before evaluation date. Sri Mishra, Collecor directed
03 OAS officers to evaluated the “Odia” papers only. When both
the OAS officers were evaluating the Odia papers, the answer sheet
of Arithmetic, General Awareness and computer theory were
supplied to the ministerial staffs and they started evaluating the
same with the help of the model answer sheet (Scoring Key),
provided by the Collector. While evaluating the answer sheets the
OAS officers complained as to when coding system was provided in
the question paper, why the same has not been done so. On this the
accused Collector expressed his displeasure and told that “this is
none of your business”. Further the ministerial staffs also detected
massive manipulations in the Arithmetic, GK and computer theory
papers. They found most of the papers have been corrected latter on.
The wrong tick marks available in the answer sheets have been
corrected massively and tick marks in the right boxes are available
against those wrong answers. So the ministerial staffs immediately
brought this fact to the knowledge of the accused Collector who was
present there inside the hall. On this Sri Mishra, Collector directed
them to allow mark even if manipulation is there in the Answer
Sheet. Sri Nlranjan Tripathy, Head Clerk also intervened into the
matter and also directed the ministerial staffs to allow marks if tick
marks are available on the right answer boxes, even if the same hasPage 10 of 14
been corrected. Accordingly they awarded marks on all papers
including the manipulated papers. After about half an hour,
Collector asked the OAS officers to sign on those answer sheets
which are being evaluated by the Ministerial staffs. As the OAS
officers denied, Sri Mishra, Collector verbally directed the
ministerial staff to sign on the papers which are evaluated by them.
Some of the Answer Sheets were also evaluated by Sri Niranjan
Tripathy, Head Clerk and Sri Arabinda Khamari, PSO to Collector.
As per direction of Sri Tripathy, in presence of the Collector, Miss
Sikharani Bhoi, Miss Jindiarani Barik and Miss Soudamini Sahu put
their signature on those answer sheets, though they had not
evaluated the same. Sri Niranjan Tripathy and Sri Arabinda
Khamari, PSO to Collector have evaluated most of the GK answer
sheets and those three lady Jr. clerks signed those papers.
… 8. That actually a Selection Committee should have been formed
and its members should have been allowed to be involved in each
stages of recruitment. They should have been allowed to prepare or
remain present at the time of preparation of the general tabulation
sheet, category wise tabulation sheet, category wise merit/selection
list etc. Before giving final touch to the selection list they should
have re-checked all documents of the selected candidates starting
from their application forms and they the final proceeding should
have been prepared by them after discussing tit bit of the process
with the Collector-cum-Chairman.
… 14. Letter No.321/Estt. Dt. 04.02.2013 under the signature of
accused Collector related to formation of Recruitment Committee is
found to be manipulated. Further its memo vide No.322/Estt. Dt.
04.02.2013 has not been served upon the members. This order has
been prepared latter on to threw mud on the head of the members of
Recruitment Committee. This type of behavior on the part of one
Collector clearly revealed that he was fully aware of the alleged
offence committed in the recruitment process. …
… 18. Statements of all the evaluators and the ministerial staffs well
proved that the Collector himself was present throughout the
evaluation which was conducted in the hall of EOC where the
almirah, containing the answer sheet in sealed pockets, was kept.
When the three evaluators (OAS officers) objected as to why coding
has not been done, the Collector has expressed his displeasure onPage 11 of 14
them and he directed them to simply evaluate, as coding is none of
their business. It is the chairman who is responsible for everything.”
10. Reading of the aforementioned portions of the charge sheet makes it
abundantly clear that it is the Collector, the principal accused, may be
responsible for commission of the offences of manipulation of the
examination process. The petitioner, who alleged to have evaluated the
Odia paper is not found to have manipulated those answer scripts. It has
also come on record that although the petitioner was a member of the
Evaluation Committee, but the committee was formed by the then
Collector behind the back of the petitioner and it was not even
communicated to them. It has also come on record that the petitioner has
objected to the non-coding of the answer sheets to which the then
Collector has asked the evaluator to carry on his instruction being a
direction and has also said that this is none of their business to question
his authority. The Collector appears to have forced the petitioner and
other evaluators to go ahead with the evaluation process even if the
petitioner and the other attending Officers involved in the evaluation
process at the threshold of the manipulation. It has also come on record
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that the then Collector has manipulated the letter constituting the
recruitment committee (to which the present petitioner is one of the
members) only to get out of the responsibility and unnecessarily roped in
the present petitioner and other officers.
11. Even after having found the aforementioned facts on record, the
I.O. went ahead and filed the charge sheet against the then Collector as
well as all the members of the so-called Recruitment Committee. The
other materials are also available on record which needs to be delved
upon so as to ascertain as to whether the present petitioner is indeed had
any complicity in the entire case. The petitioner has very categorically
highlighted all the points in his application under Section 227/239 of the
Cr.P.C. seeking discharge. Surprisingly, the learned Trial Court has not
dealt with any of the contentions raised by the petitioner, rather passed a
vague order without adverting to the materials available on record and
later on framed charges against the petitioner. Therefore, it has become
imperative for this Court to relegate the matter to the trial Court to delve
upon all the issues raised by the petitioner in his application for
discharge and the point urged by the petitioner before this Court.
Page 13 of 14
12. Accordingly, the CRLREV is allowed and the impugned order
dated 18.10.2022 and the consequential order dated 20.12.2022 passed
by the learned Special Judge (Vigilance), Balangir in CTR Case No.13
of 2018 are quashed qua the petitioner. The matter is remitted back to the
trial Court. The trial Court is directed to decide the application of the
petitioner seeking discharge afresh on its own merit without being
influenced by the observations made by this Court.
13. The CRLREV is disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 4th of March, 2025/ Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY Page 14 of 14
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 11-Mar-2025 10:03:08
