Orissa High Court
Binod Kumar Nayak vs State Of Odisha & Others … Opposite … on 23 December, 2024
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.526 of 2023 & IA Nos. 125, 126 & 127 of 2023 (An application under Articles 226 & 227 of the Constitution of India) Binod Kumar Nayak ... Petitioner -versus- State of Odisha & others ... Opposite Parties For Petitioner : Mr. H.S.Mishra, Advocate For Opposite Parties : Mr. N.Maharana, ASC (Vigilance) CORAM: HON'BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :23.09.2024 DATE OF JUDGMENT:23.12.2024 G. Satapathy, J.
1. This criminal miscellaneous petition under
Articles 226 & 227 of the Constitution of India by the
petitioner seeks for a direction to handover/transfer the
investigation in Sambalpur Vigilance PS Case No. 31 of
2022 and if necessary for fresh investigation/re-
investigation by any other competent Investigating
Agency or in the alternative to handover the case to
any other reputed officer of Vigilance Department other
CRLMP No.526 of 2023 Page 1 of 23
than OP No.3 to fresh investigate or re-investigate the
case by taking into account the facts stated in this
petition to find out truth of the allegation by issuing
appropriate writ of mandamus with exemplary cost and
damages against OP No.3.
2. The facts in concise are that the petitioner-
Binod Kumar Nayak was working as Block Development
Officer, Gudvela Block in the district of Bolangir at the
relevant time on 25.09.2022 and on that day, on the
allegation of one Gopal Behera by way of an FIR,
Sambalpur Vigilance PS Case No. 31 of 2022 was
registered against the petitioner for demand of illegal
gratification of Rs.1,80,000/- to provide him contract
for execution of proposed repair and maintenance work
of building of Gudvela Block. Accordingly, a trap was
laid on 26.09.2022 by the Vigilance officials along with
witnesses and the petitioner was allegedly caught while
receiving the illegal gratification and he was arrested
and forwarded to the Court for commission of offence
U/S. 7 of the Prevention of Corruption(Amendment Act,
CRLMP No.526 of 2023 Page 2 of 23
2018) with commencement of investigation in such
case which culminated in submission of charge sheet
against the petitioner for the said offence to stand his
trial in the competent Court.
2.1. According to the petitioner, the truth
is otherwise and he has been illegally framed in the
trap case because the complainant after finding his
allegation against the petitioner to be improbable,
changed/modified the FIR at the behest of OPNo.3, the
DSP Vigilance, Bargarh by substituting with another
report in active connivance with one Ashok Chandra
Dora, the Ex-Chairman of the Gudvela Block and the
husband of the then Chairperson of the said Block. It is
stated by the petitioner in this case that the said Ashok
Chandra Dora had taken a personal friendly loan of
Rs.2,00,000/- from him for construction one of his
Broiler Firm with approximate cost of Rs.1.5 Crores
and, accordingly, the said Ashok Chandra Dora called
the petitioner repeatedly in his mobile phone in the
morning of the relevant day of trap and requested the
CRLMP No.526 of 2023 Page 3 of 23
petitioner to meet him in the house of his brother
namely Aswini Dora to receive the said loan amount
and, accordingly, the petitioner along with one Sagar
Sahoo, Gram Panchayat Extension Officer, Gudvela
Block with Government driver namely Subash Tandi
reached to the house of Shri Aswini Dora at the
relevant time and entered into his official room along
with said Sagar Sahoo and they found the said Ashok
Chandra Dora alone in that room but, Ashok Chandra
Dora directed Sagar Sahoo to go outside of the said
room to wait and handed over a packet of Five Hundred
currency notes bundle to the petitioner towards
repayment of loan of Rs.2,00,000/- which was received
by him, however, five minutes thereafter, the Vigilance
team headed by OPNo.3 trapped him. It is also alleged
by the petitioner that Ashok Chandra Dora had also
clicked two to three photographs with the Vigilance
team in his mobile which was directed to be deleted by
one Susama Pasayat, the Inspector of Vigilance. At the
time of trap, OPNo.3 apprised the petitioner to have
CRLMP No.526 of 2023 Page 4 of 23
demanded 5% Personal Commission (PC) from the
complainant for two upcoming projects namely one
repair work of building of Block office with an estimate
cost of Rs.15,00,000/- and the other one is for repair of
extension of office chamber of Gudvela Block with
estimated cost of Rs.15,00,000/- in addition to demand
of Rs.30,000/- for the completed project Gavarsa Ghati
Concrete Road, but the petitioner intimated OPNo.3
that the said concrete road has already been completed
since long and payment thereon has already been
disbursed to the Executant-cum-Junior Engineer, Sri
Ambrit Meher and, therefore, the complaint against him
is without any basis, however, OPNo.3 informed him
that they had tried twice earlier to trap him, but only
could succeed on this occasion. According to the
petitioner, he cooperated with the investigation in
Vigilance case, but he was really victimized by the two
groups of ruling political parties. It is also stated by the
petitioner that on 26.09.2022 in the night, he was
brought from his residence at Bolangir to the Bargarh
CRLMP No.526 of 2023 Page 5 of 23
Vigilance office by OPNo.3 and on the next morning on
27.09.2022 he(petitioner) talked with DIG, Vigilance
and intimated about the entire conspiracy and his
prosecution without any basis and accordingly
requested the DIG to conduct an impartial enquiry
which was assured by the DIG, Vigilance. It is also
stated by the petitioner that on 27.09.2022 at about 11
AM the complainant came with about twelve persons
and attended the office of OPNo.3 and left at 2.30 PM
which would be evident from the CCTV footage of office
chamber of OPNo.3. According to the petitioner, after
his joining as BDO of Gudvela Block, he stopped the
margin of profit for earth and morum work incurring
displeasure of Sri Ashok Chandra Dora who asked him
to go on transfer for carrying on his illegal business and
the petitioner was threatened by said Ashok Chandra
Dora for not allowing work to his opponent group and
once the said Ashok Chandra Dora forced the petitioner
to countersign five projects, to which he denied and,
thereby, he was illegally framed in this case. It is,
CRLMP No.526 of 2023 Page 6 of 23
however, claimed by the petitioner that since he was
discharging duty honestly preventing the illegal
activities of the said Ashok Chandra Dora, he invited
the anger and wrath of Sri Dora who in connivance with
OP No.3 set up the complainant Gopal Behera and
foisted a false Vigilance case against him, but he had
never demanded any illegal gratification from the
complainant. It is further claimed by the petitioner, in
terms of Government guidelines project valued less
than Rs.2,00,000/- shall not go to the Chairperson for
counter signature, but said Ashok Chandra Dora
pressurized the petitioner not to route the file for the
project less than Rs.2,00,000/- in terms of law and
forced him to make payment at his level for which a
conspiracy was hatched by said Ashok Chandra Dora
with OPNo.3 to initiate a false case against him and,
therefore, the entire call records of the petitioner,
informant, Ashok Chandra Dora and OPNo.3 would
reveal a lot about truth to establish innocence of the
petitioner. On the aforesaid averments, the petitioner
CRLMP No.526 of 2023 Page 7 of 23
has filed this petition for the relief indicated in the
preceding paragraph.
2.2 In addition, the petitioner has filed IA
No.125, 126 and 127 of 2023 to direct OPNo.1 to
produce Call Detail Records (CDR) details of Mobile
phones of said Ashok Chandra Dora bearing Mobile
Nos.9938009962, 9437093280 and that of OPNo.3
bearing Mobile No.9437225073 and 7978301869 for
the period from 1st May, 2022 till 31st October, 2022 to
find out the conversation between the Ashok Chandra
Dora with Satyaban Mahananda and the frequency of
their talk over their mobile phones; to produce CDR
details of above mobile phones of Ashok Chandra Dora
and that of the informant with Mobile No.6370805995
and if any other mobile number used by the informant
for the same period and to produce the CDR details of
the phone numbers of the petitioner in his Mobile
Nos.9437327576 and 7008767988 and that of said
Ashok Chandra Dora for the self-same mobile number
for the same period.
CRLMP No.526 of 2023 Page 8 of 23
3. In the course of hearing, Mr.Himanshu
Sekhar Mishra, learned counsel appearing for the
petitioner has submitted that the petitioner has been
victimized because of his stance not to allow illegal
activity of Ex-Chairman Sri Ashok Chandra Dora who
being the husband of the then Chairperson of Gudvela
Block had time and again pressurized the petitioner to
do illegal act, but after joining of the petitioner, he had
stopped the corruption/bribe of 5% PC (Percentage) on
work as a token of illegal gratification and, thereby,
incurred wrath of said Ashok Chandra Dora and his
groups who were politically motivated and influenced
and also hell-bent upon to do work arbitrarily claiming
bills without executing any work. Mr. Mishra has further
submitted that since the petitioner was an honest
officer, he became a victim to the conspiracy of said
Ashok Chandra Dora with OPNo.3, complainant and
others which is palpable from the facts that on the date
of incident, the petitioner was called by said Ashok
Chandra Dora to his office to receive the friendly loan
CRLMP No.526 of 2023 Page 9 of 23
which he had extended to him for construction of
Broiler Firm and, accordingly, the petitioner was
illegally trapped. It is also submitted by Mr. Mishra that
one of the allegation against the petitioner for receiving
illegal gratification is for the project namely Gavarsa
Ghati Concrete Road which was completed much before
the alleged illegal trap and there was no occasion for
the petitioner to demand any illegal gratification for the
said work and in this situation, why the complainant
would pay any gratification to the petitioner on a
completed work, bill of which having already been
drawn and received by him. Mr. Mishra has further
submitted that the conspiracy between the said Ashok
Chandra Dora and the complainant along with OPNo.3
can be unearthed by calling for the CDR details of the
phone numbers of the petitioner and that of Sri Ashok
Chandra Dora, OPNo.3-Satyaban Mahananda and
informant Gopal Behera for the period 01.05.2022 to
31.10.2022. On the aforesaid submissions and
reiterating the averments taken in the IAs, Mr. Mishra,
CRLMP No.526 of 2023 Page 10 of 23
learned counsel for the petitioner has prayed to pass
order for directing a fresh or reinvestigation in the
matter by any impartial Investigating Agency like CBI
and also to direct OPNo.1 to produce the CDR details of
the phone numbers of aforesaid persons during the
period.
3.1. In reply, Mr. Niranjan Maharana, learned
Additional Standing Counsel for the Vigilance has
submitted that the accused has no right or authority
under the CrPC or any other statute to ask for further
or fresh or reinvestigation. Mr. Maharana also
submitted by taking this Court through the relevant
part of the charge-sheet and FIR that the petitioner in
order to get rid of the Vigilance case has come up with
the plea of malafide investigation, but fact remains that
the petitioner had demanded and accepted illegal
gratification from one Gopal Behera, who paid
Rs.1,80,000/- as a bribe to the petitioner who accepted
it and, thereby, was apprehended by the Vigilance
police resulting in Vigilance case and the present plea
CRLMP No.526 of 2023 Page 11 of 23
of the petitioner is at best a defence plea. Mr.
Maharana has further submitted that the plea of
receiving the amount towards repayment loan as
advanced by the petitioner to Ashok Chandra Dora is an
afterthought one, since the same has not been stated
by the petitioner at the relevant time of trap, so also
subsequently thereafter while filing bail petition before
the Court concerned or in the High Court and,
therefore, such plea cannot enure to the benefit of the
petitioner and the plea being afterthought, no fresh
direction for investigation is required in this case. In
summing up his argument, Mr. Maharana has prayed to
dismiss the criminal misc. petition.
4. In embarking upon a discussion in the
matter, it appears that the upshot of controversy and
prayer of petitioner lies in his claim for fresh
investigation or reinvestigation, but the principle under
which fresh investigation or reinvestigation can be
ordered or whether an accused can claim such relief as
CRLMP No.526 of 2023 Page 12 of 23
a right have been restated by the Apex Court in
following decisions;
4.1. In Preeti Singh v. State of U.P.; 2023
SCC Online Allahabad 1410, while answering a
question whether the accused person has any right or
hearing at the investigation stage or to question the
manner in which evidence is being collected by claiming
a direction for fair investigation, a Division Bench of
Allahabad High Court after surveying a catena of
decisions of Apex Court has held thus:-
“26. Thus, it is very much clear that at the
stage of investigation, the accused has no
right to be heard or she cannot forward to
claim fair investigation only on the ground
that according to her the matter was has
been wrongly handed over to Crime Branch
and simply for the reason that initially the
petitioner was informant and subsequently
she had been arrayed as accused in the
First Information Report in question. From
perusal of record of petition we do not find
any ground worth withdrawing the
investigation from the Crime Branch and to
transfer the same to some other agency in
view of the law as discussed hereinabove.
CRLMP No.526 of 2023 Page 13 of 23
4.2 In Romila Thaper & others v. Union of
India; (2018) 10 SCC 753, the Apex Court has held
thus:-
“30 xx xx xx xxx xxx the accused cannot
ask for changing the investigating agency,
or to do investigation in a particular
manner including for court-monitored
investigation.”
4.3 In Union of India & another vrs. W.N.
Chadha; 1993 SCC (Cri) 1171, the Apex has held
thus:-
“120. Xx xx The respondent who is a
named accused in the FIR has no locus
standi at this stage to question the manner
in which the evidence is to be collected.
However, it is open for the respondent to
challenge the admissibility and reliability of
the evidence only at the stage of trial in
case the investigation ends up in filing a
final report under Section 173 of the Code
indicating that an offence appears to have
been committed.”
4.4. In State through CBI vrs. Hemendhra
Reddy and another; 2023 SCC Online SC 515, the
Apex Court while recording conclusion at paragraph-83
of the judgment has held thus:-
CRLMP No.526 of 2023 Page 14 of 23
“83(v). There is nothing in the CrPC that
the Court is obliged to hear the accused
while considering an application for further
investigation U/S. 173(8) of CrPC.”
4.5. In C.B.I v. Rajesh Gandhi; (1996) 11
SCC 253, the Apex Court has held thus:-
“8. There is no merit in the pleas raised by
the first respondent either. The decision to
investigate or the decision on the agency
which should investigate does not attract
principles of natural justice. The accused
cannot have a say in who should
investigate the offences he is charged with
xx xx.”
4.6. In Anant Thanur Karmuse v. State of
Maharashtra; (2023) 5 SCC 802, the Apex Court in
paragraph-34 has quoted with approval the paragraph-
54 of the decision in Himanshu Kumar & others vrs.
State of Chhatisgarh and others; (2023) 12 SCC
592 wherein it has been held thus:-
“54. It has been held by this Court in CBI
Vrs. Rajesh Gandhi(supra) that no one
can insist that an offence be investigated
by a particular agency. We fully agree with
the view in the aforesaid decision. An
aggrieved person can only claim that the
offence he alleges be investigated properly,
but he has no right to claim that it be
investigated by any particular agency of his
choice.”
CRLMP No.526 of 2023 Page 15 of 23
4.7 In Vinubhai Haribhai Malaviya and
others Vrs. State of Gujarat and another; (2019)
17 SCC 1, the Apex Court in paragraph-42 has held
thus:-
“42.xx xx xx To say that a fair and just
investigation would lead to the conclusion
that the police retain the power, subject, of
course, to the Magistrate’s nod under
Section 173(8) to further investigate an
offence till charges are framed, but that the
supervisory jurisdiction of the Magistrate
suddenly ceases midway through the pre-
trial proceedings, would amount to a
travesty of justice, as certain cases may cry
out for further investigation so that an
innocent person is not wrongly arraigned as
an accused or that a prima facie guilty
person is not so left out. There is no
warrant for such a narrow and restrictive
view of the powers of the Magistrate,
particularly when such powers are traceable
to Section 156(3) read with Section 156(1),
Section 2(h) and Section 173(8) CrPC, as
has been noticed hereinabove, and would
be available at all stages of the progress of
a criminal case before the trial actually
commences. It would also be in the
interest of justice that this power be
exercised suo motu by the Magistrate
himself, depending on the facts of each
case. Whether further investigation
should or should not be ordered is
within the discretion of the learned
Magistrate who will exercise suchCRLMP No.526 of 2023 Page 16 of 23
discretion on the facts of each case and in
accordance with law”.
5. From an analysis of the precedents as laid
down by the Apex Court in the decisions referred to
above, it can be certainly said that the accused cannot
ask as of right for fresh or further investigation or
reinvestigation in a particular matter or manner. It is
also clear that the accused has no locus standi to
question the manner in which evidence is to be
collected, but he has right to challenge the admissibility
and reliability of the evidence only at the trial in case
the investigation resulted in submission of final form
indicating that an offence appears to have been
committed by the accused. The accused cannot have
any say as to who should investigate the offences with
which he is charged nor can it be claimed as a matter
of right by the accused to conduct the investigation in a
particular manner. It is also equally true that there is
no provision in the statute granting any right to the
accused to ask for re-investigation or further
investigation, no matter CrPC provides for further
CRLMP No.526 of 2023 Page 17 of 23
investigation U/S.173(8) of the CrPC, but the
Magistrate competent to receive report U/S.173(2) of
the CrPC and is empowered to take cognizance of
offence on such police report may ask for further
investigation U/S.173(8) of the CrPC if he is not
satisfied with the result of investigation or he thinks it
in the interest of justice that some further material
which is available, but could not be collected by the
Investigating Agency. This is the discretion granted to
the Magistrate by the statute.
6. Viewing the claim of the petitioner for
further/re/fresh investigation in the light of averments
made in the criminal miscellaneous petition, it appears
that the petitioner has averred at paragraph-19 that
said Ashok Chandra Dora was unhappy and displeased
with the petitioner and asked the petitioner to go on
transfer as his illegal business is hampered, but on the
other hand, the petitioner takes a contradictory plea
that he had advanced a friendly loan of Rs.2,00,000/-
to Ashok Chandra Dora for construction of one of his
CRLMP No.526 of 2023 Page 18 of 23
project of Broiler Firm with approximate cost of Rs.1.5
Crores in paragraph-5 of the petition. If a person is
aggrieved and unhappy with the other, how come the
said person takes a friendly loan from the later? It is
also equally important that the petitioner has averred in
the petition that said Ashok Chandra Dora had
threatened him. What is significant is that how come a
Government official would extend a friendly loan to a
person who is not having good relationship with him
and constantly threatening him and that too, when the
loan was taken has not been stated by the petitioner in
his petition. It is also stated by the petitioner in
paragraph-20 of the petition that neither he talked with
the informant Sri Gopal Behera physically nor over
phone at any point of time. In the counter affidavit by
the department at paragraph-12, it is claimed that
there are telephonic conversation between the
petitioner and the complainant which is of course
subject to proof. It is, however, averred by the
petitioner in paragraph-9 of IA No.125 of 2023 that in
CRLMP No.526 of 2023 Page 19 of 23
view of the averments made in the main petition, the
petitioner strongly believes that Sri Ashok Chandra
Dora, must have contacted Satyaban Mahananda, the
OPNo.3 over phone for number of times from
01.05.2022 to 31.10.2022, but in fact, no specific
averments have been made in the main petition in this
regard. It is also equally important that at the time of
filing of the main petition, the petition to call for the
CDR details have not been filed, but subsequently it
was filed.
7. It is also equally true that the petitioner
seeks for a direction for summoning of CDR of Ashok
Chandra Dora and OPNo.3, but how he could know
about the conversation between them over phone. At
the same time, it also relevant to note that summoning
of call details of other person would definitely an
intrusion into the privacy of such person which is not
permissible, unless there is prima facie material to
show that the same has bearing in the matter inasmuch
as right to privacy is a right to be protected and it
CRLMP No.526 of 2023 Page 20 of 23
cannot be tinkered lightly. So far the claim of the
petitioner for trapping him illegally, it can be
ascertained from the witnesses to be examined in the
trial of the case or from the persons according to the
petitioner have accompanied him to such place in the
course of defence evidence. What is significant is that
the petitioner in his reply to the counter affidavit at
paragraph-17 has stated that the petitioner as Block
Development Officer has to receive calls from different
persons, but his CDR will show that the petitioner had
never called the complainant Gopal Behera. However,
the complainant might have called to the petitioner as a
part of conspiracy which itself negate his plea taken in
paragraph-20 of the main petition that the petitioner
has never talked with the complainant over phone.
8. On a careful analysis of the aforesaid
discussion together with the law laid down by the Apex
Court in the decisions referred to above, this Court is of
the considered opinion that the claim of the petitioner
for fresh or reinvestigation is untenable nor is there any
CRLMP No.526 of 2023 Page 21 of 23
necessity for further investigation. On the other hand,
the petitioner has been trapped for receiving illegal
gratification on the allegation of the informant Gopal
Behera and a Vigilance case has been registered
against him which ultimately ended in charge-sheet,
but at the time of trap the petitioner has never taken
the plea as aforesaid in the main petition which is
evident from the detection report prepared immediate
after the trap. It is, however, true that the petitioner
can well establish his plea in the course of trial of the
Vigilance case by leading independent evidence or
cross-examining the witnesses, but prima facie there is
no justification at this stage to order any
reinvestigation or fresh investigation in the matter.
Further, this Court is not convinced on the analysis of
the averments of the petitioner to direct OPNo.1 to
produce the CDR details of the concerned phone
numbers and, thereby, the IAs filed seeking for a
direction to produce the CDRs of the concerned persons
merits no consideration and accordingly, rejected.
CRLMP No.526 of 2023 Page 22 of 23
Consequently, no ground is made out by the petitioner
to persuade this Court to exercise its jurisdiction under
Articles 226 and 227 of Constitution of India to
interfere in the matter.
In the result, the writ petition being devoid
of merit stands dismissed on contest, but in the
circumstance, there is no order as to costs.
(G. SATAPATHY)
JUDGE
Orissa High Court, Cuttack,
Signature Not Verified
rd
Dated the 23 day of December, 2024/Kishore
Digitally Signed
Signed by: KISHORE KUMAR SAHOO
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 23-Dec-2024 16:56:08
CRLMP No.526 of 2023 Page 23 of 23