Binod Kumar Nayak vs State Of Odisha & Others … Opposite … on 23 December, 2024

0
18

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 such

CRLMP 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



Source link

LEAVE A REPLY

Please enter your comment!
Please enter your name here