Jayanta Kumar Goswami vs State Of Orissa

Dr. A. K. Mishra, J

Heard learned counsel for the petitioner and the learned Special Counsel for Vigilance Department.

Prayer is made to quash the proceeding in Balasore Vigilance P.S. Case No.35 of 2000 corresponding to T.R. Case No.101 of 2007 pending in the

Court of learned Special Judge-Cum-Vigilance, Balasore as well as order of taking cognizance dated 22.6.2010 under Annexure-3.

The perusal of Annexure-3 reveals that it is not a cognizance taking order but an order framing of charge by learned Special Judge, Vigilance of the

offences under section 13(2) read with 13(1)(d)(ii) of Prevention of Corruption Act and under section 468/471/418/420/120-B of IPC.

It is not disputed as contended by learned Special Counsel for Vigilance that trial has already proceeded to the stage of completion of recording of

evidence of four witnesses.

Learned counsel for the petitioner submits that FIR was registered without the Governing Body resolution by the Sub-Collector, Bhadrak and 32

margin memos by audit were issued to Ex-Principal, not to the present accused for which the accused could not get chance to clarify the position and

the allegation of misappropriation is made basing upon the audit report which has already been set aside by this court vide judgment dated 4.7.2014 in

W.P.(C) No.22319 of 2011 reported in (2015 (I) ILR-CUT-1150); Jayanta Kumar Goswami vs. Governing Body of Akhandalamani College(+2) and

Ors.

Learned counsel for the petitioner also placed the Rule 31 of Orissa Education (Establishment), Recognition & Management of Private Colleges

Rule 1991 to contend that as per provision the President of the Governing Body is to ensure the implementation of the resolution of the Governing

Body and cannot act independently even to the extent of filing of FIR in a criminal case.

Learned Special Counsel for Vigilance repelled the above contention stating that FIR was lodged in fact by Inspector of Police, Vigilance, Bhadrak,

not by Sub-Collector and investigation was made independently which is to be proved not by the audit report alone. He further submits that the finding

in the administrative side with regard to audit report cannot be the basis to quash the criminal proceeding initiated under Prevention Of Corruption Act.

Having gone through the materials, i.e., FIR and charge-sheet filed in the backdrop of above contention made by both the counsel, I am of the

considered opinion that the order of charge is filed vide Annexure-3 in stead of cognizance order which is sought to be quashed in this proceeding. The

FIR was not lodged by the President of the Governing Body-cum-Sub-Collector, Bhadrak.

The trial is continuing to the extent of recording of evidence of four witnesses. As per law, the audit report cannot be the sole basis for conviction in

any criminal trial. The order of the framing charge dated 22.6.2016 does not disclose that the contention raised now was raised before the Trial Court.

While exercising jurisdiction under section 482, Cr.P.C. this court is not to make a meticulous analysis of the materials on record so as to arrive at the

finding of acquittal or conviction.

The materials on record being satisfactorily considered by the Trial Court to frame the charge, the contention which is urged here can at best be taken

as defence during trial.

In the judgment reported in (2019) 74 OCR (SC) 131; Sau. Kamal Shivaji Pokarnekar vs The State of Maharashtra it is held that:-

“6.Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the

complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal

offence or not.â€​

The F.I.R. having disclosed prima facie offence alleged, the principles enumerated in the decision reported in AIR 1992 SC 604: State of Haryana and

Ors. v. Ch. Bhajan Lal and others, to quash the proceeding, are not attracted.

Hence, I am not inclined to invoke the jurisdiction under section 482, Cr.P.C. to quash the proceeding.

Accordingly the CRLMC stands disposed of.