The State Of Odisha vs Pratima Mohanty

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1455­1456 OF 2021

STATE OF ODISHA …Appellant

Versus

PRATIMA MOHANTY ETC. …Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court of Orissa

dated 04.09.2019 passed in Criminal Miscellaneous

Application No.3177 of 2017 and Criminal Miscellaneous

Application No.4804 of 2015 by which the High Court has

allowed the said applications under Section 482 of Cr.P.C.

and has quashed the criminal proceedings against the

Signature Not Verified Digitally signed by R private respondents herein ­ original accused Nos. 4, 5 and Natarajan Date: 2021.12.11 16:22:02 IST

3 – Smt. Pratima Mohanty, Shri Prakash Chandra Patra and Reason:

1

Shri Rajendra Kumar Samal, the State of Odisha has

preferred the present appeals.

2. That an FIR was lodged by the Deputy Superintendent

of Police, Vigilance, Vigilance Cell Unit Office, Bhubaneswar

before the Superintendent of Police, Vigilance, Bhubaneswar

Division, Bhubaneswar alleging inter alia that on

preliminary enquiry it was found that certain public

servants occupying crucial positions in Bhubaneswar

Development Authority (hereinafter referred to as ‘B.D.A.’)

and in the Housing and Urban Development Department,

Government of Odisha (hereinafter referred to as, ‘H.&U.D.

Deptt.’) surreptitiously distributed prime plots in

Commercial Complex District Centre, Chandrasekharpur,

Bhubaneswar. It was alleged that in pursuance of the

criminal conspiracy and by abusing their official positions,

the officials of the B.D.A. and of the H.&U.D. Deptt.,

Government of Odisha, surreptitiously distributed prime

plots. That at the relevant time the original accused No.4 ­

Smt. Pratima Mohanty was serving as Steno to Vice­

Chairman, B.D.A. Original accused No.5 ­ Shri Prakash

Chandra Patra was serving as Jr. Assistant Allotment

2 Section, B.D.A and original accused No.3 ­ Shri Rajender

Kumar Samal was the Dealing Assistant, Allotment Section

­ II, B.D.A. and Personal Assistant to Minister, Housing and

Urban Development (original accused No.6). Apart from the

criminal conspiracy raised by all the accused persons it was

further alleged that there was no advertisement in providing

opportunity to general public regarding availability of B.D.A.

plots for sale and their sale prices. It was alleged that

keeping the general public in dark, the public servants in

B.D.A. (accused) who had access to such information as

insiders, distributed the prime plots among themselves or

their relatives and that too at minimal rates as compared to

the prevalent rates in the area and thereby causing undue

pecuniary advantage to the allottees and corresponding loss

to the B.D.A. and the public exchequer without any public

interest.

2.1 It was further alleged that the wrongful loss caused to

the B.D.A. was to the tune of Rs.30,27,849.80 and

Rs.71,57,055.00. Therefore, it was alleged that all the

accused persons have committed the offences under Section

120B IPC and Section 13(2) read with Section 13(1)(d) of the 3 Prevention of Corruption Act, 1988 (hereinafter referred to

as ‘the Act’). The FIR was numbered as PS Case No.31 of

2005. Since all the accused persons were Government

servants working in B.D.A., Bhubaneswar, sanction orders

for prosecution were obtained. After conclusion of the

investigation, the investigating agency filed the charge­sheet

against all the accused persons along with the then

Minister, H.&U.D. Deptt. on the accusation that they had

entered into criminal conspiracy and committed criminal

misconduct by abusing their official position showing undue

official favour to their relatives and allowed illegal pecuniary

advantage to the allottees in allotting 10 plots. As a result,

B.D.A. sustained huge loss and thereby making the accused

liable for the offences under Section 13(2) read with Section

13(1)(d) of the Act and Section 420 read with Section 120B

IPC. Five accused namely Shri Bibhuti Bhushan Ray, Shri

Parsuram Biswal, Smt. Pratima Mohanty, Shri Rajendra

Kumar Samal and Shri Prakash Chandra Patra approached

the High Court by way of Criminal Miscellaneous

Applications Nos.3177 of 2017 and 4804 of 2015 and

4 prayed to quash the criminal proceedings against them in

exercise of powers under Section 482 Cr.P.C.

2.2 By impugned common judgment and order the High

Court has partly allowed the aforesaid applications and has

quashed the criminal proceedings against Smt. Pratima

Mohanty (original accused No.4), Shri Prakash Chandra

Patra (original accused No.5) and Shri Rajendra Kumar

Samal (original accused No.3) mainly on the ground that the

said accused have not dealt with the allotment file in any

manner and there is no material that any of these accused

had influenced any co­accused or any officer of B.D.A. or

H.&U.D. Deptt. for getting the plots illegally in favour of

their family members. It was also further observed that

there is no material on record that these accused acted with

a pre­concert mind and they were in criminal conspiracy

with the other co­accused to get the vacant plots.

2.3 Feeling aggrieved and dissatisfied with the impugned

common judgment and order passed by the High Court

quashing the criminal proceedings against the private

respondents herein ­ original accused Nos.4, 5 and 3 for the

5 offences under Section 13(2) read with Section 13(1)(d) of

the Act and Section 420 read with Section 120B IPC, the

State has preferred the present appeals.

3. Learned Counsel appearing on behalf of the appellant –

State has vehemently submitted that in the present case the

High Court has erred in quashing the criminal proceedings

for the offences under Section 13(2) read with Section 13(1)

(d) of the Act and Section 420 read with Section 120B IPC in

exercise of powers under Section 482 Cr.P.C.

3.1 It is submitted that while quashing the criminal

proceedings against the respondents – accused the High

Court has exceeded its jurisdiction vested under Section

482 Cr.P.C.

3.2. It is submitted that the High Court has not at all

appreciated and considered the fact that at the stage of

considering the application under Section 482 Cr.P.C., the

minute details of the case are not required to be gone into at

all. It is submitted that in the present case it was found

that the allotment of the 10 plots were made by the accused

in connivance with each other arbitrarily and the plots were 6 allotted to the relatives of the accused – public servants. It

is submitted that no advertisement was issued by the

B.D.A. inviting the applications from intending purchasers.

The accused – officers deliberately concealed the matter

from the general public and thus avoided competition. It is

submitted that it was found that on the undated

applications the plots were allotted to the relatives of the

accused herein and public servants. It is submitted that

therefore, the First Information Report was filed by the

Vigilance Cell against the accused for the aforesaid offences.

It is submitted that after a thorough investigation a charge­

sheet has been filed before the learned Special Judge

(Vigilance), Bhubaneswar. It is submitted that having found

prima facie case and being satisfied that a case for the

offences under Section 13(2) read with Section 13(1)(d) of

the Act and Section 420 read with Section 120B IPC was

made out, the learned Special Judge (Vigilance),

Bhubaneswar has taken cognizance. It is submitted

therefore the High Court ought not to have exercised the

powers under Section 482 Cr.P.C. and not ought to have

quashed the criminal proceedings.

7 3.3 It is submitted that as such the High Court quashed

the criminal proceedings by scrutinising the FIR/material

on record in detail as if the High Court was conducting a

mini trial which is not permissible at the stage of exercising

the powers under Section 482 Cr.P.C. It is submitted that

the aforesaid approach is wholly impermissible as per the

law laid down by this Court in a catena of decisions.

3.4 It is further submitted that even otherwise while

quashing the criminal proceedings the High Court has not

at all appreciated and considered the fact that the allegation

was of hatching a criminal conspiracy by the public

servants who all were connected one way or the other with

allotment of the plots in the discretionary quota and that

the allegations were for the offences under Section 120B

IPC. It is submitted that the High Court by the impugned

judgment and order has quashed the criminal proceedings

mainly by observing that the respondents ­ accused have

not dealt with the allotment file in any manner and that

there is no material that any of the respondents ­ accused

herein influenced any co­accused or any officer of B.D.A. or

8 H.&U.D. Deptt. for getting the plots illegally in favour of

their family members. It is submitted that the aforesaid

aspects are required to be considered, established and

proved at the time of trial. It is submitted that only a prima

facie case is required to be considered at this stage and it is

to be considered whether any prima facie case is made out

for the offences alleged or not. It is submitted that in the

present case there are specific allegations of favouritism and

misusing the powers in allotting the plots to the family

members and that a huge loss has been caused to the

B.D.A. and the public exchequer. It is specifically alleged

that relatives of the respondents – accused and other co­

accused public servants, pursuant to a conspiracy,

submitted applications on plain papers (not in the form

prescribed in the brochure) and even some of the

applications were undated. It is submitted that it has been

found that the allotment of the 10 plots were made

arbitrarily and the respondents – accused got the plots

allotted to the family members at throw away prices. It is

urged that the High Court has erred in quashing the

criminal proceedings against the respondents ­ accused for

9 the serious allegations of corruption while allotting 10 plots

arbitrarily to their family members by hatching the criminal

conspiracy.

4. Learned counsel appearing on behalf of the

respondents – original accused Nos. 4, 5 and 3 has

vehemently submitted that in the facts and circumstances

of the case and having found that (i) the respondents ­

accused have no role in the fixation of price of 10 vacant

plots; (ii) the respondents – accused have not dealt with the

allotment file in any manner; (iii) there is no material that

any of the three accused influenced any co­accused or any

officer of B.D.A. or H.&U.D. Deptt. for getting the plots

illegally in favour of their family members, the High Court

has rightly quashed the criminal proceedings against them.

It is submitted that having observed so the High Court has

rightly quashed the criminal proceedings against the

respondents – accused in exercise of its powers under

Section 482 Cr.P.C.

4.1 It is submitted that the High Court on appreciation of

the material on record which was part of the charge­sheet

10 has quashed the criminal proceedings and therefore the

same may not be interfered with by this Court.

5. We have heard learned counsel for the respective

parties at length.

6. At the outset, it is required to be noted that by the

impugned judgment and order the High Court in exercise of

its powers under Section 482 Cr.P.C. has quashed the

criminal proceedings for the offences under Section 13(2)

read with Section 13(1)(d) of the Act and Section 420 read

with Section 120B IPC. From the impugned judgment and

order passed by the High Court, it appears that the High

Court has entered into the merits of the allegations and has

conducted the mini­trial by weighing the evidence in detail

which, as such, as observed and held by this Court in a

catena of decisions is wholly impermissible. As held by this

Court in the case of State of Haryana And Ors. vs Ch.

Bhajan Lal And Ors., AIR 1992 SC 604, the powers under

Section 482 Cr.P.C. could be exercised either to prevent an

abuse of process of any court and/or otherwise to secure

the ends of justice. In the said decision this Court had 11 carved out the exceptions to the general rule that normally

in exercise of powers under Section 482 Cr.P.C. the criminal

proceedings/FIR should not be quashed. Exceptions to the

above general rule are carved out in para 102 in Bhajan Lal

(supra) which reads as under:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order

12 of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non­cognizable 42 PART E offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

13 6.1 Looking to the allegations in the present case against

the respondents – accused and considering the fact that

charge­sheet has been filed by the Vigilance Cell after a

thorough investigation, it cannot be said that the case falls

within any of the exceptions as carved out by this Court in

para 102 in the case of Bhajan Lal (supra). It cannot be

said that the criminal proceedings initiated against the

respondents – accused are an abuse of process of any court.

On the contrary, the allegations are an instance of abuse of

the powers with a mala fide intention and allotment of the

plots to the family members by hatching a criminal

conspiracy and to allot the plots to the family members at

throw away price causing loss to the B.D.A. and the public

exchequer.

6.2 It is trite that the power of quashing should be

exercised sparingly and with circumspection and in rare

cases. As per settled proposition of law while examining an

FIR/complaint quashing of which is sought, the court

cannot embark upon any enquiry as to the reliability or

genuineness of allegations made in the FIR/complaint.

14 Quashing of a complaint/FIR should be an exception rather

than any ordinary rule. Normally the criminal proceedings

should not be quashed in exercise of powers under Section

482 Cr.P.C. when after a thorough investigation the charge­

sheet has been filed. At the stage of discharge and/or

considering the application under Section 482 Cr.P.C. the

courts are not required to go into the merits of the

allegations and/or evidence in detail as if conducing the

mini­trial. As held by this Court the powers under Section

482 Cr.P.C. is very wide, but conferment of wide power

requires the court to be more cautious. It casts an onerous

and more diligent duty on the Court.

6.3 In the present case the allegations were with respect to

allotment of 10 plots which were required to be allotted

under the discretionary quota. It is not in dispute that at

the relevant time the respondents – accused were connected

with the Department concerned with regard to allotment of

the plots directly or indirectly. Accused No.4 ­ Smt. Pratima

Mohanty was serving as Steno to Vice­Chairman, B.D.A. As

per the case of the prosecution an undated application for

allotment of plots on plain paper was received from Shri 15 Pradyumna Kumar Mohanty, brother of the accused ­ Smt.

Pratima Mohanty. It is also the case on behalf of the

prosecution that though the plot was applied in the name of

her brother, after the allotment of the plot she is in

possession of the same. So far as accused No.5 – Shri

Prakash Chandra Patra is concerned, as per the case on

behalf of the prosecution, an application on plain paper for

allotment of plot of Ms. Rajalaxmi Samal, sister­in­law of the

respondent – Shri Prakash Chandra Patra (accused No.5)

was forwarded by the Minister of Housing Urban

Development – Mr. Samer Dey (accused No.6) to Shri P.K.

Pattanaik, Secretary, B.D.A. It is noted that at the relevant

time the said accused was working as Jr. Assistant,

Allotment Section, B.D.A. Pursuant to the aforesaid

application the sister­in­law of the said accused has been

allotted a plot. So far as accused No.3 ­ Rajendra Kumar

Samal is concerned, as per the case of the prosecution and

as alleged, an application was made for allotment of plot in

favour of his wife who was Dealing Assistant, Allotment

Section II, B.D.A. and Personal Assistant to Minister,

Housing and Urban Development. It is noted that even the

16 then Minister is the original accused No.6. As per the

allegation the application was without any date and on the

basis of such undated application, the plot has been allotted

in favour of his wife.

7. Therefore, considering the aforesaid it cannot be said

that the criminal proceedings against the respondents –

accused were in any way an abuse of process of law and/or

the Court. The allegations against the respondents –

accused are very serious including hatching a criminal

conspiracy in allotment of 10 plots in the discretionary

quota arbitrarily and to their own family members/relatives.

There are specific allegations with respect to huge loss

caused to the B.D.A and the public exchequer, as according

to the prosecution the plots were allotted at throw away

prices. All these aspects are required to be considered at

the stage of trial and not while considering the application

under Section 482 Cr.P.C.

8. At this stage, the decision of the Karnataka High Court

in the case of K. Raju vs. Bangalore Development

Authority in Writ Petition No.11102 of 2008 decided on 17 15.12.2010 dealing with a somewhat similar situation with

respect to the allotment of plots in discretionary quota is

required to be referred to. In that case also it was a case of

allotment of the plots illegally and arbitrarily in the

discretionary quota. Speaking from the Bench Justice S.

Abdul Nazeer, J. as he then was has observed and held as

under:

“It is well established that a public body invested with statutory powers has to take care not to exceed or abuse its powers. It must act within the limits of authority committed to it.”

“31. BDA is the custodian of public properties. It is not as free as an individual in selecting the recipients for its largess. For allotment of the properties, a transparent, and objective criteria/procedure has to be evolved based on reason, fair play and non­arbitrariness. In such action, public interest has to be the prime guiding consideration. In Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628, the Apex Court has held that it must therefore be taken to be the law that even in the matter of grant of largesses including award of jobs, contracts, quotas, licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of land. In Common Cause, A Registered Society v. Union of India, (1996) 6 SCC 530, the Apex Court has held as under

The Government today ­ in a welfare State ­provides large number of benefits to the citizens.

It distributes wealth in the form of allotment of 18 plots, houses, petrol pumps, gas agencies, mineral leases in contracts, quotas and licences etc., Government distributes largesses in various forms. A Minister who is the executive head of the department concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people's property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people In Onkar Lal Bajaj and Ors. v.

Union of India, (2003) 2 SCC 673, the Apex Court has summarised the cardinal principles of governance, which is as follows:

35. The expression "public interest" or "probity in governance"

cannot be put in a straitjacket. "Public interest" takes into its fold several factors. There cannot be any hard­and­ fast rule to determine what is public interest. The circumstances in each case would determine whether government action was taken in public interest or 02­12­2021 (Page 14 of 23) www.manupatra.com Hon'ble Mr. Justice M.R. Shah was taken to uphold probity in governance.

36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base a transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window­dressing. The act 19 of governance has to be withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principles of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.”

8.1 It is further observed after referring to the decision of

this Court in the case of Common Cause, A Registered

Society (supra) that if a public servant abuses his office

whether by his act of omission or commission, and the

consequence of that is injury to an individual or loss of

public property, an action may be maintained against such

public servant. It is further observed that no public servant

can arrogate to himself powers in a manner which is

arbitrary. In this regard we wish to recall the observations

of this Court as under:

“The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are 20 essentials of good administration whether by the State or its instrumentalities.” [See Delhi Airtech Services (P) Ltd. Vs. State of U.P., (2011) 9 SCC 354]

“The higher the public office held by a person the greater is the demand for rectitude on his part.” [See Charanjit Lamba Vs. Army Southern Command, (2010) 11 SCC 314] “The holder of every public office holds a trust for public good and therefore his actions should all be above board.” [See Padma Vs. Hiralal Motilal Desarda, (2002) 7 SCC 564]

“Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good.” [See Shrilekha Vidyarthi (Kumari) Vs. State of U.P., (1991) 1 SCC 212]

“Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency.” [See ICAI Vs. Shaunak H. Satya, (2011) 8 SCC 781]

21 Therefore, action has to be initiated against the

officials who are prima facie responsible for the illegality in

the allotment of the plots to the relatives and/or family

members resulting in huge loss to the B.D.A. and the public

exchequer.

9. While quashing the criminal proceedings the High

Court has not at all adverted to itself the aforesaid aspects

and has embarked upon an enquiry as to the reliability and

genuineness of the evidence collected during the

investigation as if the High Court was conducting the mini­

trial. Therefore, as such the impugned judgment and order

passed by the High Court quashing the criminal

proceedings against the respondents herein ­ original

accused Nos. 4, 5 and 3 – Smt. Pratima Mohanty, Shri

Prakash Chandra Patra and Shri Rajendra Kumar Samal is

unsustainable, both, in law and/or facts and the same

deserves to be quashed and set aside.

10. In view of the above and for the reasons stated above

present appeals succeed. Impugned common judgment and

order passed by the High Court dated 04.09.2019 passed in

22 Criminal Miscellaneous Application No.3177 of 2017 and

Criminal Miscellaneous Application No.4804 of 2015 are

hereby quashed and set aside in so far as quashing the

criminal proceedings against original Accused Nos.4, 5 & 3

is concerned.

Respondent Nos.4, 5 & 3 to face trial along with other

co­accused.

Present Appeals are accordingly allowed.

11. Before parting we may observe that now the day has

come to do away with allotment of government largess on

the basis of discretionary quota as this inevitably leads to

corruption, nepotism and favouritism. Government and/or

the public authorities like B.D.A. are the custodian of public

properties. Allotment of public properties must be

transparent and has to be fair and non­arbitrary. In such

matters public interest only has to be the prime guiding

consideration. The aforesaid principle is in order to get the

best or maximum price so that it may serve the public

purpose and public interest so as to avoid loss to the

authority and/or the public exchequer. The allotment of

plots in the discretionary quota cannot be at the whims of 23 the persons in power and/or the public servants who are

dealing with the allotment of plots in the discretionary

quota.

When a democratic government in exercise of its

discretion selects the recipients for its largess, then

discretion should be exercised objectively, rationally,

intelligibly, fairly and in a non­arbitrary manner and it

should not be subjective and according to the private

opinion and/or the whims and fancies of the persons in

power and/or the public servants. Even if guidelines are

issued to be followed while allotment of the plots under the

discretionary quota and it is found that many a time they

are hardly followed or are manipulated to suit the particular

circumstances. Therefore, the best thing is to do away with

such discretionary quota and allotments of the public

properties/plots must be through public auction by and

large. Even in the case where the policy decision is taken to

allot the plots to a particular class – downtrodden class etc.

in that case also the guidelines must be strictly followed and

as observed hereinabove the allotment must reflect the fair

24 play and non­arbitrariness and should have objective,

criteria/procedure.

……………………………….J. [M.R. SHAH]

NEW DELHI; ……………………………….J. DECEMBER 11, 2021. [B.V. NAGARATHNA]

25