Posted On by &filed under High Court, Orissa High Court.


Orissa High Court
Nalinikanta Muduli vs State Of Orissa on 2 March, 2004
Equivalent citations: 2004 CriLJ 3601, 2004 I OLR 402
Author: M Papanna
Bench: M Papanna


JUDGMENT

M. Papanna, J.

1. Petitioner-Nalinikanta Muduli has filed this petition under Section 482 Cr.P.C. for quashing of F.I.R. No. 43 of 2000 basing on which Bhubaneswar Vigilance P.S. Case No. 43/2000 was registered against him and his father Bichitrananda Muduli under Section 120-B/420/468/471, I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ‘P.C. Act’).

2. Facts of the case are like this :

Petitioner-Nalinikanta Muduli is one of the trustees of Naba Pravat Trust at Bhubaneswar. The said Trust runs Nilachala Poly Technic and Nilachal Institute of Computer Science. It is alleged that the petitioner has obtained Super Class and Special Class Contractor’s licence fraudulently. Subsequently the same was renewed. The petitioner swore an affidavit before Notary Public, Bhubaneswar on 4.7.1997 declaring his educational qualification as Civil (B). Bhubaneswar Vigilance P.S. Case No. 25/2000 was registered against petitioner’s father Bichitrananda Muduli with allegation that he acquired disproportionate assets to his known source of income as Chief Engineer in Rural Works Department of the State Government. It is also alleged that he is having a three storied building at 67-Sahid Nagar, Bhubaneswar. According to the prosecuting Agency, alleged disproportionate income must have been invested in the contract business of the petitioner. The I.O. searched petitioner’s business premises. Different documents of the construction company were also verified during investigation. The prosecuting Agency seized contractor’s licence from the Office of Chief Engineer (Works) Orissa, Bhubaneswar where the same was submitted of renewal, the expiry date of the licence being 31.3.2000. The Inspector, Vigilance, Bhubaneswar lodged a separate F.I.R. against the present petitioner and his father Bichitrananda Muduli on 16.9.2000 under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and under Section 120-B/420/468/471 I.P.C. Several other allegations against the petitioner and his father have also been made in the impugned F.I.R. One such allegation is that the petitioner submitted a false experience certificate and obtained super class contractor’s licence. He impersonated himself as a Degree Engineer in obtaining the said licence. He submitted application for upgradation of his special class contractor’s licence to super class contractor’s licence by producing a forged experience certificate with the help of his father Bichitrananda Muduli who influenced the Committee of Chief Engineers to issue super class contractor’s licence in favour of his son. Bichitrananda Mudli being a Member of the Committee of Chief Engineers he could influence the Committee also in granting the renewal of the petitioner’s licence.

3. However, subsequently the licence granting Authority cancelled super class contractor’s licence issued in favour of construction Company. The said cancellation of the super class contractor’s licence was challenged by the petitioner before this Court in O.J.C. No. 13236/2000 and this Court directed stay operation of the order of cancellation of super class contractor’s licence. Since the Government have not filed any counter affidavit till date the interim order passed by this Court on 19.12.2000 is continuing till today. It is also seen that contractor’s licence of the construction company seized by the Vigilance Authority has not yet been released. It is submitted by the petitioner that the aforesaid allegation embodied in the F.I.R. is false and fabricated.

4. Learned counsel for the petitioner submits that Vigilance Authority is making omnibus accusation against the petitioner and his father without any basis and substance. According to him since no prima facie case is made out against the petitioner and his father the F.I.R. is bound to be quashed with a direction to the concerned Authority to renew the contractor’s licence of the construction Company on production after the same is released in favour of the petitioner. On the other hand, learned counsel appearing for the Vigilance Organisation opposed release of contractor’s licence and its renewal.

5. From the averments made in the F.I.R. it is to be seen whether there is prima facie case made out against the petitioner and his father under provisions of I.P.C. or P.C. Act.

6. Section 482 Cr.P.C. says as follows :

“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of Justice”.

Provisions of Section 482 Cr.P.C. empower the High Court to prevent abuse of the process of the Court in order that ends of justice can be secured. The High Court can exercise such inherent powers only in appropriate cases. It amounts to abuse of the process of any Court, if without prima facie case having been made out, a person is summoned to face trial in a criminal proceeding. In A.I.R. 1989 SC 2222 (State of U.P. through C.B.I. for S.P.E., Lucknow – v.- I Srivastav) it is held that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute any offence, the criminal proceedings constituted on the basis of such FIR should be quashed. Their Lordships have also laid down the law in the case of Mrs. Dhana Lakshmi v. R. Prasanna Kumar, A.I.R. 1990 S.C. 494. In this case the Supreme Court held that to prevent the abuse of the process of Court, the High Court in exercise of its inherent powers under Section 482 Cr.P.C. should quash the proceeding but there should be justification of interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive. The settled principle of law in no inflexible guidelines or rigid formula can be set out and it depends upon facts and circumstances of each case wherein such powers should be exercised. Therefore, it is clear from the rulings cited above that a criminal proceeding against an accused can be quashed in the initial stage only when on the face of the complaint or the papers accompanying the same, no offence is constituted. The test for quashing of criminal proceeding is that taking the allegations in the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceeding in exercise of its power under Section 482 Cr.P.C It is further clear from the settled position of law that for quashing an F.I.R. the information in the complaint must be so bereft of even the basic fact which are absolutely necessary for making out the offence.

7. Petitioner seeks quashment of F.I.R. No. 43/2000 basing on which Bhubaneswar Vigilance P.S. Case No. 43/2000 was registered against him and his father Bichitrananda Muduli. In the impugned F.I.R. allegations embodied indicate that petitioner has obtained a special class and super class contractor’s licence fraudulently. The specific allegation is that he has obtained the said contractors’ licence as a Graduate Engineer and that too without any previous experience. From the police papers placed before me during hearing of the case clearly indicate that petitioner has never taken individually in his .name any contractor’s licence. However in the name of construction company Zarina Marline (P) Limited contractor’s licence has been taken. The construction company is a legal entity having been registered under Companies Act, 1956. The said Company was issued with special class contractor’s licence by the Committee of Chief Engineers in March, 1996 on payment of licence fee of Rs. 30, 000/- and Rs. 1 lakh worth N.S.Cs. as per Government Circular Code 7/96/5337 dated 22.7.1996. The construction company applied for contractor’s licence as per O.P.W.D. Code. No previous experience as such is necessary for contractor’s licence. To become a Special Class and super class contractor one need not be a Graduate Engineer. Even many of such special class or super class contractors might not have gone to the college but they are allowed to get themselves registered as special class or super class contractors. From this point of view the allegation that the petitioner has got special class licence as Graduate Engineer cannot be accepted. The allegation that Shri Karunakar Mohanty issued work experience certificate to the petitioner but on the basis of said certificate got special class licence seems to be vague and baseless in view of the provisions of O.P.W.D. Code. It is of course necessary that an engineer has to indicate some sort of practical training in the actual field. Civil Engineers get acquainted with work process by visiting different work-sides for getting practical knowledge. No doubt a testimonial showing that petitioner was supervising some office work without any salary was issued to him by Shri Karunakar Mohanty. However, this testimonial was never required for any purpose from a private individual. When the construction company was actually issued special class contractor’s licence in 3/96 and was upgraded to super class contractor’s licence in 9/97 subsequently after executing some works worth Rs. 3.23 crores, question of issuing super class licence to the petitioner does not arise. For all these reasons, the allegation that the petitioner was issued special class contractor’s licence directly without any work experience or with work experience certificate furnished by Shri Karunakar Mohanty super class contractor is false. Special class licence 3/96 issued to Zarina Marine (P) Limited was upgraded to special class category on payment of the required fee. In the present case, the licence issued in the name of construction company was upgraded and renewed in the Committee of Chief Engineers. No doubt petitioner’s father Bichitrananda Muduli was a Member of the said Committee. When the said Committee has renewed his licence petitioner’s father had no role to play. As a matter of fact renewal of such licence in every three years is an automatic routine process. In fact, the licence in question was renewed as a matter of course in favour of the construction company but not in the name of the petitioner. As such the allegation that petitioner’s father biased the Committee of Chief Engineers constituting of seven other Chief Engineers cannot be believed at all.

8. By the time F.I.R. No. 43 of 2000 was lodged against the petitioner, his father Bichitrananda Muduli was working as Chief Engineer, Rural Works Department, Government of Orissa. But now he had become retired as Chief Engineer on superannuation. His son Nalini Kanta Muduli is not a public servant. It is contended on behalf of the petitioner that his father being a public servant was roped in Vigilance Case with a view to implicate him as an accused with his father. Name of the father has been linked with the petitioner to book a Vigilance Case against him. That apart, it is contended on behalf of his father that he has never played any role in issue of contractor’s licence in the name of Zarina Marines (P) Ltd. of which his son happens to be Managing Director particularly when he was not the Chief Engineer, Rural Works, Government of Orissa at that time. Of course he was one of the Members of the Committee of Chief Engineers when the contractor’s licence issued in the name of Construction Company was put up for renewal. At that time also, he never influenced any of the Chief Engineers who were Members of the Committee to renew the licence of the Construction Company. The opinion of learned counsel for the petitioner is that for no reason an innocent person like Bichitra Nanda Muduli was penalised and sent to jail merely because he was one of the Members of the Committee of Chief Engineers. As a matter of routine, decision was taken by the Committee of Chief Engineers at the time of renewal of licence of contractors of Orissa. It is also contended on his behalf that for grant of contractor’s licence, work experience certificate has never been emphasized in Orissa at any point of time, but the Vigilance Department made it an issue maliciously and insisted upon work experience certificate in case of Zarina Marine (P) Ltd. That being so, in the light of the contentions raised on behalf of the petitioner, I am of the considered view that no work experience certificate is taken as a criteria for issue of fresh licence for the first time to any contractor. Of course previous work experience certificate is necessary for upgradation and renewal in approved proforma. I have also found that contractor’s licence has not been issued to Nalinikanta Muduli, present petitioner as a Graduate Engineer. What is true that the special contractor’s licence has been issued to the Company M/s. Zarina Marine (P) Ltd. of which Nalinikanta Muduli is the Managing Director where qualification is not the criteria. Special class licence of M/s. Zarina Marine (P) Ltd. was upgraded to super class, after lapse of 18 months and after executing works worth Rs. 3.25 crores. This is an admitted fact. So after upgradation, the super class licence issued to Company M/s Zarina Marine (P) Ltd. the contractor’s licence was renewed on 24.3.2000 by the Committee of Chief Engineers. Such renewal of contract licence is done in every three years on payment of required fees This is an automatic routine process and the renewal of contractor’s licence is done as a matter of course. As such, there was no necessity of intimating the Committee Members regarding son and father relationship. Moreover, seven other Chief Engineers were not aware of relationship of the petitioner with Bichitrananda Muduli and they acted without any bias while renewing the licence of the Company M/s Zarina Marines (P) Ltd. As such, I do not find any iota of favour shown to the son of Bichitrananda Muduli by the Committee of Chief Engineers.

9. Having gone through the facts of the case and applying the case laws on the subject to the said facts, I have been fully satisfied and convinced that though the proceeding is at preliminary stage it should not be allowed to continue against an innocent person, such as petitioner and his father as it amounts to abuse of process of Court. Therefore, to prevent such abuse of process of Court and to secure ends of justice, I am inclined to exercise my judicial discretion to quash the F.I.R. No. 43/2000 and further proceeding in its entirety as the information on its face value and if accepted in its entirety do not prima facie constitute any offence or make out a case against the accused.

10. In the ultimate result, the Criminal Misc. Case under Section 482 Cr.P.C. is allowed. F.I.R. No. 43 of 2000 basing on which Bhubaneswar Vigilance P.S. Case No. 43/2000 was registered and corresponding Criminal Proceeding in its entirety, if any, now pending against the petitioner and his father Bichitrananda Muduli are hereby quashed. It is seen that the contractor’s licence issued to Zarina Marine (P) Ltd. has not been renewed after the same has been seized by the prosecuting agency for no reasons what so ever. Therefore, the said licence shall be released in favour of the petitioner and the concerned licensing authority shall renew the same on production by him condoning the delay, if any, on payment of charges, if any, as per Rules.


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