A.S.NAIDU, J.
CRLREV No.645 OF 2004 ( Decided on 09.04. 2010.)
SAROJ KUMAR MOHAPATRA ……………. Petitioner
-V-
STATE OF ORISSA …………….. Opp.Parties
CRIMINAL PROCEDURE CODE,1973 (ACT NO.2 OF 1974) – SEC.239.240
For Petitioners – M/s.S.K.Mund & Associates.
For Opp.Party – Standing counsel (Vig.)
A.S. NAIDU,J. The order dated 16.8.2004 passed by learned Special Judge
(Vigilance), Bhubaneswar in T.R.No.71 of 1997 is assailed in this Criminal Revision. By
the said order, the petition filed by the petitioner to discharge was rejected.
2. The petitioner was working as an Inspector in O.M.V.D. On 13.8.1986 the house of
the petitioner was searched on the strength of a search warrant issued by the Chief
Judicial Magistrate, Cuttack and an inventory was made in respect of the house-hold
articles and other movables found during the search. After conducting the investigation,
an F.I.R. was lodged alleging that the petitioner being a public servant has acquired
assets disproportionate to the known sources of income to the tune of Rs.1,16,404.40
and a case under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act was
registered and investigation was taken up. After completion of investigation, charge-
sheet was submitted. Considering the materials available in the case
diary, cognizance of the offence punishable under Section 13(2) read with 13(1)(e) of
the P.C. Act, 1988 was taken. While the matter stood thus, the petitioner filed an
application under Section 239, Cr.P.C. praying for discharge. Learned Special Judge
after discussing the materials available on record, by the impugned order dated
16.8.2004 came to the conclusion that perusal of the police papers like F.I.R., details of
the income-expenditure, assets statement, statement of witnesses, sanction order and
other documents reveal sufficient materials to presume that the accused was guilty,
consequently the petition praying for discharge was rejected.
3. Learned counsel for the petitioner assails the said order mainly on the ground that
the allegations levelled are mischievously false and that sufficient materials are there
with the petitioner to reveal that his income is much more than what has been assessed
by the Vigilance Department. It is submitted that as the learned Special Judge failed to
appreciate the said facts and did not take into consideration the materials produced by
the petitioner, it is a fit case where the order refusing to discharge the petitioner needs
to be interfered with.
4. The submission made by the petitioner is stoutly repudiated by learned counsel for
the Vigilance Department. It is submitted that while taking cognizance of offence, the
court below need not take into consideration the documents other than which are
available in the case diary and as such, the impugned order suffers from no infirmity at
all.
5. Heard learned counsel for the parties at length. Perused all the materials.
Admittedly, the accused is a public servant and he has been charge-sheeted under
Section 13(1)(e) of the Prevention of Corruption Act, 1988 for possessing
disproportionate assets. The submission of the petitioner that while submitting charge-
sheet, the investigating officer did not take note of some of the documents explaining the
source of income, which he had produced and that the trial court has also acted illegally
in not taking into consideration such documents while considering the petition filed by
the petitioner to discharge him is not in accordance with law. It is well settled that while
framing charges, the court below is only to consider the materials placed by the
investigating agency and not to interfere on hypothesis, imagination and other reasons
which amount to interdicting trial. A similar view was expressed by this Court in the case
of Dr.ShallendreaKumar Tomatia v. Republic of India, (2003) 25 OCR, 617. In the
said case, relying upon several judgments of the Supreme Court, this Court came to the
conclusion that while taking cognizance, the Court is only to consider the materials
produced before it by the investigating agency.
6. In view of the aforesaid clear pronouncement and the statutory obligation of the
court being not to interfere at the initial stage of framing charges merely on hypothesis
and imagination, this Court is not inclined to interfere with the impugned order and
disposes of the revision giving liberty to the petitioner to produce the materials, which he
wants to rely upon in his defence in course of trial.
Revision disposed of.