TaxTMI 
TaxTMI 
2021 (12) TMI 1511
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....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 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....
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....i 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 co-Accused 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 pre-concert mind and they were in criminal conspiracy with the other co-Accused 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 offences Under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B Indian Penal Code, 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....
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....ed 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 Indian Penal Code. 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 co-Accused or any officer of B.D.A. or 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 ....
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...., it appears that the High Court has entered into the merits of the allegations and has conducted the mini-trial 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. v. Ch. Bhajan Lal And Ors. AIR 1992 SC 604, the powers Under Section 482 Code of Criminal Procedure 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 carved out the exceptions to the general Rule that normally in exercise of powers Under Section 482 Code of Criminal Procedure 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 reprodu....
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.... Respondents - Accused and considering the fact that charge-sheet 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. 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....
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....he 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 Code of Criminal Procedure. 8. At this stage, the decision of the Karnataka High Court in the case of K. Raju v. Bangalore Development Authority in Writ Petition No. 11102 of 2008 decided on 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 illeg....
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....en 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 window-dressing. The act 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 ....
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....he 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 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 co-Accused. 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, nepoti....