The said judgment was challenged by the State of
Maharashtra before the Supreme Court. Rule 27 of the Maharashtra
Civil Services (Pension) Rules 1982 is a pari materia provision with
Rule 7 of the OCS (Pension) Rules, 1992. On interpretation, it is held
by the Supreme Court that, those provisions of the Pension Rules is only meant for the purpose of granting, withholding or withdrawing the pension and it‟s operation would be in the limited field and cannot supersede the period of limitation prescribed under the Cr.P.C.
This Court also by relying the said decision of the
Supreme Court, in the case of Fani Bhusan Das & Anr. Vs. State
of Odisha (CRLMC Nos. 258 &686 of 2004, and 2626 of 2007),
reported in 2018 SCC Online 310, has observed that the provision
of the Cr.P.C. shall have an overriding effect and shall prevail
notwithstanding any provision in the Pension Rules, and therefore,
the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.
So the contention of these two petitioners to give them
immune from criminal prosecution by virtue of Rule-7 of the OCS
(Pension) Rules is found without substance and accordingly rejected.HIGH COURT OF ORISSA: CUTTACK
In CRLREV No.534 of 2019
Jitendra Nath Patnaik Vs State of Odisha (Vigilance)
PRESENT:
SHRI JUSTICE B.P. ROUTRAY
Date of Judgment : 06.08.2020
B.P. ROUTRAY, J. All the petitioners in these Criminal Revisions have challenged
the order dated 19.07.2019 passed by the learned Special Judge
(Vigilance), Keonjhar in VGR Case No. 19 of 2011 and have further
prayed to discharge them from the offences under Sections 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act,1968, Sections
379/120-B of the Indian Penal Code, Sections 21 of the Mines and
Minerals (Development and Regulations) Act, 1957 (hereinafter in short
called “MMDR Act”), Section 3-A of the Forest Conservation Act, 1980
and Section 58 of the Mineral Conservation and Development Rules,
1988.
2. Since all these Revision Petitions are arising out of the
very same impugned order dated 19.07.2019 passed in VGR Case No.
19 of 2011 by the learned Special Judge (Vigilance), Keonjhar, they
are heard together analogously and disposed of by this common
order.
3. The case in nutshell is that a mining lease was granted in
favour of Late Banshidhar Patnaik, the father of the accusedpetitioner
in CRLREV No.534/2019 Jitendranath Patnaik over an
area of Ac.260.00 dec. for Manganese and Iron Ore. Mining lease so
granted for Manganese was for 20 years and for Iron Ore was for 30
years. The lease period started on 31.07.1959. However, in the year
1967 said Banshidhar Patnaik surrendered the mining lease in
respect of Manganese but continued in respect of Iron Ore. Before
expiry of the said lease period, he applied for renewal of the lease on
30.07.1988 for the break up area, but without the de-reservation
proposal though there were forest areas within the applied area.
However, no renewal of fresh lease was granted in his favour after
31.07.1989, but the period was further extended for one year more
i.e., till 31.07.1990 in view of Rule 24-A of the Mineral Concession
Rules, 1960 as it then was.
4. Allegedly accused Jitendranath Patnaik (petitioner in
CRLREV No. 534/2019), on 7.11.1991 applied on behalf of his father
Bansidhar Patnaik to the Government in the Department of Steel and
Mines through the Deputy Director of Mines, Joda for grant of
working permission pending renewal of mining lease. The working
permission was granted for 6 months and extended from time to time
till 26.12.1994 without any approval by the Ministry of Environment
and Forest. Said Banshidhar Patnaik (father of the petitioner) died on
5.11.1995. The Ministry of Environment and Forest in its letter dated
3.9.1998 communicated the permission for DRP (De-reservation
Proposal) over an area of Hc.18.02 for 10 years which was
coterminous with the permission granted under the MMDR Act.
5. In the meantime accused Jitendranath Patnaik in his
letter dated 6.9.1996 requested the Government in Steel and Mines
Department for 20 years renewal of the mining lease, however,
without submitting the application in proper form. Further, another
proposal for renewal was submitted by the said accused Jitendranath
Patnaik on 25.07.2008 for 20 years enclosing a WILL, allegedly
executed by his father Late Banshidhar Patnaik, which was already
declared forged by the learned District Judge, Keonjhar vide its order
dated 26.3.2001 passed in Misc. Case No. 5 of 1996.
6. It is the case of the prosecution that, the said accused
Jitendranath Patnaik in conspiracy with other accused persons
continued the illegal mining activities from 1999 to 2009 causing
heavy pecuniary loss to the Government to the tune of Rs.130.39
crores, and to their personal gain.
7. The FIR was lodged on 18.11.2009 by the D.S.P.,Vigilance
and charge sheet was submitted on 26.03.2013. The learned Judge
took cognizance of the aforesaid offences on 11.06.2013. There were
15 numbers of accused persons and due to death of one accused,
namely, S. Sahoo, presently 14 accused persons are there.
8. Except the petitioner-accused Jitendranath Patnaik, all
other petitioners-accused persons are Government Officials. The
common submission on behalf of all the petitioners in challenging the
impugned order of the learned Vigilance Judge, with prayer for
discharge, is that the court below has failed to appreciate the
provision of law that, in absence of the complaint being presented by
the competent authority, the order of cognizance is not sustainable in
the eye of law. As per Section 22 of the MMDR Act, since there is a
bar for taking cognizance of any offence under the said Act unless the
complaint in writing is made by a person authorized in this behalf by
the Government, the cognizance taken on the report of Vigilance
Police is bad in the eye of law. It is further submitted that in the
Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and
Regulation of Possession, Storage, Trading and Transportation)
Rules, 2007 (hereinafter referred as OMPTS Rules), the „competent
authority‟ as defined under Rule 2(1)(b) is any officer mentioned in
Schedule-I appended to the said Rules. Bringing attention of this
Court to said Schedule -I, it is pointed out that the name of any such
Vigilance Official is not appearing as such in the schedule. Therefore,
the complaint at the instance of the Vigilance Police and initiation of
the proceeding thereof by taking cognizance of the offences by the
court below is vitiated. It is also submitted that, whatever may be the
contravention is, of the provisions of the MMDR Act or MCD Rules,
the same never mean to constitute the offence of theft. The learned
court below has not appreciated the law properly, and held that, since
the petitioner did not challenge the order taking cognizance of the
offences, their prayer for discharge at this stage cannot be
entertained. In addition to this submission, it is also submitted on
behalf of the petitioners Akshya Kumar Das (petitioner in CRLREV
No.615/2019) and Nityananda Mohanty (petitioner in CRLREV
No.616/2019) that, they have retired from service on 30.04.1994 and
in the year 1996 respectively and therefore, initiation of any judicial
proceeding against them after four years of their retirement is not
permissible in view of the provision contained in Rule 7(2)(c) of the
OCS (Pension) Rules, 1992.
9. In support of their contention that, the cognizance of the
offences under the MMDR Act and MCD Rules without the complaint
being lodged by any competent authority as per the mandate in
Section 22 of the MMDR Act and Schedule-I of the OMPTS Rules is
unsustainable and the proceeding against the petitioners is also
vitiated, they rely on the decision in the case of State of NCT of Delhi
Vs. Sanjay, reported in (2014) 9 SCC 772 and a judgment of this
Court dated 9.7.2019 passed in CRLMC No. 2440 of 2010 (Ramesh
Kumar Agrawal Vs. State of Odisha & Ors.), reported in 2019 SCC
Online Ori.226.
10. On the other hand it is submitted on behalf of Vigilance
Department that, the Vigilance Officials have been duly empowered
and authorized to conduct enquiry and investigation in respect of all
such offences by the Notification of Government dated 14.01.2010.
Therefore, the contention of the petitioners that the Vigilance D.S.P. is
not authorized to lodge the complaint in respect of those offences is
not at all correct and liable to be rejected.
11. To examine this submission, it is first required to see
Sec.22 of the MMDR Act and the relevant provisions of the OMTPS
Rules. Section 22 speaks as follows:
“22. Cognizance of offences.—No court shall take
cognizance of any offence punishable under this Act or
any rules made thereunder except upon complaint in
writing made by a person authorised in this behalf by
the Central Government or the State Government.”
12. Rule 15 of the OMPTS Rules prescribes that, no court
shall take cognizance of any offence punishable under the act except
upon any complaint in writing is made by the competent authority or
person authorized in this behalf by the Government. The term
„competent authority‟ has been defined in Rule 2(1)(b) as „Officers
mentioned in Schedule-I‟ of the said Rules. In Schedule-I, 15 Mining
Officers including the Director and Dy. Director of Mines for different
areas of jurisdiction have been named. Further the Government in
the Department of Steel and Mines, in exercise of power conferred
under Sections 22 and 23B of the MMDR Act, in its Notification dated
19.12.2009 has named the Director of Mines and two Joint Directors
authorizing them to exercise the powers of detection/seizure and
confiscation etc. in connection with illegal mining activities for all type
of minerals covering the entire State of Odisha. For better
appreciation, the said Notification is reproduced below:
“DEPARTMENT OF STEEL & MINES
NOTIFICATION
The 19th December 2009
No.8096—IV(A)-SM-101/2009-SM.—Whereas, the Government of Orissa have
been considering delegation of original powers of detection, seizure, investigation,
prosecution, etc. under the provisions of M.& M. (D. & R.) Act, 1957 and O.M.P.T.S.
Rules, 2007 to the Joint Director/Deputy Director/Mining Officer deputed to State
Level Enforcement Squad (S.L.E.S.) for checking illegal mining to exercise such powers
all over the State;
Now, therefore, in exercise of the powers conferred under Sections 22 & 23B of
M. & M. (D.& R.) Act, 1957, the State Government have been pleased to authorize the
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following Officers to exercise the powers of detection, seizure and confiscation, etc. in
connection with illegal mining activities covering the entire State of Orissa under the
relevant provisions of the aforementioned Act & Rules in respect of the area mentioned
against each. Further they are declared as competent authority as defined in rule
2(1)(b) of Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and
Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 from the
date of issue of this notification.
Sl.No. Name of the Officers Jurisdiction Minerals
1. Director of Mines, Orissa Entire State All Minerals
2. Joint Director of Mines/Deputy Director
of Mines/Mining Officer working in the
o/o Director of Mines Entire State All Minerals
3. Joint Director of Mines/Deputy Director
of Mines/Mining Officer deputed to
State Level Enforcement Squad (S.L.E.S.) Entire State All
Minerals
By order of the Governor
S.DASH
Commissioner-cum-Secretary to Government”
13. Again the Government of Odisha in the Home Department
in their Notification dated 14.01.2010 have specified the Officers of
and above the rank of Inspector of Police under the Director of
Vigilance, Odisha to conduct investigation/enquiry and to take legal
action under the provisions of the IPC, other relevant Acts and Rules
pertaining to illegal mining in the State and to file charge sheet/final
report accordingly after obtaining approval/sanction of the competent
authority as and when required in the corresponding Act /Rules. The
list of offences includes offences under the MMDR Act, the Forest
Conservation Act, OMPTS Rules etc. For better appreciation, the said
Notification is reproduced below:
“HOME (SPECIAL SECTION) DEPARTMENT
NOTIFICATION
The 14th January, 2010
S.R.O.No.49/2010---In exercise of the power conferred by Clause (S) of Section
2 of the Code of Criminal Procedure, 1973, the Government in Home Department has
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issued the Notification vide Order No.31045-D.& A, dated the 7th August, 2004
specifying the offences which can be investigated by the Vigilance Organization.
As per the Clause 1, Schedule II of the Notification, dated the 7th August, 2004
of Home Department, any other particular offence or class of offences that may be
specified by the State Government from time to time can be enquired and investigated
into by Vigilance Organization. During enquiry/investigation of the allegations on
illegal mining, it is felt imperative that other sections of I.P.C. in addition to sections
mentioned in Schedule II of the above Notification, dated the 7th August, 2004 and the
provisions of the Acts/Rules mentioned below may be applicable for the purpose of
investigation of the cases.
1. The Orissa Forest Act, 1972
2. The Wildlife (Protection) Act, 1972
3. The Indian Forest Act, 1927
4. The Forest (Conservation) Act, 1980
5. The Forest (Conservation) Rules, 2003
6. The Environment (Protection and Control of Pollution) Act
7. The Environment (Protection) Rules, 1986
8. The Air (Prevention and Control of Pollution) Act, 1981
9. The Air (Prevention and Control of Pollution) Rules, 1982
10. The Water (Prevention and Control of Pollution) Act, 1974
11. The Water (Prevention and Control of Pollution) Rules, 1975
12. The Water (Prevention and Control of Pollution) Cess Act, 1977
13. Orissa Minor Mineral Concession Rules, 2004
14. The Mines Act, 1952
15. The Mines and Minerals (Development and Regulation) Act, 1957
16. The Mineral Concession Rules, 1960
17. Orissa Minerals (Prevention of Theft, Smuggling and other Unlawful
Activities) Act, 1988
18. Orissa Minor Minerals Concession Rules, 2004
19. Orissa Minerals (Prevention of Theft, Smuggling and Illegal Mining and
Regulation of Possession, Storage, Trading and Transportation) Rules, 2007.
The State Government do hereby empower the officers of and above the rank of
Inspector of Police posted under the Director, Vigilance, Orissa to conduct
investigation/enquiry, take legal actions under the provisions of I.P.C. other relevant
Acts and Rules pertaining to the illegal mining in the State and file Charge Sheet/Final
Report as it is applicable after obtaining approval/sanction of the Competent Authority
as and when required in the corresponding Acts/Rules.
The devolution of the above power shall be limited to the purpose of taking up
enquiry/investigation into the alleged mining activities referred to by the State
Government or till the latter withdraws the same.
[No.128-C.]
By order of the Governor
A.P. PADHI
Principal Secretary to Government”
14. In the case of State of NCT (supra), the Hon‟ble Supreme
Court has held at paragraphs 69 and 70 as follows:
“69. Considering the principles of interpretation and the wordings
used in Section 22, in our considered opinion, the provision is not
a complete and absolute bar for taking action by the police for
illegal and dishonestly committing theft of minerals including sand
from the riverbed. The Court shall take judicial notice of the fact
that over the years rivers in India have been affected by the
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alarming rate of unrestricted sand mining which is damaging the
ecosystem of the rivers and safety of bridges. It also weakens
riverbeds, fish breeding and destroys the natural habitat of many
organisms. If these illegal activities are not stopped by the State
and the police authorities of the State, it will cause serious
repercussions as mentioned hereinabove. It will not only change
the river hydrology but also will deplete the groundwater levels.
70. There cannot be any dispute with regard to restrictions
imposed under the MMDR Act and remedy provided therein. In
any case, where there is a mining activity by any person in
contravention of the provisions of Section 4 and other sections of
the Act, the officer empowered and authorised under the Act shall
exercise all the powers including making a complaint before the
Jurisdictional Magistrate. It is also not in dispute that the
Magistrate shall in such cases take cognizance on the basis of the
complaint filed before it by a duly authorised officer. In case of
breach and violation of Section 4 and other provisions of the Act,
the police officer cannot insist the Magistrate for taking
cognizance under the Act on the basis of the record submitted by
the police alleging contravention of the said Act. In other words,
the prohibition contained in Section 22 of the Act against
prosecution of a person except on a complaint made by the officer
is attracted only when such person is sought to be prosecuted for
contravention of Section 4 of the Act and not for any act or
omission which constitutes an offence under the Penal Code.”
Similarly this Court in the case of Ramesh Kumar
Agrawal (supra), relying on the aforesaid decision of the Supreme
Court has quashed the order of cognizance taken for the offence
under Section 21 of the MMDR Act.
15. It is true that in the aforesaid two cases relied upon by
the petitioners, the Police had instituted the complaint and submitted
the final report. The Police had no authorization for doing enquiry or
investigation or to take any legal action in respect of any offence
under the MMDR Act. But here is a case, which clearly shows that
the Vigilance Police of and above the rank of Inspector, have been
specifically authorized to conduct the investigation/enquiry and to
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take all legal action pertaining to illegal mining activities in the State
including the offences under the MMDR Act, Forest Conservation Act
and OMPTS Rules. It is true that none of the petitioners have
challenged or are questioning the power of Government to issue the
Notification dated 14.01.2010 authorising Vigilance Police in that
respect. Undisputedly the validity of notification dated 14.1.2010 is
not questioned. The averments and submissions made on behalf of
the petitioners are completely silent about the said Notification made
in favour of the Vigilance Police. On the other hand, as seen from the
Notification dated 14.01.2020 issued by the Government in Home
Department and the Notification dated 19.12.2009 issued by the Steel
and Mines Department, Government of Odisha, they are neither
overlapping to each other nor the Notification dated 14.01.2010 is
found in conflict with the provisions of the MMDR Act or the OMPTS
Rules. A bare perusal of the notification dated 14.01.2010 clearly
shows that it has given power to the Vigilance Police to investigate or
lodge complaint for such offences under the MMDR Act and other
relevant Acts / Rules. Therefore, in view of the specific authorization
made in favour of the Vigilance Officials in that respect, the
contentions of the petitioners cannot be accepted that the Dy.
Superintendent of Police (Vigilance) is not authorized to file the
complaint for the offences against the requirement of Section 22 of
the MMDR Act. Therefore, in my considered opinion the complaint at
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the instance of Vigilance Police and investigation conducted by them
against the petitioners is maintainable.
16. It would not be out of place to mention here that the
‘competent authority’ as prescribed in Rule 15 of the OMPTS Rules is
in addition to the „person authorized’ as mentioned in Section 22 of
the MMDR Act. Therefore, it is immaterial to discuss who would be
the competent authority for the purpose, because the term „competent
authority‟ is in addition to the „person authorized in this behalf‟ as per
Rule 15 of the OMPTS Rules, against the prescription of Section 22 of
the MMDR Act.
17. It is argued on behalf of the petitioners that the action in
lifting the mineral even by violating the provisions as per the
allegations would never amount to theft under the Indian Penal Code.
But, in my considered view, this argument does not appear
convincing in view of the observation of the Hon‟ble Supreme Court
made in the case relied upon by the petitioners in the case of State of
NCT (supra). It is further observed in the said decision that where a
person without any lease or license or authority extract minerals and
remove and transport them with an intent to remove dishonestly, is
liable to be punished of committing such offence under Sections 378
and 379 of the IPC. In paragraphs 71, 72 and 73 of the judgment the
Hon‟ble Supreme Court held as follows:
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“71. However, there may be a situation where a person
without any lease or licence or any authority enters into river and
extracts sand, gravel and other minerals and remove or transport
those minerals in a clandestine manner with an intent to remove
dishonestly those minerals from the possession of the State, is
liable to be punished for committing such offence under Sections
378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR
Act and the offence defined under Section 378 IPC, it is manifest
that the ingredients constituting the offence are different. The
contravention of terms and conditions of mining lease or doing
mining activity in violation of Section 4 of the Act is an offence
punishable under Section 21 of the MMDR Act, whereas
dishonestly removing sand, gravel and other minerals from the
river, which is the property of the State, out of the State's
possession without the consent, constitute an offence of theft.
Hence, merely because initiation of proceeding for commission of
an offence under the MMDR Act on the basis of complaint cannot
and shall not debar the police from taking action against persons
for committing theft of sand and minerals in the manner
mentioned above by exercising power under the Code of Criminal
Procedure and submit a report before the Magistrate for taking
cognizance against such persons. In other words, in a case where
there is a theft of sand and gravel from the government land, the
police can register a case, investigate the same and submit a final
report under Section 173 CrPC before a Magistrate having
jurisdiction for the purpose of taking cognizance as provided in
Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter,
in the light of the relevant provisions of the Act vis-à-vis the Code
of Criminal Procedure and the Penal Code, we are of the definite
opinion that the ingredients constituting the offence under the
MMDR Act and the ingredients of dishonestly removing sand and
gravel from the riverbeds without consent, which is the property of
the State, is a distinct offence under IPC. Hence, for the
commission of offence under Section 378 IPC, on receipt of the
police report, the Magistrate having jurisdiction can take
cognizance of the said offence without awaiting the receipt of
complaint that may be filed by the authorised officer for taking
cognizance in respect of violation of various provisions of the
MMDR Act. Consequently, the contrary view taken by the different
High Courts cannot be sustained in law and, therefore, overruled.
Consequently, these criminal appeals are disposed of with a
direction to the Magistrates concerned to proceed accordingly.”
18. The additional argument, what is urged on behalf of the
petitioners in CRLREV Nos.615 and 616 of 2019 that they retired
from service since 1994 and 1996 respectively and cognizance being
taken on 11.06.2013, the same is barred under Section 7(2)(c) of the
OCS (Pension) Rules, 1992, is not found acceptable. It is because
Rule 7 has a limited field of application and cannot be extended to
put an absolute bar against criminal prosecution. In the case of State
of Maharashtra Vs. Keshav Ramchandra Pangare & Another,
reported in (1999) 9 SCC 479, the respondent Keshav Ramchandra
Pangare retired as Dy.Engineer, P.W.D. in the State of Maharaashtra.
Prosecution launched against him under Sections 120-B, 406, 420,
465, 466, 467, 468, 471, 477 and 109 IPC and Sections 5(i)(c),(d) read
with Section 5 (2) of the Prevention of Corruption Act, 1947. His
challenge before the Bombay High Court was that the complaint being
filed beyond the period of four years from the date of commission of
the offence, it is barred by Rule 27(3) of the Maharashtra Civil
Services (Pension) Rules, 1982. The Bombay High Court accepted the
plea and held that Rule 27 of the Pension Rules was directly
applicable and it is mandatory that prosecution should be launched
within four years from the date of commission of offence and
consequently quashed the criminal proceeding against the
respondent. The said judgment was challenged by the State of
Maharashtra before the Supreme Court. Rule 27 of the Maharashtra
Civil Services (Pension) Rules 1982 is a pari materia provision with
Rule 7 of the OCS (Pension) Rules, 1992. On interpretation, it is held
by the Supreme Court that, those provisions of the Pension Rules is
only meant for the purpose of granting, withholding or withdrawing
the pension and it‟s operation would be in the limited field and cannot
supersede the period of limitation prescribed under the Cr.P.C. The
relevant observation of the Supreme Court is reproduced below:
“9. Similarly, in the present case, Rule 27(1) provides the right of
Government to withhold or withdraw a pension and in that context the
said rule is to be interpreted. Under the said rule, the Government may,
inter alia, order withholding or withdrawing a pension or any part
thereof, if, in any departmental or judicial proceedings, the pensioner is
found guilty of grave misconduct or negligence during the period of his
service. It also empowers the Government to order the recovery from
such pension of the whole or part of any pecuniary loss caused to the
Government if, in any departmental or judicial proceedings the
pensioner is found guilty of grave misconduct or negligence during the
period of his service. In the context of the second part of sub rule (1),
sub rule (3) is to be read and interpreted. If something is to be recovered
from the pension payable to the employee then the judicial proceeding or
departmental inquiry is required to be started within the period
prescribed under the sub-rule (2) or sub-rule (3) but that would not
debar the prosecuting agency from launching the prosecution for the
offence of grave misconduct. This rule is to be read with the previous
Rule 26 which provides that future good conduct shall be an implied
condition of every grant of pension and Government may withhold or
withdraw a pension or part thereof, if the pensioner is convicted of a
serious crime or is found guilty of grave misconduct. But the Pension
Rules 26 and 27 do not lay down any period of limitation for prosecution
or could not supersede the period of limitation prescribed under
the Cr.P.C. Rule 27 is only meant for the purpose of granting,
withholding or withdrawing the pension and hence its operation would
be in the limited field of granting or withholding pension to the
Government employees.
10. Relying upon the decision in State of Punjab Vs. Kailash
Nath,(1989)1 SCC 321, the learned Single Judge of the Bombay High
Court in Prabhakar Govind Sawant v. State of Maharashtra and others,
(1991) Maharashtra Law Journal 1051, rejected the contention that the
prosecution was barred under Rule 27 of the Pension Rules as it was
launched after the period of four years. In that case, the learned Judge
also referred to Article 254 of the Constitution and held that the
provisions of the Criminal Procedure Code shall have an overriding effect
and shall prevail notwithstanding any provision in the Pension Rules
framed by the State Government. It is unfortunate that the attention of
the learned Single Judge was not drawn to the said decisions which are
of a binding nature at least as far as the High Court is concerned. That
apart, learned Single Judge, instead of jumping to a conclusion solely
based on Rule 27 of the Pension Rules should have examined the
relevant provisions of the Code before axing down the criminal
prosecution in respect of serious offences.”
This Court also by relying the said decision of the
Supreme Court, in the case of Fani Bhusan Das & Anr. Vs. State
of Odisha (CRLMC Nos. 258 &686 of 2004, and 2626 of 2007),
reported in 2018 SCC Online 310, has observed that the provision
of the Cr.P.C. shall have an overriding effect and shall prevail
notwithstanding any provision in the Pension Rules, and therefore,
the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.
So the contention of these two petitioners to give them
immune from criminal prosecution by virtue of Rule-7 of the OCS
(Pension) Rules is found without substance and accordingly rejected.
19. A further contention is made on behalf of the petitioner
Jitendranath Patnaik that in absence of all legal heirs of the lessee
Late Bansidhar Patnaik, the prosecution against him alone is not
maintainable. This contention has no leg to stand because as per the
allegation he is the only legal heir of late Bansidhar Patnaik, who
applied for renewal by producing the forged WILL and is also the
beneficiary of the ill-got minerals. When other legal heirs have not
played any role in such illegal mining, they need not be brought into
the sphere of prosecution because onl--y being the legal heirs under
the law will not attract any offence itself, without actus reus and mens
rea.
20. In view of the discussions made above, the CRLREVs are
found devoid of any merit and accordingly all these Criminal
Revisions stand dismissed.
No order as to costs.
..…..………………..
B.P. Routray, J.
Orissa High Court, Cuttack.
The 6th August, 2020/CRB
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