State of Orissa Vs.
Nalinikanta Muduli  Insc 454 (12 August 2004)
Arijit Pasayat C.K.
Thakker (Arising out of Slp (Crl) No.3708-3710/2003) Arijit Pasayat, J.
The State of Orissa questions legality of the judgment rendered by a learned
Single Judge of the Orissa High Court disposing of three petitions filed under
Section 482 of the Code of Criminal Procedure, 1973 ( in short the 'Code'). The
petitions were filed, inter alia, - (1) to quash the charge sheet filed by the
Investigating Officer (Vigilance Cell) Bhubaneshwar, (2) to quash the order
dated 9.12.2002 taking cognizance of offences punishable under Section 468, 471
and 420 of the Indian Penal Code, 1860 ( in short the 'IPC'); and (3) to quash
the order passed rejecting the prayer in terms of Section 205 of the Code and
rejecting the prayer to recall the order directing issuance of non-bailable
warrant of arrest. It is to be noted that Vigilance G.R. Case No. 17 of 2001
was at the relevant point of time pending in the Court of Special C.J.M.
(Vigilance), Bhubaneswar. The starting point of litigation was drawing up of
first information report on 29.5.2001 by the Inspector of Police, Vigilance
Cell, Unit Office, Bhubaneswar. Though several government officials were
charged for commission of offences under the IPC and the Prevention of
Corruption Act, 1988 ( in short 'the PC Act'), according to the accused the
investigating officer did not find sufficient evidence to bring home charge of
complicity of the government officials and charge-sheet was filed only so far
as the present accused respondent is concerned.
As cognizance was taken and the prayer to dispense with personal appearance
and recall of the non-bailable warrant of arrest issued were rejected petitions
were filed under Section 482 of the Code before the High Court. A separate
petition under Section 482 of the Code was filed taking the stand that the
concerned investigating officer had no jurisdiction to investigate the matter
and, therefore, the proceedings before the trial court were vitiated being
without jurisdiction. The High Court considered the last described petition as
the pivotal one and took others to be consequential. By the impugned judgment
the High Court held that investigation was unauthorized and, therefore, the
proceedings were vitiated. Reliance was placed on a decision of the Patna High
Court in J..A.C. Saladanha v. Inspector General of Police, Bihar, Patna and
Ors. ( 1979 ILR (Patna) 459 ). Accordingly, proceedings were quashed. High
Court did not think it necessary to deal with the other petitions separately.
In support of the Appeal learned counsel for the State submitted that the
High Court's approach was clearly erroneous. Reliance on the decision of the
Patna High Court, referred above, was really of no consequence as the judgment
in question has been set aside by this Court in State of Bihar and Another vs.
J.A.C. Saldanha and Ors. etc.
[(1980) 1 SCC 554 ].
Learned counsel for the appellant-State further submitted that the decision
of the Patna High Court, on which the reliance was placed has been set aside by
this Court as noted above and unfortunately effect of the judgment by this
Court had not been considered by the High Court.
Per contra, learned counsel appearing for the respondent submitted that the
whole case was outcome of political conspiracy and mala fides. If the
government officials were not proceeded with, it is strange that the respondent
alone was picked up and accusations were made against him alleging commission
of various offences. Therefore, it was submitted that the High Court's order
does not need any interference.
It is strange that a decision which has been overruled by this Court nearly
quarter of a century back was cited by the Bar and the court did not take note
of this position and disposed of the matter placing reliance on the said
overruled decision. It does not appear that the decision of this Court
reversing the judgment of the High Court was brought to the notice of the
learned Single Judge who was dealing the matter. It is a very unfortunate
situation that learned counsel for the accused who is supposed to know the
decision did not bring this aspect to the notice of the learned Single Judge.
Members of the Bar are officers of the Court. They have a bounden duty to assist
the Court and not mislead it. Citing judgment of a Court which has been
overruled by a larger Bench of the same High Court or this Court without
disclosing the fact that it has been overruled is a matter of serious concern.
It is one thing that the Court notices the judgment overruling the earlier
decision and decides on the applicability of the later judgment to the facts
under consideration on it. It also does not appear that learned counsel
appearing for the respondent before the High Court did not refer to judgment of
this Court. All this shows that the matter was dealt with very casually.
From the judgment of the High Court it is noticed that the hearing was
concluded on 13.3.2003 and the judgment was delivered on 25.4.2003. It was
certainly the duty of the counsel for the respondent before the High Court to
bring to the notice of the Court that the decision relied upon by the
petitioner before the High Court has been overruled by this Court. Moreover, it
was duty of the learned counsel appearing for the petitioner before the High
Court not to cite an overruled judgment. It is not that the decision is lost in
antiquity. It has been referred to in a large number of cases since it was
rendered. It has been referred to recently in many cases e.g. S.M. Datta v.
State of Gujarat ( 2001 (7) SCC 659), M.C. Abraham V. State of Maharashtra (
2003 (2) SCC 649), Union of India v. Prakash P. Hinduja ( 2003 (6) SCC 195) and
earlier in many oft cited decisions in State of Haryana v. Bhajan Lal ( 1992
(1) SCC 335 ), Janta Dal v. H.S. Chowdhary ( 1992 (4) SCC 305), Union of India
v. W.N. Chadha ( 1993 Supp. (4) SCC 260) and State of Bihar v.
P.P. Sharma ( 1992 Supp. (1) SCC 222). We can only express our anguish at
the falling standards of professional conducts. Impugned judgment of the High
Court is set aside. We remit the matter back to the High Court so that it can
deal the petitions afresh and decide on merits taking into account the decision
and all other relevant aspects of this Court. All the petitions before the High
Court which were disposed of by the impugned judgment shall stand restored to
its original position to be dealt with in accordance with law.
Appeals are allowed to the extent indicated above.