I.MAHANTY, J. CRLMC. NO.1612 OF 2010 (28.03.2011) MADHUSUDAN MISHRA …. …. Petitioner. .Vrs. STATE OF ORISSA ……….. Opp.Party. PREVENTION OF CORRUPTION ACT, 1988 (ACT NO.49 OF1988) – S.13 (1) (d), For Petitioner - K.P. Bhaumik For Opp.Party – Shri P.K.Pani Heard Mr. K.P.Bhoumik, learned counsel for the petitioner and Mr.P.K.Pani, learned Additional Standing Counsel for the Vigilance Department. In this application under Section 482 Cr.P.C. petitioner-Madhusudan Mishra has challenged the order dated 6.3.2010 passed in T.R. No.77/79 of 09/05 passed by the learned 2nd Additional Special Judge (Vigilance), Bhubaneswar taking cognizance of offence under Section 13(1) (e)/7, (d) in place of (e) of the Prevention of Corruption Act, 1988 punishable under Section 13(2) of the Act. Mr. Bhoumik, learned counsel for the petitioner submits that on plain reading of the F.I.R. (Annexure-1) even if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety, no offence is made out against the petitioner. In this respect Mr. Bhoumik placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of U.P. v. R.K.Srivastava and others, reported in AIR 1989 SC 2222 as well as the judgment of this Court in the case of Gopinath Pandhi v. State of Orissa and another, reported in (1994) 7 OCR 783. Mr. Bhoumik contends that the petitioner in question was working as S.I. of Police in G.R.P.S. land it would be seen that F.I.R. No.91 dated 12.12.2002 had been lodged for offences under Sections 326/307, I.P.C. against unknown accused person. It further appears that the brother-in-law of the informant had been apprehended in connection with the aforesaid case and it is alleged that the petitioner made a demand of illegal ratification of Rs.1000/- for the purpose of assisting the accused to falsify the medical certificate. Mr.Bhoumik contends that since the petitioner himself had registered the said F.I.R. and he had no control or power over the doctor who conducted the investigation in to the inquiries, on demand by such a person i.e., the petitioner can be stated to be demand for illegal ratification for due discharge of official duty. It is stated that the F.I.R. had been filed by the brother-in-law of the accused for the purpose of wrecking vengeance on the career of the petitioner. Mr. Pani, learned Addl. Standing Counsel for the Vigilance Department on the other hand, submits that in the meantime trial has already been commenced and one witness has already been examined. Apart from that, he placed reliance on the judgment of the Hon’ble Supreme Court in the case of Dhaneswar Narain Saxena vs. The Delhi Administration, reported in AIR 1962 SC 195. On hearing the learned counsel for the parties and on perusing the judgments referred to and relied upon by the learned counsel for the parties, whereas the case of State of U.P. v. R.K.Srivastava (supra) the Hon’ble Supreme Court reiterated the settled principle of law that, if the allegations in the F.I.R. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R. should be quashed. In the case of Gopinath Pandhi v. State of Orissa (supra) this Court came to hold that a Court while framing charges should be satisfied that for such purpose there must be presumption of commission of an offence, apparent from the materials before the Court and there must be some evidence in support of the accusation. If the evidence relied upon by the prosecution even if, fully accepted does not show commission of an offence, then sufficient ground for proceeding with the trial is absent, therefore due care must be exercised by the trial Court while framing the charges or examining the accused persons as these are not matters of empty formality. With respect to the judgments referred to by the learned counsel for the petitioner, I am afraid that the same have no applicability to the fact situation that arise for consideration in the present case. The Hon’ble Supreme Court in the case of Dhaneswar Narain Saxena (supra) has clearly held that in order to constitute an offence under cl. (d) of s.5(1) of the Prevention of Corruption Act, 1947 (equivalent to s.13 (1) (d) of the 1988 Act), it is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. If a public servant takes money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, he commits an offence under S.5(1) (d) (equivalent to S.13(1) (d) of the 1988 Act), even though there was no question of his misconducting himself in the discharge of his own duty. I am of the considered view that the judgment of the Hon’ble Supreme Court in the case of Dhaneswar Narain Saxena (supra) has settled the issue raised herein, therefore, I find no justification to entertain the present application. Hence, the CRLMC stands dismissed. Application dismissed. 2