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CASE NO.: Appeal (crl.)  870-872 of 2004

PETITIONER: State of Orissa

RESPONDENT: Nalinikanta Muduli

DATE OF JUDGMENT: 12/08/2004

BENCH: ARIJIT PASAYAT C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP(CRL)No.3708-3710/2003)

ARIJIT PASAYAT, J.

               Leave granted.

               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 \026 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.

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       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 Supp.  (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.

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       Appeals are allowed to the extent indicated above.