Md. Musa Kazmi v. State Of Bihar — 1998 DIGILAW 606 (PAT)

Judgment N.K.Sinha, J. 1. The application is being disposed of at the stage of admission itself after hearing the learned Counsel for the petitioner the State of Bihar Opposite Party. 2. The petitioner is aggrieved by the order dated 28.5.1994 passed by the learned Special Judge (Vigilance), South Bihar, Patna in Special Case No. 87/90 arising out of Vigilance case No. 49/90. By the said order cognizance had been taken against the petitioner and three others under Sections 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 correspon ding to Section 13(l)(d) read with Section 15 of the Prevention of Corruption Act, 1988 (hereinafter referred to the Act) and Section 120-B/109 of the Indian Penal Code and warrant of arrest was issued against the accused persons including the petitioner. The petitioner in this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to the Code) has sought quashing of the aforesaid order taking cognizance and the entire criminal proceedings launched against him on that basis. 3. The petitioner was the Finance Officer of the Bihar Intermediate Education Council (hereinafter called the Intermediate Council). The Intermediate Council was established under a Government Ordinance issued in the year 1980. The Intermediate Council was subsequently superseded by the Government and from 19.5.1985 to January, 1989 it remained under the control of the Secretary of the Education Department, Government of Bihar, Patna. A written report was lodged by Deputy Superintendent of Police, Vigilance on 5.11.1990 containing the allegation that illegal appointments had been made after collecting the illegal gratification for that purpose by the petitioner and the others. Vigilance P.S. Case No. 49/90 was registered on its basis giving rise to Special Case No. 87/90. After completion of investigation, the Investigating Officer submitted charge-sheet whereupon impugned order taking cognizance and issuing warrant of arrest against the petitioner and others was passed. Though the application for quashing was filed more than two years ago i.e. 11.7.1996, the case is still at the same stage when the impugned order taking cognizance was passed. Counsel appearing for the parties have conceded at the bar that charges have not yet been framed although no order staying the proceeding before the Special Judge had been passed in this case. 4. Counsel appearing for the parties have conceded at the bar that charges have not yet been framed although no order staying the proceeding before the Special Judge had been passed in this case. 4. A number of grounds were taken in the application for quashing the impugned order taking cognizance, such as that it was barred by limitation under Section 468 of the. Code as also on account of absence of any order sanctioning the prosecution of the petitioner for offences under the Act. Both these grounds were given up by the Counsel appearing for the petitioner. Obviously, the provisions of Section 468 of the Code are not attracted on the facts of the case and as stated by the learned Counsel in course of argument the necessary order sanctioning the prosecution against the petitioner had already been passed by the required authority. 5. Learned Counsel for the petitioner, however, advanced the argument that even on the allegation made in the First Information Report no offence was disclosed to have been committed by the petitioner, and hence, the order taking cognizance is an abuse of the process of the Court and its quashing is necessary to secure the ends of justice. Learned Counsel appearing for the State-Vigilance, however, contended that the First Information Report and the documents annexed therewith clearly disclosed sufficient materials to make out a prima facie case of commission of the offence by the petitioner for which cognizance has been taken. I have perused the First Information Report as also copies of document annexed therewith in the light of the submissions made by the parties. The written report which is the basis of the First Information Report is a detailed one and contains a number of an-nexures which are mostly copies of the order-sheets of the Intermediate Council commencing from, 31.12.1986. The First Information Report mentions that after a perusal of the concerned file regarding appointments to Class III and Class IV posts of the Intermediate Council it had transpired that Shri Surendra Prasad Rai M.L.A. had made request to the then Education Minister more than once recommending for appointment of one Shri Nawal Prasad Singh. The petitioner, who happened to be Finance Officer of the Intermediate Council had recommended for the appointment of Shri Nawal Prasad Singh but the then Education Secretary, Shri Bhaskar Banerjee had turned down the proposal. The petitioner, who happened to be Finance Officer of the Intermediate Council had recommended for the appointment of Shri Nawal Prasad Singh but the then Education Secretary, Shri Bhaskar Banerjee had turned down the proposal. The Education Secretary took the view that the Intermediate Council is presently superseded and the question of making appointments can be considered only after the Intermediate Council is constituted afresh. When Shri Surendra Prasad Rai again wrote a letter to the Education Minister for the appointment of Nawal Prasad Singh, the petitioner put up a note on 26.3.1987 that no post in the cadre of Assistant or any other cadre was vacant in the Intermediate Council and, hence, appointments cannot be made until the creation of additional posts of Assistant. The petitioner had, therefore, expressed the opinion that matters regarding appointments can be considered only after necessary order sanctioning the posts after the recons-titution of the Intermediate Council are received. The then Secretary Bhaskar Banerjee referred the file to the Education Minister along with his recommendation not to make any appointments in the Intermediate Council and the then Education Minister by his note dated 16.4.1987 approved the note of the Education Secretary. To cut a long story short, Shri Bhaskar Banerjee was transferred and he was replaced by Shri Rama Shankar Tiwari. Thereafter as many as 77 illegal appointments were made. Initially on the application dated 6.5.1986 by one Ranjit Kumar Mishra, Shri Tiwari made a recommendation that the applicant be appointed as the Intermediate examinations were continuing and the work load will increase at the time of examining the answer books. On that very day, Shri Tiwari also forwarded the application of one Shri Sanjay Kumar Mishra. The petitioner, it is alleged recommended the appointments of the above aforementioned applicants on 27.5.1988. Subsequently the Education Minister also approved the proposal on 27.8.1988 and thereafter both of them were appointed to the post of Routine Clerks. The allegation is that in this way in between May, 1988 and November, 1988 altogether 77 illegal appointments were made during the tenure of Shri Tiwari as Education Secretary. It was alleged that for making these appointments the posts were not sanctioned by the State Government and no advertisement was ever issued for filling the posts. The allegation is that in this way in between May, 1988 and November, 1988 altogether 77 illegal appointments were made during the tenure of Shri Tiwari as Education Secretary. It was alleged that for making these appointments the posts were not sanctioned by the State Government and no advertisement was ever issued for filling the posts. No information was given to the Employment Exchange nor any applications were invited and without constituting an appointment committee the appointments of favourites were made. 6. Learned Counsel for the petitioner argued that the petitioner was not the appointing authority and all the appointments were made at the instance of the Education Secretary. The petitioner being only a Finance Advisor was duty bound to carry out the orders of the Education Secretary and, hence, he had no mens rea. In this connection, learned Counsel also referred to the fact that though the Education Secretary Shri Rama Shankar Tiwari was also made an accused, the Government of India has not been pleased to accord sanction for his prosecution. Learned Counsel for the State Vigilance, however, submitted that the petitioners conduct in the matter of making the illegal appointments was such that it was a criminal misconduct within the meaning of Section 13 of the Act. It was pointed out that the petitioner was aware of the order passed by the previous Education Secretary Mr. Bhaskar Banerjee. The petitioner had himself given a note that appointments cannot be made unless the State Government sanctioned the posts but subsequently after the transfer of Shri Banerjee as a Education Secretary he did not bring this fact to the knowledge of his successor Shri Tiwari and, hence, the conduct of the petitioner left no room for doubt that he was deliberately concealing the facts with a view to make the illegal appointments for extraneous considerations. There was some argument at the bar as to whether the conduct imputed to the petitioner in the First Information Report amounted to criminal misconduct or not. There was some argument at the bar as to whether the conduct imputed to the petitioner in the First Information Report amounted to criminal misconduct or not. In this connection, the provisions of Section 13(l)(d) of the Act were referred to which provides that a public servant is said to commit the offence of criminal misconduct if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage,or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. It was argued on behalf of the petitioner that the appointments were made on ad hoc basis on account of the exigencies of the administration since the work of the Intermediate Council was likely to increase manifold on account of examinations which were likely to be held sometime later. Since the appointments of Routine Clerks were made on an ad hoc basis, the procedure for making regular appointments was not required to be followed. It was also pointed out that there is no material in the case diary to support the allegation that the appointments were made after obtaining illegal gratification. Learned Counsel for the Vigilance argued that the copies of the order-sheet enclosed with the written report left no room for doubt that the petitioner had given some notes favouring the appointments by abusing his official position and this amounts to dishonesty on his part and would be considered use of corrupt or illegal means on his part. It was argued on behalf of the State Vigilance and, in my opinion, for very good reasons that the Court taking cognizance was only required to consider the allegations made and not weigh them in the light of the defence case. Such power can be exercised only at a later stage when the case goes to trial and to a limited extent even to the stage of framing of charge. As already mentioned earlier, the stage for framing of charge has not yet even reached. Such power can be exercised only at a later stage when the case goes to trial and to a limited extent even to the stage of framing of charge. As already mentioned earlier, the stage for framing of charge has not yet even reached. Learned Counsel for the petitioner nonetheless continued to advance arguments in support of the defence case that there was nothing fishy about the appointments made and even if some irregularity had been committed which the petitioner nonetheless denies, it was on account of the order of the superior and the petitioner could have done nothing in the matter. It was also mentioned on behalf of the petitioner that most of the appointments said to have been made illegally, have been allowed to stand and the incumbents of the posts still continued in service and some of them have even become Assistant Secretary in the Intermediate Council. The argument in short is that if such appointments have subsequently been regularised there was no sense in prosecuting the petitioner for any criminal offence connected with the making of such appointments. 7. It was also argued on behalf of the petitioner that in a case where the petitioner has no chance of being convicted in course of trial, it would be waste of Courts valuable time in making him face the trial. Learned Counsel cited some decision of the Apex Court including one in Satish Mehra V/s. Delhi Administration and others, reported in (1996) 9 SCC 766 in support of his contention that the impugned order taking cognizance is not legally sustainable. The decisions cited including Satish Mehras case (supra) are with regard to the power of the Court at the stage of framing charge under Section 227 of the Code. Learned Counsel for the petitioner has not been able to cite one decision of the Apex Court in which the Apex Court has taken the view that the defence of the accused should be considered by the Court at the time of taking cognizance. The legal position is almost well settled. At the time of taking cognizance the Court is to go by the allegations made and was not required to consider the defence case with a view to take a decision whether the allegations are true or false. The legal position is almost well settled. At the time of taking cognizance the Court is to go by the allegations made and was not required to consider the defence case with a view to take a decision whether the allegations are true or false. In other words, the allegations made in the First Information Report Complaint have to be taken on their face value and in their entirety and the order taking cognizance on basis of such a First Information Report and complaint petition cannot be quashed unless the Court was of the view that the allegations made did not disclose commission of the offence for which the cognizance had been taken. It is true that cognizance can be quashed if there was any statutory requirement whereby the Court was not competent to take cognizance such as, an order sanctioning prosecution. The Apex Court in State of Haryana and others V/s. Bhajan Lal, reported in AIR 1992 Supreme Court 604 had been pleased to indicate one category of cases where the High Court may interfere in proceedings relating to cognizance offence to prevent abuse of the process of any Court or otherwise to secure the ends of justice such as, cases where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution or continuance of the proceeding. The contention of the petitioner that there was material on the record that he had acted in the matter of appointments to some of the posts in the Intermediate Council on the direction of the Education Secretary on the application of the candidates and, hence, he was duty bound to carry out the order of the controlling authority, is in the nature of a defence and as already observed earlier the Court taking cognizance was not required to consider the defence of the accused persons while taking cognizance. What has been stated in paragraph 20 of the application is a defence against the allegation made wherein the petitioner has stated that he was duty bound to carry out the order of his controlling authority and if he had raised any objection he would have been held guilty of an act of in subordination besides exposing himself to the charge that he has created hindrance in conducting the Intermediate examination which was scheduled to be held within a short time. Other paragraphs of the application including paragraph 21 and 22 only mention the helplessness of the petitioner in the matter. It was also pointed. out that the petitioner was involved only with eight such appointments out of the 77 appointments allegedly made in this case. It was also pointed out that there is no material in the case diary that the appointments were made on payment of illegal gratification. As already observed earlier going by the allegations made in the First Information Report, it is difficult to draw a conclusion that there was no ingredient of criminal misconduct as against the petitioner within the meaning of Section 13 of the Act. Hence, the impugned order taking cognizance cannot be successfully impeached on that ground. The petitioners defence as against the allegation made if any, could not be considered at the time of taking cognizance and the impugned order taking cognizance cannot be described as an abuse of the process of the Court on that score. 8. Thus, for the foregoing reasons, I find no merit in this application and dismiss it. 9. However, observations made in course of the order were only for the purpose of disposal of this application and shall not be construed as an expression of opinion on the merit of the case and the petitioner shall have the liberty to raise all the points available to him at the stage of framing of charge.