Dilip Kumar Singh v. State through C. B. I. — 1998 DIGILAW 670 (PAT)

Judgment M.Y. Eqbal, J. This is an application under section 482 of the Code of Criminal Procedure for quashing the entire criminal proceeding in C.B.I. (R.C.) Case No. 24 of 1989 under sections 420 read with section 120B of the Indian Penal Code and section 5(1) (d) of the Prevention of Corruption Act, 1988. The petitioner also prayed for quashing the order dated 4.2.1998 passed by the Special Judge C.B.I., South Bihar, Patna, whereby he dismissed the application of the petitioner for discharging him in the aforementioned case. 2. I have heard Mr. Abhay Kumar Singh, Senior counsel appearing on behalf of the petitioner and Mr. Rakesh Kumar, counsel appearing for the C.B.I. 3. Mr. Abhay Kumar, learned Senior Counsel for the petitioner assailed the impugned order rejecting the prayer for discharge as being illegal and wholly without jurisdiction. Learned counsel firstly submitted that the impugned order is mechanical in nature inasmuch as the learned Special Judge failed to assign reason and passed the order in routine manner. Learned counsel further submitted that from the perusal of the materials available on the record it would be evident that no case is made out against the petitioner and there is no legal evidence against him which warrants his prosecution in the said case. Learned counsel in this regard relied upon the decisions of the Apex Court in the cases of State of Karnataka vs. Muniswamy and others ( AIR 1977 SC 1489 ), in the case of State of Maharashtra vs. Somnath Thopa ( 1996 (4) SCC 659 ) and in the case of State of Maharashtra vs. Priya Sharan Maharaj ( 1977 (4) SCC 393 ). 4. Before appreciating the submissions of the learned counsel it would be appropriate to look into the facts of the case. The prosecution story is that one S.C. Rampal, Lt. Commander at C.O. 1, Bihar Naval Unit, N.C.C. Patna, during the period 1986-87 entered into a criminal conspiracy with Brig. P.S. Dindra and his successor Sh. V.K. Kapoor and M/s. S.N. Traders and others causing misappropriation of Rs.14 lakhs on the pretext of construction of Navai facilities at Patna for the N.C.C. During investigation it revealed that the Bihar Government sanctioned Rs.6.50 lakhs to Patna N.C.C. for construction of Naval Jetty, Boat House and other facilities. P.S. Dindra and his successor Sh. V.K. Kapoor and M/s. S.N. Traders and others causing misappropriation of Rs.14 lakhs on the pretext of construction of Navai facilities at Patna for the N.C.C. During investigation it revealed that the Bihar Government sanctioned Rs.6.50 lakhs to Patna N.C.C. for construction of Naval Jetty, Boat House and other facilities. The construction was to be taken by the Bihar PW.D. but S.C. Rampal floated NIT for the purpose of project through P.W.D. It was alleged that in conspiracy with others, S.C. Rampal awarded contract to the higher bidder. The investigation further revealed that the petitioner who was working as Executive Engineer, Building Construction Department, Govt. of Bihar, entered into conspiracy with S.C. Rampal and others issued a letter under his signature, whereby he escalated the construction costs to Rs.14 lakhs which enabled diversion of fund to other head. The investigation further disclosed that the petitioner had accepted illegal remuneration from the contractor both in cash and in kind. The construction work was inspected by the technical experts of the Army and it was found unserviceable. 5. From the perusal of the impugned order it appears that the learned Special Judge after going through the prosecution story and the materials on record, came to the conclusion that there are sufficient ground for proceeding against the petitioner. Hence the court below refused to allow the petition for discharge. 6. In the counter affidavit filed by the C.B.I. it is stated inter alia that the charge-sheet against the petitioner was submitted in the year 1992 and cognizance was also taken on 26.8.1992 and the case of the petitioner was later on separated. It is further stated that sufficient materials have been collected against the petitioner which strongly suggest his involvement in the commission of offence. 7. In order to test the validity of the impugned order I will first discuss the decision of the Apex Court relied upon by the learned counsel appearing for the petitioner. In the case of State of Karnataka vs. Muniswamy and others (supra), the Apex Court discussed about the jurisdiction of the Court at the stage of framing of charge and the power of the Court under section 482 of the Code of Criminal Procedure. In the case of State of Karnataka vs. Muniswamy and others (supra), the Apex Court discussed about the jurisdiction of the Court at the stage of framing of charge and the power of the Court under section 482 of the Code of Criminal Procedure. Their Lordships held that in the exercise of this wholesome power under section 482 of the Code of Criminal Procedure, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. It was further held that the Court in exercise of power under Chapter XVIII of the Cr. P.C. should record reasons to enable the superior Court to examine the correctness of the reasons. In the case of State of Maharashtra vs. Somnath Thapa (supra) the Apex Court was considering the question whether charges should be framed or not in conspiracy case, held as under : "The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that, at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 8. In State of Maharashtra vs. Priya Sharan Maharaj's case (supra), the Apex Court while considering the question on nature of enquiry to be made by the Court while passing the orders under sections 227 and 228 of the Code of Criminal Procedure held as under: "The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijaya that at sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may. for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of the framing of charge the court has to be consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction." 9. Now coming back to the instant case. From perusal of the impugned order it appears that the court below has gone into the prosecution case and considered the materials available on record. Learned counsel for the C.B.I. brought to my notice certain materials inter alia that during investigation one J.N. Pathak, the then Head Clerk of the office of the Executive Engineer stated that he himself had dispatched the letter whereby the cost was escalated and he made entry in the dispatch register. Similarly one O.P. Gupta was examined during investigation who was S.D.O. of the said department stated that he himself protested the escalated costs mentioned in the letter. Learned counsel further referred to the statements recorded during the investigation. 10. Having regard to the seriousness of the offences and materials brought on record, I am of the opinion that the proceeding if allowed to continue would not be an abuse of process of court rather in the interest of justice it would be proper to allow the proceeding to continue so that the actual culprits should be punished for causing misuse of public money. It is not a case where there is no material on record on the basis of which any court could not come to the conclusion that the accused persons were in any manner connected with the incident leading to the prosecution. 11. For the reasons aforesaid, I do not find any merit in this application which is accordingly dismissed.