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2002 DIGILAW 322 (JHR)

Bharat Singh v. State Of Jharkhand

2002-03-08

VIKRAMADITYA PRASAD

body2002
ORDER Vikramaditya Prasad, J. 1. This writ application under Articles 226, 227 of the Constitution read with Section 482 Cr. P.C. has been filed for quashing the entire criminal case, being RC. Case No. 8(A)/94-D, against the petitioner pending in the Court of Special Judge, C.B.I., Dhanbad and also for quashing the order dated 16.1.2002 passed by the learned Special Judge rejecting the bail petition filed by the petitioner. 2. The petitioner was the General Manager of Bastakola Colliery during the period 1989 to 1994. Coal costing to the June of Rs. 40 crores approximately were found short in stock during his period. Sub- sequently, over-production was also reported and this petitioner had recommended to the higher authorities for granting incentives to the workers against the over-production made by them. On these two grounds the C.B.I, brought the aforesaid case. In the F.I.R., there were five persons, out of whom two persons namely Harihar Singh and S.P. Verma were enlarged on bail by this Court. The prayer for anticipatory bail of this petitioner was rejected. The petitioner had also filed a writ application being W.P. (Cr.) No. 188/2001 for the similar relief. 3. Honble the Chief Justice had disallowed the prayer for quashing the proceedings and left the matter of charge/discharge purely on the merits of the case to be decided by the Court below. Being totally uninfluenced by the said order, the Court below was directed to pass the order. The petitioner was also granted liberty to apply afresh for grant of bail along with his discharge petition and if the trial Court, on consideration of the petitioners discharge application, was of the view that the discharge application did not deserve to be allowed, the Court below might pass an appropriate order on the bail application of the petitioner without being influenced or prejudiced by any earlier order passed by this Court or any other Court rejecting the petitioners prayer for grant of bail. 4. In the aforesaid background of (his case, the petitioner had moved the Court below for discharge as well as for grant of bail and by the impugned order dated 16.1.2002 the prayer for bail of the petitioner has be en rejected by the Court below. 4. In the aforesaid background of (his case, the petitioner had moved the Court below for discharge as well as for grant of bail and by the impugned order dated 16.1.2002 the prayer for bail of the petitioner has be en rejected by the Court below. By order dated 8.1.2002, the learned Special Judge, C.B.I., Dhanbad, rejected the prayer of the petitioner for discharge under Section 238 of Cr PC and again by order dated 16.1.2002 he rejected the prayer of the petitioner for grant of bail. 5. The main argument of the learned counsel for the petitioner is that the learned Court below was, in fact, prejudiced by the order of rejection of the prayer for bail as also of the quashing the proceedings in the criminal case in question passed by this Court in W.P. (Cr.) No. 188/2001, when there was a direction to the Court below to pass an order without being influenced by the earlier order passed by this Court. Mr. Banerjee, learned Sr. Counsel appearing for the petitioner, submits that the learned Court below had erred in law by violating the mandate of the Court passed in the aforesaid writ application. He also further argued that the petitioner was a General Manager and as such the coal was not in his Immediate custody and as there is a hierarchy of different officers and number of officers who were below him, he cannot be held responsible for the lapses committed on behalf of such officers and that he recommended for grant of incentives to the workers who made overproduction and that was done in the official capacity of the petitioner, for which he cannot be held responsible. Learned Sr. Counsel for the petitioner further argued that the petitioner cannot be held responsible in the case as he has superannuated from the service and that his involvement in the case is against facts and therefore, the learned Special Judge should have discharged him. 6. So far as the prayer for bail is concerned, the learned Sr. Learned Sr. Counsel for the petitioner further argued that the petitioner cannot be held responsible in the case as he has superannuated from the service and that his involvement in the case is against facts and therefore, the learned Special Judge should have discharged him. 6. So far as the prayer for bail is concerned, the learned Sr. Counsel appearing for the petitioner has submitted that as the other two accused persons have been granted bail in the same case and the petitioner was, moreover, a man of 65 years and had earned awards for his meritorious service during the period of his service and after his retirement, this case was instituted and is also suffering from serious heart ailments, he should have been enlarged on bail by the Court below. Learned Sr. Counsel seriously contended that on both the counts, the learned Court below violated the orders of this Court passed in W.P. (Cr.) No. 188/2001 and thus, has violated the procedures prescribed and it is against the rule of law. 7. There are two kinds of orders--one is when the higher Court grants a particular relief and the execution aspect is left to the Court below and second is the higher Court does not grant any relief, but leaves it to the Court concerned itself to decide the matter as per law. If a higher Court refuses to pass any order and if it does not pass and directs a particular Court to pass a particular order, then it may on occasions amount to interference with the independence of the Courts. Therefore, when the second type of order is passed, then the liberty of the Court is not at all restrained and the Court concerned is expected to pass the order on the materials on record and in accordance with law. In the order of this Court referred to by the learned Sr. Counsel appearing for the petitioner, i.e. the order passed in W.P. (Cr.) No. 188 of 2001, no specific directions has been given to the Court below for granting the applications for bail discharge, rather liberty has been left with the Court below to pass the order without being influenced or prejudiced by ;my order of this Court or any other Court rejecting the petitioners prayer for grant of bail. So positive direction to grant bail is nowhere in the order passed in the aforesaid writ application and positive direction to discharge the petitioner is also nowhere in the order passed in the aforesaid writ application i.e. W.P. (Cr.) No. 188/2001. On perusal of the impugned order it transpires that the learned Court below has already considered the provisions of Section 239 Cr. P.C. and also certain circulars issued by the Coal India Limited, whereunder the responsibility of the loss is fixed on certain officers including the General Manager. Therefore, when the Court below had acted as per the law and the opinion of the Court is based on the facts, it cannot be disturbed in this writ Jurisdiction in the aforesaid circumstances. 8. So as there is no Illegality in the impugned order and there is no violation of the fundamental rights of the petitioner, on the prayer of his discharge being rejected. 9. So far the prayer for grant of bail is concerned, it appears that the Court below has rejected the petition, but it appears that it has not considered the fact that the other two accused persons having a worse case then that of the petitioner have been enlarged on bail. The learned Court below, quoting the order passed in Cr. Misc. No. 2791/2001, whereby the prayer for anticipatory bail of the petitioner was rejected, it appears, has passed its order. It is not clear as to whether the argument that two similarly situated persons have been released on bail was pleased or not. If the prayer for grant of bail has been rejected by the Court below, seeking to quash the order of rejection of bail in the writ jurisdiction is not, in my opinion, the proper legal remedy, which has been sought by the petitioner. Learned Sr. Counsel appearing for the petitioner has submitted that earlier for quashing the entire criminal proceedings, a writ application had already been filed. Therefore, in this writ application also, the same prayer along with further prayer for quashing the order of rejection of bail has been made. Since in the earlier writ application same relief for quashing the proceedings was rejected, such a relief cannot be sought afresh in the instant writ application is the argument of the learned Counsel for the State. 10. Since in the earlier writ application same relief for quashing the proceedings was rejected, such a relief cannot be sought afresh in the instant writ application is the argument of the learned Counsel for the State. 10. In the aforesaid circumstances, I find no merit in this writ application, which is accordingly dismissed. The petitioner has definitely a better equity in his favour because the two similarly situated accused persons have been enlarged on bail and if aggrieved and if advised, he can move this Court for a regular bail against the order of rejection of his bail petition by the learned Special Judge, C.B.I. Dhanbad.