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2003 DIGILAW 228 (JHR)

Barnadett Karketta v. State of Jharkhand

2003-02-18

D.N.PRASAD

body2003
Order This application has been filed under Article 226 of the Constitution of India for quashing the entire criminal proceedings including the order taking cognizance dated 19.8.1998 in Special Case No. 35 of 1989 arising out of Kolebira P.S.Case No. 23 of 1989, pending in the court of Sri D. K. Lal, Special Judge (Vigilance), Ranchi. The petitioner further challenged the order of discharge dated 18.6.2002 passed by the Special Judge (Vigilance) Ranchi claiming to be erroneous, illegal and liable to be struck down. 2. The brief facts of the prosecution case is that on the basis of some report by farmers of Village Barasaloya made to the Deputy Development Commissioner, Gumla to the effect that the Officer and the employees of Kolebira Block Office are demanding bribe in the form of percentage for payment of money under the Scheme which has been sanctioned for construction of Well on their lands on Government subsidy. An enquiry was conducted by the District Development Officer, Gumla who after examining several persons during enquiry submitted his report on the basis of which a first information report was registered under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act, 1988 (the Act). The police investigated into the matter and submitted charge sheet in the case. 3. The learned Special Judge took cognizance of the offence after finding prima facie case under sections 7, 8, 12 and 13 of the Act against the accused persons including the petitioner by order dated 19.8.1998. The petitioner thereafter filed a petition under section 239 of the Code of Criminal Procedure (the Code) for discharge and after hearing both the parties, the learned Special Judge passed the order on 18.6.2002 rejecting petition for discharge. 4. Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of the petitioner submitted that the learned court below committed error in taking cognizance and also rejected the petition for discharge illegally as no case is made out against the petitioner. There is no allegation that the petitioner has abetted any offence punishable under section 7 or 11 of the Act. Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of the petitioner submitted that the learned court below committed error in taking cognizance and also rejected the petition for discharge illegally as no case is made out against the petitioner. There is no allegation that the petitioner has abetted any offence punishable under section 7 or 11 of the Act. It is further submitted that no sanction has been granted by the competent authority for prosecution under section 7 or 13 of the Act and the Sanctioning authority while according sanction for prosecution has not applied his judicial mind as the Deputy Commissioner has mechanically taken note of the provision of the Indian Penal Code and the Old Prevention of Corruption Act, which is not the subject matter of the case. It is further submitted that a departmental enquiry was also initiated against the petitioner after suspending her and she submitted her explanation before the Conducting Officer of the departmental proceeding and the petitioner was exonerated from the charges in the said departmental proceeding by order dated 10.9.1997. Since both criminal proceeding as well as the departmental proceeding is based on the same facts and, as such, this criminal proceeding is liable to be struck down. The learned counsel also relied upon the case of Supreme Court in P. S. Rajya VS. State of Bihar [(1996)9 Supreme Court Cases 1]. 5. On the other hand, Mr. Nilesh Kumar, J.C. to learned Advocate General appearing on behalf of the respondent submitted that the learned court below rightly passed the order rejecting the discharge petition after finding sufficient materials for framing charge. It is further submitted that the petitioner filed this case after lapse of five years after taking cognizance as cognizance was taken as back as on 19.8.1998 and there was no grievance of the petitioner against the order of cognizance but when the discharge petition was rejected, this application has been filed in the garb of Article 226 of the Constitution of India without having any merit for quashing the entire criminal proceedings including the order taking cognizance at the very belated stage. It is further submitted that actually the District Development Officer had enquired into the matter thoroughly and after his enquiry report having been submitted before the competent authority, a first information report was lodged, as there was specific and direct allegation against all the accused persons including the petitioner for demanding/taking bribe from the innocent villagers. It is further submitted that sanction was duly accorded in the matter for prosecution against the accused persons including the petitioner who was admittedly posted in the said block at the relevant time. It is further argued that the facts of the case relied by the learned counsel for the petitioner are quite distinguishable from the facts of the instant case, which are in respect of direct, allegation/evidence for demand and taking bribe from the villagers and the court below rightly passed the order rejecting the prayer of the petitioner for discharge. 6. From perusal of the record, it is obvious that there was a report by farmers to the Deputy Development Commissioner, Gumla about demanding of bribe in terms of percentage for payment of money under the Scheme to which the District Development Officer, Gumla enquired into the matter and submitted that report finding prima facie case, on the basis of which the, first information report was lodged against the accused persons including the petitioner who was an Assistant posted in the said Block at the relevant time. The police investigated into the case and submitted charge sheet in the matter. Due sanction order was also accorded by the Deputy Commissioner for prosecution against the accused persons including the petitioner, which will be evident from Annexure 4. 7. It is true that a departmental enquiry was initiated against the petitioner and others as regards to the demand of bribe and also the petitioner had received bribed money from different persons in connection with the said Scheme for construction of Well. The Project Officer, who was made the Enquiry Officer, submitted his report in respect of the petitioner stating that on the basis of the written statements of Mansidh Topno, Nathaniel Topno and Urvanish Topno, the charge does not appear to be true against the petitioner. The Project Officer, who was made the Enquiry Officer, submitted his report in respect of the petitioner stating that on the basis of the written statements of Mansidh Topno, Nathaniel Topno and Urvanish Topno, the charge does not appear to be true against the petitioner. It may be noted here that he submitted his inquiry report as against eight persons including the petitioner by order dated 12.4.1996 (Annexure 8) and the charges against all of them were found to be false but from, the order passed by the Deputy Commissioner, Gumla vide order containod in memo No. 580(11 )/Establishment dated 10.9.1997 (Annexure 9), it appears that three persons were found guilty and punished as their increments were held up, whereas, four persons including the petitioner were discharged. But it is not known as to on what basis the Deputy Commissioner, Gumla found three persons, namely, Shri Krishna Sahu, Shri Mahesh Jha and Shri Sohan Nayak guilty when the Enquiry Officer submitted his report flatly finding all the accused persons including the petitioner not guilty and the charges were not found to be true. But even then the Deputy Commissioner found three persons guilty and, accordingly, they were punished. The order of the Enquiry Officer appears to be vague which does not discuss the entire evidence collected during enquiry in detail and those persons said to have paid the bribed money have not been examined on oath. It is also clear that there are several witnesses examined by the Investigating Officer during investigation and they have supported the prosecution case about demand of bribe. Thus the enquiry report and the order passed by the Deputy Commissioner, Gumla do not appear to be consistent. Moreover all these facts are to be thrashed in detail during trial when both the parties will get opportunity to place and controvert the same. In the instant case, the first information report was lodged after enquiry report of the District Development Officer, Gumla during which several persons were examined on the point of charges. 8. Moreover all these facts are to be thrashed in detail during trial when both the parties will get opportunity to place and controvert the same. In the instant case, the first information report was lodged after enquiry report of the District Development Officer, Gumla during which several persons were examined on the point of charges. 8. The facts of the case relied by the learned counsel for the petitioner is also distinguishable from the facts of the instant case as in the said case there was a dispute in respect of valuation of the building constructed by the appellant and the allegation was in respect of earning disproportionate of his income, but in the instant case there is a direct and specific allegation against the petitioner and others about demand and also for taking bribe from the innocent villagers for the Scheme which has been allotted by the Government itself. It may be noted here that cognizance in the matter was taken in the case by order dated 19.8.1998 by finding prima facie case. By putting Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act in the sanction order itself will not vitiate the whole order of sanction for prosecution, which was accorded after being satisfied with the report for the prosecution. However, the question of sanction is to be left open to be decided at the time of final hearing of the trial. It is also well settled that charge can even be framed on the material on record capable of inferring strong suspicion about the commission of offence. At this stage, it is not required to consider the evidence collected during investigation meticulously. There are sufficient materials available at this stage for framing charge against the petitioner and, as such, the learned court below has rightly passed the order rejecting the petitioner's petition for discharge, which does not require to be interfered with. 9. In the result, I do not find any merit in this application, which is, accordingly, dismissed.