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2005 DIGILAW 424 (JHR)

Shiv Kumar Gupta v. State Of Jharkhand

2005-06-15

HARI SHANKAR PRASAD, SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER S.J. Mukhopadhaya, J. 1. This writ petition has been preferred by the petitioner on 9th December, 2004, praying therein, for issuance of an appropriate writ/order/ direction from this Court, commanding upon the concerned respondent to release him from jail custody forthwith in connection with R.C. No. 8 (A) of 2004 (AHD-R), registered under Section 7 of the Prevention of Corruption Act, now pending in the Court of learned Special Judge, CBI, Dhanbad. 2. The main plea taken is that the detention of the petitioner in jail custody with effect from 20th September, 2004 is in the teeth of the provisions under Section 309(2) of the Code of Criminal Procedure, remand having been made even after the statutory period without taking cognizance. 3. The case of the prosecution is that one Sri S.N. Jha (complainant) submitted a complaint to the Central Bureau of Investigation (hereinafter to be referred as CBI) on 18th April, 2004 to the effect that the petitioner Shiv Kumar Gupta, Superintending Engineer (Civil), Chanch Victoria Area, BCCL, Barakar, Controlling Officer of the complainant, demanded an illegal gratification of Rs. 10,000. It has been stated that in September, 2002, one Sri Baldeo Bhattacharya, the then Chief General Manager of Chanch Victoria Area of Bharat Coaking Coal Ltd., Dhanbad, having discussed ordered to the effect that he will supervise various ongoing civil works, undertaken by the Company, Bharat Coaking Coal Ltd. at Lalkdih, Dahibari Open Cast Project and Basanti Mata Colliery. It has been further stated that although there was a clear order of the then Chief General Manager that some of the works are to be supervised by him (complainant), they were entrusted to one Bimal Mukherjee, Senior Engineer (Civil), Chanch Victoria Area No. 12, BCCL, by Sri Shiv Kumar Gupta (petitioner). It has further been alleged that Sri Shiv Kumar Gupta did not appear to be kindly disposed of with the complainant and the Supervisory Authority called him on 17th July, 2004 and demanded an illegal gratification of Rs. 10,000/- from him, saying that if he (complainant) fails to give the amount, his supervision work will be assigned to said Sri Bimal Mukherjee within a day or two. The complainant, being not inclined to pay money, filed a complaint before the CBI, who after verification, drew up a First Information Report and prepared a pre-trap memo for laying a trap of the petitioner. The complainant, being not inclined to pay money, filed a complaint before the CBI, who after verification, drew up a First Information Report and prepared a pre-trap memo for laying a trap of the petitioner. It was mentioned in the pre-trap memo that the petitioner had demanded money from the complainant for associating him in execution of the contract, relating to construction of macadamized road at Laikdih, New Laikdih, Dahibari Open Cast Project and Basanti Mata Colliery. The CBI team, thereafter, proceed for Dhanbad from Ranchi under the leadership of A.K. Jha, Inspector of Police, CBI, AHD, Ranchi along with the complainant by Shatabdi Express. While they were proceeding, the complainant Sri Shashi Nath Jha was asked to contact the petitioner. After the petitioner, was contacted and the meeting place was fixed at Railway Enquiry Counter, Railway Station, Dhanbad, at the arrival time of Howrah Jabalpur Shaktipunj Express at evening. Requestion was also made to the Senior Divisional Manager, LIC of India, Divisional Officer, Hazaribagh, to depute two officers at Dhanbad Railway Station at the arrival time of Shatabdi Express. At the Railway Station, Dhanbad, those two witnesses were introduced to the complainant Sri Shashi Nath Jha and the purpose was disclosed to them. Thereafter, the petitioner was arrested at the Enquiry Counter, Railway Station, Dhanbad, while accepting money from the complainant Shashi Nath Jha. All the formalities were observed at the Station itself. 4. According to the petitioner, he is innocent and has been falsely implicated in this case, he having committed no offence. Counsel for the petitioner submitted that the letter, forwarding charge-sheet, was issued on 18th September, 2004 along with the original sanction order. List of witnesses, list of documents and list of material objects were received but without the case diary and, accordingly, the Sr. Public Prosecutor of CBI was directed to produce the case diary on the next date. It has been submitted that the original case diary along with other papers having not been forwarded to the Court, no cognizance was taken by the learned Court below. Though it was not permissible for the learned Magistrate to remand an accused in a case where cognizance has not been taken even after submission of charge-sheet, impugned order of remand has been passed illegally in the teeth of the provisions of Section 309(2) of the Code of Criminal Procedure. 5. Though it was not permissible for the learned Magistrate to remand an accused in a case where cognizance has not been taken even after submission of charge-sheet, impugned order of remand has been passed illegally in the teeth of the provisions of Section 309(2) of the Code of Criminal Procedure. 5. During course of hearing, learned counsel for the CBI submitted that the original case diary along with other papers were actually taken to the Court by the ASI, CBI, but one Udai Krishna Verma, Stenographer of learned Special Judge- cum-3rd Additional Sessions Judge, Dhanbad, returned the same to the ASI Gautam Singh for its production as and when called for by the Court. Counsel for the CBI alleged that the said Stenographer has been committing the same thing in other cases also, as is evident from Annexure-A to the supplementary counter affidavit. 6. Learned counsel for the petitioner denied the aforesaid suggestion and submitted that the Sr. P.P. of CBI did not produce the case diary, inspite of specific order of the learned Court below. 7. Having noticed the aforesaid submission and complaint, made by the counsel for the parties, this Court by its order dated 28th February, 2005 directed to make an enquiry and the learned District Judge, Dhanbad, was asked to submit report. Pursuant to the order dated 28th February, 2005, a report has been submitted by the learned District Judge, Dhanbad, along with letter dated 28th March, 2005, wherein, he has informed that two Courts of CBI at functioning at Dhanbad; one is presided over by Sri Vishnu Kant Sahay, Additional Sessions Judge-VIII, Dhanbad and the other is presided over by Sri Satya Narain Prasad, Additional Sessions Judge-Ill, Dhanbad. After recording the statements of the officers and taking into consideration the other evidence, copy of which has been enclosed with the report dated 28th March, 2005, it has been reported that the case diary of the case, in question, was not forwarded when the charge-sheet was submitted by the ASI, CBI. It is only on 7th January, 2005, the messenger of CBI had brought the photo copies/carbon copies of the case diaries of R.C. Case No. 4 (A) of 2004 (AHD-R), RC. It is only on 7th January, 2005, the messenger of CBI had brought the photo copies/carbon copies of the case diaries of R.C. Case No. 4 (A) of 2004 (AHD-R), RC. Case No. 2 (A) of 2004 (AHD-R) and R.C. Case No. 6 (A) of 2004 (AHD-R), which were not received by Sri Uday Krishna Verma, after making endorsement on paper of receipt, such as, "required original case diary on the date fixed". Annexure-A to the counter affidavit, filed by the CBI, shows that four case diaries were produced in the Court of the learned Special Judge, CBI, and out of four, Sri Udai Krishna Verma received only one i.e. case diary of RC. Case No. 8 (A) of 2004 (AHD-R), containing page Nos. 1 to 105. With regard to rest of the cases, as stated above, endorsement was made, such as; "required original case diary on the date fixed". It appears that although the charge-sheet in RC. Case No. 8 (A) of 2004 (AHD-R) was submitted in the Court of learned Special Judge, CBI, on 20th September, 2004, the case diary was actually received in the Court on 7th January, 2005. It further appears that after receipt of the case diary, the learned Court below has already taken cognizance of the offence on 18th January, 2005. 8. In the facts and circumstances, the case diary having been received, no further enquiry is required to be made in the present case. Further, the Court having taken cognizance of the offence on 18th January, 2005, I am not inclined to release the petitioner from jail custody on the ground of illegal detention, in violation of the provisions of Section 309(2) of the Code of Criminal Procedure. However, this order will not stand in the way of the petitioner, while asking for regular bail. 9. The writ petition is, accordingly, dismissed with the aforesaid observations. Hari Shankar Prasad, J. I agree.