Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1007 (PAT)

Ramanand Prasad Singh v. State Of Bihar

2007-05-25

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner seeks quashing of the order dated 3.2.2007 passed by the Special Judge (Vigilance), North Bihar, Muzaffarpur in Special Case No. 72 of 2002 arising out of Vigilance P.S. Case No. 18 of 1990 by which the application of the petitioner for discharge u/s. 227 of the Code of Criminal Procedure has been rejected. 3. The prosecution of the petitioner and others relates to supply of Rubber Hose Pipes to the Bihar State Electricity Board in which the role of the petitioner is stated to be that he had given the report regarding quality of the Hose Pipe to the Purchase Committee on the basis of which the Supplier had been given orders for supply of Hose Pipe on more than twice the lowest tender for the same. The other charge against the petitioner is that he has placed order for 15 Hose Pipe to M/s S.C. Enterprises, Muzaffarpur for which he had no authority under the law. 4. Earlier the petitioners application u/s. 227 of the Code of Criminal Procedure for discharge had been rejected by order dated 14.2.2006 of the Special Judge, Vigilance but by order dated 14.9.2006 of this Court passed in Cr. Misc. No. 31496/2006, the said order was quashed by this Court and the matter was remanded to the Special Judge, Vigilance for reconsideration giving opportunity to the parties and taking into account the decisions of the Supreme Court and this Court in the case of P.S. Rajya V/s. State of Bihar, 1996 9 SCC 1 and case of Harihar Singh V/s. State of Bihar, 1998 0 BBCJ 145 . On a reconsideration of the matter, a fresh order dated 3.2.2007 has been passed by the court below again rejecting the petition u/s. 227 of the Code of Criminal Procedure. 5. Learned Counsel for the petitioner submits that the petitioner was not a part of the Purchase Committee nor he was in any way connected with stores and thus, he could not have been made an accused in the case. It is further submitted that sanction has been given only against the petitioner and refused against all other officials of the Board and for the said reasons also the case cannot proceed against him. It is further submitted that sanction has been given only against the petitioner and refused against all other officials of the Board and for the said reasons also the case cannot proceed against him. Thirdly, it is submitted by the learned counsel that earlier departmental proceeding was held against the petitioner on the same charges and an order of dismissal dated 11.9.1993 was passed but by order dated 12.4.1994 of this Court passed in CWJC No. 9962 of 1993, the said order dated 11.9.93 was quashed and the matter remanded to the Enquiry Officer with a direction to send requisition for examination of further witnesses and only thereafter the final order was to be passed on the basis of the enquiry report. The petitioner filed LPA No. 53 of 1994, against the same in which by order dated 28.9.1994, the petitioner was directed to file his show cause before the Board since in the meantime the further enquiry had already been completed and second show cause notice has been issued, and the Board was required to pass an order upon the same. The services of the petitioner were again terminated by order dated 17.10.1994, but thereafter, the then Chairman of the Board had been directed to appear before the Court and on the basis of an application submitted by the petitioner to the Board and the observations of this Court, the order of termination dated 17.10.1994 was withdrawn by Resolution dated 10.1.1995 and the application of the petitioner seeking voluntary retirement was accepted with effect from the date of the order. The order was partly modified by another Resolution dated 23.2.1995 which did not affect in substance, the earlier resolution. 6. Learned counsel for the petitioner submits that the said resolution of the Board amounts to his exoneration in the departmental proceeding and thus on the same facts and for the same charges, he should not be tried in the criminal case. 7. Learned counsel also relies upon a noting made by the Superintendent of Police, Vigilance to the DIG in which he has taken a favourable view with respect to the petitioner and he referred to the fact that at one of the places the signature has been made by one R.P. Singh and not the petitioner, R.N.P. Singh, and for all these the petitioner should not be held responsible for commission of any offence. 8. 8. The petitioner also relies upon Rule 3 (3) of the Bihar Government Servants Conduct Rules, 1976 which provides that no Government servant in the performance of his official duties or in the exercise of powers conferred on him, shall act otherwise than in his best judgement except when he is acting under the direction of his official superior and shall, where he is acting under such direction, obtain the direction in writing whenever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as pessible. On the basis of the same it is submitted by the learned counsel that whatever the petitioner had done he had done in exercise of his best judgment and confirmation of the superior officials had also been obtained either before or after the act was performed. 9. Learned counsel also submits that the court below has passed the order without applying its mind and without discussing the facts as required by the earlier order of remand and again rejected the petition u/s. 227 of the Code of Criminal Procedure. It is submitted that it was required of the Court below to have gone in details with respect to all the matters not only in terms of the earlier order of remand but also in view of the law laid down by the Supreme Court in the case of Pepsi Foods Ltd. and Another V/s. Special Judicial Magistrate and Others, 1998 5 SCC 749 , in para-28 of which it has been held as follows: "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 10. It is further submitted by the learned counsel that Sec. 120B of the Indian Penal Code is not applicable in the present matter and the offence alleged against the petitioner cannot be considered to be a criminal conspiracy in view of the definition of the same recorded in Sec. 120(A) of the Indian Penal Code, according to which, a criminal conspiracy can be said to have been committed when two or more persons agree to do or cause to be done an illegal act or an act which is not illegal, by illegal means. It is submitted that no such agreement is to be found in the present matter. 11. Learned counsel for the Vigilance, on the other hand, refering to the facts of the two judgments in the cases of P.S. Rajya V/s. State of Bihar (supra) of the Supreme Court and Harihar Singh (supra) of this Court, submits that in those cases, the accused persons had been exonerated in the departmental proceedings on the basis of the specific findings of fact recorded by the Enquiry Officer and the Disciplinary Authority whereas in the present matter both the Enquiry Officer and the Disciplinary Authority have found the petitioner guilty of the charges but only taking into consideration the fact that the petitioner had applied to accept voluntary retirement and due to the observations of this Court in the LPA proceedings, a humanitarian view was taken and the order of dismissal was withdrawn but so far as the findings are concerned they themselves had not been overturned and thus no benefit can be derived by the petitioner, so far as the Supreme Courts decision and this Courts decision are concerned. 12. 12. Learned counsel further refers to the charge memo in the departmental proceedings in which the role of the petitioner has been clearly delineated and it is submitted that findings have been made against the petitioner in the departmental enquiry and the said findings have not been set aside and further during the course of investigation the Vigilance Authorities have also come to the similar conclusions and thus there is substantive material against the petitioner to proceed against him in the criminal case. 13. Learned counsel for the Vigilance also refers to various paragraphs of the case diary, namely, paragraph nos. 69, 75, 76, 77, 92, 93, 96, 107, 214 (2) and 287 in which specific role of the petitioner has been dealt with. On the basis of the aforesaid materials it is submitted by the learned counsel that the court below has rightly rejected the petition u/s. 227 of the Code of Criminal Procedure for discharge filed by the petitioner. 14. Learned counsel for the Bihar State Electricity Board supports, in general, the stand of the learned counsel for the Vigilance but specifically points to the law on the question of discharge and submits that at this stage the evidence cannot be looked into in detail as has been sought to be raised on behalf of the petitioner. 15. On a consideration of the rival submissions and after perusing the impugned order this Court is of the view that the court below cannot be held to have not applied its mind to the facts of the case. From the detailed order dated 3.2.2007, it is evident that the entire matter has been considered by the court below and the case laws relied upon by the petitioner have also been discussed and thereafter the court below has come to the conclusion that the petition u/s. 227 of the Code of Criminal Procedure is fit to be rejected. 16. From the detailed order dated 3.2.2007, it is evident that the entire matter has been considered by the court below and the case laws relied upon by the petitioner have also been discussed and thereafter the court below has come to the conclusion that the petition u/s. 227 of the Code of Criminal Procedure is fit to be rejected. 16. This Court is also of the view that no benefit can be derived by the petitioner from the decision of the Apex Court in P.S. Rajyas case (supra) and from the decision in Harihar Singhs case (supra) of this Court since in P.S. Rajyas Case in the departmental proceedings clear findings had been recorded regarding the valuation of the assets of the appellant of that case and thereafter a higher valuation had been made by the same persons in the criminal proceedings for which no reasonable ground had been mentioned. It was in the context of those circumstances that the Court came to the conclusion that there was no occasion to take a contrary view since it was the view of the Central Vigilance Commission also. In the present matter there are no such findings of the departmental authorities in favour of the petitioner on the record. The mere acceptance of letter of the petitioner seeking voluntary retirement by the Board cannot amount to full exoneration in the departmental proceedings and the same appears to be more in the nature of a compromise entered into by the parties. So far as the reliance of the petitioner in the case of Pepsi Foods Ltd. (supra) is concerned, the observations made in the said case were made in the context of a complaint case where the complainant and two of his witnesses alone had been examined in support of the allegations and the Magistrate concerned had ordered summoning the accused on the basis of the same without applying his mind to the facts of the case and the law applicable to it. It was in those circumstances that the Apex Court has held that the Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. The present matter does not arise out of a complaint case rather it was lodged after a detailed investigation made by the Vigilance Authorities. Thus, the observation of the Apex Court may not ipso facto apply to the facts of the present case. Moreover, I find that the court below has gone into the matter in detail and dealt comprehensively with the facts on the record and then came to the conclusion that the case was not fit one for discharging the accused. 17. From a consideration of the impugned order, it does not appear that there is any infirmity in the same. The application is accordingly dismissed.