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Patna High Court · body

2007 DIGILAW 655 (PAT)

Sital Prasad Mathur v. State Of Bihar

2007-04-02

RAMESH KUMAR DATTA

body2007
Judgment 1. All these three matters raise common issue having the same substratum. Cr. Misc. Nos. 14432 and 15066 of 2007, in fact, arising out of the same order dated 24.2.2007 passed in Special Case No. 22 of 1997/R.C. No. 42A of 1997 pending before the Special Judge, CBI, North Bihar, Patna whereas Cr. Misc. No. 12333/2007 arises out of Special Case No. 13 of 1997 for quashing the order dated 13.2.2007 passed by the Special Judge, CBI, North Bihar, Patna. For the said reasons the matters have been heard together and are being disposed of by this common order. 2. Earlier Cr. Misc. Nos. 12333 and 14432 of 2007 had been adjourned on 23.3.2007 and 28.3.2007 for six weeks and five weeks respectively but the matter was mentioned for urgent hearing in view of the fact that the court below has refused to grant any further adjournment and has fixed the date for framing of charges on 3.4.2007. Hence the matters have been listed today to be considered and disposed of at the stage of admission itself after hearing the parties. 3. The petitioners in these three cases pray for quashing the order dated 13.2.2007 passed in Special Case No. 13/ 1997 and the order dated 24.2.2007 passed in Special Case No. 22/1997 by which the court below has rejected their application for discharge under Sections 120B, 407, 420; 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 4. The representative facts are taken from Cr. Misc. No. 14432 of 2007. The said case arises out of Naugachhia PS. Case No. 134/96 lodged at the instance of then Executive Engineer, Ganga Bridge Project, Nafugachhia on 26.7.1996 in which the allegation was that for the construction of Ganga Bridge the Road Construction Department, Bihar had allotted 500 MT of bitumen which was handed over to M/s Oriental Transport for transporting it to the consignee. Ultimately it appears that 469.80 MT of bitumen was lifted by the said Transport Company from the Hindustan Petroleum Corporation Limited and had been shown as delivered but as a matter of fact, the same were not delivered. Ultimately it appears that 469.80 MT of bitumen was lifted by the said Transport Company from the Hindustan Petroleum Corporation Limited and had been shown as delivered but as a matter of fact, the same were not delivered. Ultimately on the order of this Court dated 20.2.1997 to take up all the matters relating to Bitumen Scam, the CBI took up the matter for investigation and adopted the same FIR lodged as Naugachhia P.S. Case No. 134/96 which was subsequently registered as R.C. No. 42(A)/97 and Special Case No. 22 of 1997. 5. The case of the petitioners who are the officers of the Hindustan Petroleum Corporation Limited-the petitioner G. Ramnath, at the relevant time was posted as General Manager, Eastern Zone, whereas the petitioner Sital Prasad Mathur, at the relevant time was Deputy General Manager (Operation)- is that they were not named in the FIR nor was there any direct or indirect allegation against them or M/s Hindustan Petroleum Corporation Limited for any conspiracy with any of the accused persons. However, after investigation the CBI submitted charge sheet dated 28.7.2000 in which it was pointed out that three aspects of criminal conspiracy have emerged during investigations conducted so far: (i) M/s Oriental Transport lifted 469.80 MT of bitumen from Hindustan Petroleum Corpn. Ltd. (HPCL), Halclia for supplying to Ganga Bridge Project Division, Naugachhia but did not supply this material to the consignee. (ii) The supply order issued by the Road Construction Deptt., Govt, of Bihar (RCD) for the above supply of bitumen was one of several such supply orders which all were issued under extraneous considerations, with an intent to defraud the exchequer. (iii) The HPCL facilitated the conspiracy by extending undue relaxation to the transporters which caused huge and frequent lifting of bitumen by them and enabled them to misappropriate the same. Of course, such undue relaxation was extended by the HPCL as also by other oil cos. under immense pressure of transporters and the RCD officials. 6. (iii) The HPCL facilitated the conspiracy by extending undue relaxation to the transporters which caused huge and frequent lifting of bitumen by them and enabled them to misappropriate the same. Of course, such undue relaxation was extended by the HPCL as also by other oil cos. under immense pressure of transporters and the RCD officials. 6. From the aforesaid it is evident that so far as these petitioners were concerned, they are covered by the third aspect of the conspiracy by which it is alleged that they facilitated conspiracy by extending undue relaxation to the Transporters which caused huge and frequent lifting of bitumen by them and enabled them to misappropriate the same although it is admitted that such undue relaxation was extended under immense pressure of transporters and RCD officials. 7. The thrust of the allegation in the chargesheet is that when the officials of the HPCL found that due to their insistence upon verification of the tankers loaded with bitumen at Barauni, then during January-February, 1995 the tran sporters had decided not to lift bitumen from the HPCL and instead were placing their tankers with Bharat Petroleum Corporation (BPC) and Indian Oil Corporation (IOC) only who had relaxed this provision) and thus jeopardised the business interest of the HPCL. In this regard, on the basis of the report received from the Supply Depot at Haldia and from the Regional Office at Patna, the petitioner G. Ramnath, who was General Manager, instructed Shri H. Sengupta on 7.2.1995 to get the views of the Headquarters on this unorthodox practice adopted by the BPCL and IOC either to stop this or agree to it. But immediately in a meeting held on the next day, i.e., on 8.2.1995 by various officials of the HPCL, it was decided without getting the views of the Hqrs. to fall in line and match the prevalent industry practice to protect their market share and not to unnecessarily insist on appearance of tankers at Barauni, despite the fact that documentation was to be done for movement via Barauni and carriage charges had to be paid for movement via Barauni. It is thus, the view of the investigating agency that the said officers agreed for preparation of records for false movements and further provided that tankers be allowed to take load once in three days and by this they nullified the condition of prior acknowledgment for further load. It is thus, the view of the investigating agency that the said officers agreed for preparation of records for false movements and further provided that tankers be allowed to take load once in three days and by this they nullified the condition of prior acknowledgment for further load. For the said reasons it has been found that these petitioners alongwith others were involved in criminal conspiracy to defraud the exchequer by way of bitumen purchases to the tune of 469.80 MT found to have not been supplied to the authorities concerned. 8. Learned counsel for the petitioners submits that these petitioners cannot be held responsible as having committed any criminal conspiracy in the present matter since even the investigating agency admits that they have acted on immense pressure by the Transporters and the Road Construction Department, Government of Bihar officials. It is further submitted that whatever has been done was in the nature of administrative decision for which no mens rea can be attributed to them. so far as the conspiracy is concerned. since the said decision was taken at the official level of the petitioners Departments concerned in order to protect the business and commercial interest of the HPCL, as otherwise no bitumen could have been lifted from the HPCL as had actually happened in the month of January, 1995. So far as the petitioner G. Ramnath is concerned, his assertion is that on 7.2.1995 he had directed his subordinate officers to inform the Headquarters and get their views in this regard. With respect to the said petitioner it is further submitted that he being the General Manager (Operation) was responsible for overseeing the work of four regional offices as well as other 20 senior officers and thus having given instructions it could not be expected by him to follow through each and every steps in the matter. Learned counsel further submits that so far as the Headquarters is concerned, it has come from the materials on record that prior to the filing of the FIR the matter was telephonically discussed with DIG-cum-IG and Executive Director (Sales) at the Headquarters who had verbally advised to fall in line with the industry practice in order to regain the loss of business of HPCL. In support of the aforesaid proposition learned counsel has taken me to various materials on the records i.e. statements recorded either before the CBI, the statements of the witnesses and various correspondences at the relevant or at the later stage when the matter was internally enquired into by the HPCL Hqrs. in October-November, 1996. 9. Learned counsel for the CBI, on the other hand, has supported the impugned order on the ground that after investigation, sufficient materials had been found against the petitioners and it has clearly been stated in the charge sheet that these petitioners have knowingly, contrary to the prescribed procedure, decided not to insist upon appearance of tankers at Barauni, despite the fact that documentation was to be done for movement via Barauni and carriage charges had to be paid for movement via Barauni, and thus, it has rightly been said that these officers agreed to preparation of records for false movements. Learned counsel further submits that allowing the tankers to take load once in three days, these petitioners have nullified the condition of prior acknowledgment for further load which would have prevented the bitumen being sold away in the open market. Learned counsel for the CBI also submits that at the stage of consideration for discharge or framing of charge all that the court is required to see is whether there are prima facie materials on the record for proceeding against the accused persons. It is submitted by him that even if from the materials on the record there is suspicion that the accused may have committed the crime, then the trial court would be justified to proceed in the matter by framing the charges against the accused persons. In the present matter, according to him, there are sufficient materials to show that without any documentary record of approval of the Headquarters, these petitioners had, contrary to their own decision taken on the previous date i.e. 7.2.1995, on the very next day decided to go ahead and follow the illegal procedure by permitting the bitumen to be lifted without any verification at any stage as was required by the regular procedure and thus prima facie there is material to proceed against them in the case. 10. 10. On a consideration of the contentions of learned counsels for the parties and from a perusal of the materials placed before this Court, I am of the opinion that the court below has not committed any illegality in rejecting the petition filed by the petitioners for discharging them. From the materials on the record it cannot be said that there is no prima facie case against the petitioners for framing charges against them. 11. In the aforesaid circumstances, I do not find any merit in these applications. They are accordingly dismissed.