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2011 DIGILAW 167 (MP)

RAM SINGH AHIRWAR v. STATE OF M. P.

2011-02-04

R.C.MISHRA, VIMLA JAIN

body2011
JUDGMENT : 1. This order shall govern disposal of the aforesaid cases as they are interrelated. For the sake of convenience, the petitioners shall be referred to by their respective names only. 2. MCrCs are the petitions, under section 482 of the Code of Criminal Procedure, for quashing of the entire proceedings pending before the Special Judge (under the Prevention of Corruption Act, 1988), Khandwa as Special Criminal Case No. 4/2006 whereas the criminal revisions have been preferred against the order dated 10-3-2008, framing charges of various offences against the petitioners as can be tabulated hereinunder - Name of the petitioner Charge with the offences under section S. C. Saxena (1). 13(1)(d)(ii) read with 13(2) of the Act (for criminal misconduct of causing wrongful gain to the contractor and wrongful loss to the government by sanctioning payment against stacking of hard rocks, a work that was not carried out) Or 120-B of the Indian Penal Code read with 13(1)(d)(ii) read with 13(2) of the Act (for being a party to a criminal conspiracy to commit the aforesaid offence) (2). 13(1)(d)(ii) read with 13(2) of the Act (for criminal misconduct of causing wrongful gain to the contractor by sanctioning payment of Rs. 6,45,108/- against stacking of hard rocks, a work that was not carried out). N. Dashratha Smt. N. Hemawathi Gorla Sundaraiah M. Jagannatham 120-B of the Indian Penal Code read with 13(1)(d)(ii) read with 13(2) of the Act (on the aforesaid two counts), 120 read with 467 and 120 read with 468 of the Indian Penal Code. Ram Singh 120-B of the Indian Penal Code read with 13(1)(d)(ii) read with 13(2) of the Act (on the aforesaid two counts), 120 read with 467 and 120 read with 468 of the Indian Penal Code. (for non deduction of a total amount of Rs. 1,19,784/- towards non stacking of the hard rocks). 467 of the Indian Penal Code (for deleting the word not� in the measurement book so as to prevent deduction of amount against non-stacking of the hard rocks from the running bills) 468 of the Indian Penal Code (for making a false entry in the measurement book) 471 of the Indian Penal Code (for using the false entry in the measurement book as genuine). Vardhman Kumar Talesara 120-B of the Indian Penal Code read with 13(1)(d)(ii) read with 13(2) of the Act (for being a party to a criminal conspiracy to commit criminal misconduct of causing wrongful gain to the contractor and wrongful loss to the government to the extent of Rs. 1,19,784/- by sanctioning payment against stacking of hard rocks, a work that was not carried out) 120-B of the Indian Penal Code read with 13(1)(d)(ii) read with 13(2) of the Act (for being a party to a criminal conspiracy to commit criminal misconduct of causing wrongful gain to the contractor and wrongful loss to the government to the extent of Rs. 30,35,972/- by making a wrong classification of strata) 467 of the Indian Penal Code (for making a false entry in the third running bill so as to prevent deduction of amount against non stacking of the hard rocks from the running bills) 468 of the Indian Penal Code (for making a false entry in the third running bill) 471 of the Indian Penal Code (for using the false entry in the third running bill as genuine) 3. In that case, the cognizance of the offences was taken upon the charge-sheet submitted by S.P.E. (Lokayukt) before the Special Court after due investigation into Crime No. 100/1996 registered at its Indore office. Allegations contained therein may be summarized thus - (i) Contract for earthwork of Indira Sagar Main Canal, RD 13.1 Km to RD 19.00 kms, Group No. ME-5 was awarded to M/s S. V. Engineering Constructions, Nellore, a registered partnership firm, having its office at Dargamitta Nellore (hereinafter referred to as 'the firm'). (ii) During the relevant point of time, S. C. Saxena, V. K. Talesara and Ram Singh Ahirwar were posted as Executive Engineer, Assistant Engineer and Sub-Engineer in Narmada Division No. 28, Indira Sagar Project whereas amongst the other petitioners N. Dashratha Rami Reddy, Nellore Hemawathi and Gorla Sundaraiah were the partners of the firm and M. Jagannatham was the holder of Power of Attorney to act for and on its behalf. (iii) Since the contractor had failed to stack the excavated hard rocks at a distance of 10 kms from the canal, an amount of Rs. (iii) Since the contractor had failed to stack the excavated hard rocks at a distance of 10 kms from the canal, an amount of Rs. 7.80 per cubic meter was to be deducted from the respective running bills as per Unified Schedule of Rates, but in pursuance of a conspiracy hatched between the officers of Indira Sagar Project (Canals) including S. C. Saxena, V. K. Talesara and Ram Singh Ahirwar and representatives of the contractor including the other petitioners, a total amount of Rs. 32,02,608/- was not deducted and was thus, wrongly sanctioned for payment. (iv) With a view to causing wrongful gain to the contractor, S. C. Saxena as Executive Engineer-in-charge classified the soft rocks as hard rocks, excavation of which carried comparatively higher rates. (v) The representatives of the contractor were instrumental in getting incorrect entries recorded by V. K. Talesara, Asstt. Engineer and Ram Kumar Ahirwar, Sub-Engineer in the third running bill and the measurement book respectively so as to prevent deduction of amount for non-stacking of rocks. 4. For grant of sanctions, under sections 19(1) of the Act and 197 of the Code of Criminal Procedure, to prosecute the following public servants - (i) Akhilesh Kumar Agrawal, the then Chief Engineer, Indira Sagar Project. (ii) Suresh Chandra Sharma, the then Executive Engineer, Narmada Division No. 28, Indira Sagar Project at Punasa. (iii) S. C. Saxena, Executive Engineer, Division No. 28 V. K. Talesara, SDO, Water Resource Department, Khandwa and Ram Singh Ahirwar, Sub Engineer, Sub Division No. 27 - report of the investigating agency along with material and evidence collected by it, was forwarded to the Principal Secretary, Department of Law and Legal Affairs, Bhopal. However, while observing that - (a) No sanction, under section 19(1) of the Act, for prosecution of Akhilesh Kumar Agrawal who, in the meantime, had retired from service, was required. (b) He was not required to consider the matter of according sanction in respect of Suresh Chandra Sharma and S. C. Saxena whose services were allocated to the newly created State of Chhattisgarh, the Secretary, vide order-dated 29-4-2006, refused to accord sanction for prosecution of anyone of the public servants named above. 5. A bare perusal of the order-dated 29-4-2006 would reveal that sanction for prosecution was declined for the following reasons - (i) No wrongful loss was caused to the State Government. 5. A bare perusal of the order-dated 29-4-2006 would reveal that sanction for prosecution was declined for the following reasons - (i) No wrongful loss was caused to the State Government. (ii) After classification of strata by the Executive Engineer-in-charge, site was inspected by Chief Technical Examiner and Senior Geologist, Government of India, who were not able to pin-point any error in the classification. However, in the wake of certain complaints, the then Superintending Engineer namely K. K. Saraf inspected the site in presence of Executive Engineer and reclassified the strata and payment towards excavation work was made accordingly. (iii) Even though, no separate rate for recovery against non-stacking of the excavated rocks was provided in the agreement yet, the work of stacking was insisted upon in Schedule 'G'. Still, non-stacking charges were duly deducted from the subsequent bills. (iv) In absence of mens rea, none of the acts and omissions attributed to the public servants amounted to an offence and at the most, they could be termed as errors or irregularities. (v) The administrative department viz. Water Resources Department had expressed disagreement with the proposal for prosecution of the officers. (vi) Aggrieved by the alteration of classification of strata in the canal excavation, withholding of the amounts against the work of canal excavation and deductions due to non-stacking of the hard rocks, the contractor had referred the dispute to the M.P. Arbitration Tribunal. In its Award dated 5-10-2005 passed in Reference Case No. 107/1999, the Tribunal, while observing that error committed by the Executive Engineer in classification of strata could be rectified by the Superintending Engineer, proceeded to hold that classification of strata ascertained by the S.E. in presence of Executive Engineer was not unlawful. 6. In the light of these background facts, learned Senior Counsel has submitted that no offence was made out against representatives of the contractor whereas Shri A. T. Faridee, representing Ram Singh Ahirwar and V. K. Talesara has contended that in view of this Division Bench's decision in Bramha Swaroop Saini vs. State of M. P. (Criminal Revision No. 600/2010 decided on 19-11-2010), no cognizance of the offences whether under the Act or under the Indian Penal Code could be taken in the wake of refusal of the sanction by the competent authority. Shri Manish Mishra, appearing on behalf of petitioner S. C. Saxena has contended that had he continued to serve in the State of Madhya Pradesh, the requisite sanction for his prosecution in respect of the offences would have been refused and as such, even cognizance of any one of the offences could not be taken. 7. In response, learned Special Public Prosecutor, while making reference to decision of the Apex Court in Parkash Singh Badal vs. State of Punjab, AIR 2007 SC 1274 has submitted that for prosecution of V. K. Talesara and Ram Singh in respect of the offences under sections 467, 468, 471 and 120B, Indian Penal Code, no sanction, either under section 19(1) of the Act or under section 197 of the Code of Criminal Procedure, was required and sanction under section 19(1) was also not a pre-condition for taking cognizance of the offence under the Act as they were not holding the post during the holding of which, the alleged offence was committed. According to him, even a strong suspicion leading to presumption as to possibility as against certainty makes out a case for framing of charge. However, it is well settled that charges should not be framed when materials placed before the Court disclose some suspicion and not grave suspicion against the accused (See. Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135 ) but while exercising revisional power, this Court has no authority to appreciate the evidence in the manner as the trial and the appellate Courts are required to do and the order framing charge may be interfered with only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged (Munna Devi vs. State of Rajasthan, AIR 2002 SC 107 referred to). 8. 8. Adverting to the facts of the instant case, it may be observed that - (a) As V. K. Talesara and Ram Singh Ahirwar continued to serve under the authority competent to remove each one of them from the respective offices alleged to have been abused, sanction for their prosecution regarding the offence under the Act was required for the reasons given by us in Bramha Swaroop Saini's case (supra). (b) there is nothing on record to suggest that the petitioner S. C. Saxena, by abusing his position as Executive Engineer, had obtained for himself any valuable thing or pecuniary advantage. (c) the excess amount paid to the contractor on the basis of so-called incorrect classification done by the petitioner S. C. Saxena was adjusted in the subsequent running bills and, as further reflected in paragraph 5.3 of the Award, the amount against work done by the contractor was paid on the basis of the revised classification of strata only. (d) The contractor was also not able to make any wrongful gain on the basis of so-called wrong entries made in the measurement books or third running bill. 9. There is yet another aspect of the matter. Condition of contract that provides for payment against running bills on intermediate certificate issued by the Engineer-in-Charge also postulates that all such intermediate bills shall be regarded as payments by way of advance against the final payment of works actual done and completed. 10. Thus, even if the evidence sought to be adduced by the prosecution to establish the guilt of the petitioners is fully accepted before it is challenged by cross-examination or rebutted by defence evidence (if any), it would not be sufficient to prove that anyone of them had committed any offences with which he is charged. However, learned trial Judge, ignoring the guidelines laid down by the Supreme Court in Century Spinning and Manufacturing Co. Ltd. vs. State of Maharashtra, AIR 1972 SC 545 that the Court should not automatically frame the charge merely because the prosecution while relying upon the documents referred to in the report under section 173 of the Code considered it proper to institute the case, had preferred to proceed with the trial. Ltd. vs. State of Maharashtra, AIR 1972 SC 545 that the Court should not automatically frame the charge merely because the prosecution while relying upon the documents referred to in the report under section 173 of the Code considered it proper to institute the case, had preferred to proceed with the trial. He completely ignored the fact that the competent authority had refused to accord sanction for the prosecution of Ram Singh Ahirwar and Vardhman Kumar Talesara regarding the offence punishable under the Act as well as those under the Penal Code and the well settled position of law, as explained by the Apex Court in State of M. P. vs. Sheetla Sahai, 2009 AIR SCW 5514, that the question whether materials brought on record by the prosecution disclose commission of offence or not must be determined having regard to entirety of the materials and not on part of it. The order framing charges, therefore, deserves interference under the revisional jurisdiction. 11. In the result, the revisions stand allowed and the impugned order dated 10/03/2008 (supra), so far as it relates to the petitioners, is hereby set aside. Instead, the petitioners are discharged of the offences. 12. Although, for all practical purposes, the MCrCs have been rendered infructuous yet, for academic purpose, they are partly allowed and the proceedings relating to prosecution of Ram Singh Ahirwar and Vardhman Kumar Talesara in respect of the offence under the Act are hereby quashed as nullity for want of sanction. 13. A copy of this order be retained in the connected cases.