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2012 DIGILAW 840 (PAT)

Nagendra Prasad Singh v. Union of India

2012-06-20

HEMANT KUMAR SRIVASTAVA

body2012
ORDER This petition under section 482 of the Cr.P.C has been filed for quashing the order dated 2.12.2011 passed by learned Special Judge, CBI III, Patna in Special case no. 2/2010 arising out of ACB/CBI/Patna FIR No. RC 0232010A/ 2005 by which and whereunder learned Special Judge, CBI III, Patna rejected the discharge petition dated 26.5.2011 filed under section 239 of the Cr. P. C and refused to discharge the petitioner from the above stated case. 2. The brief fact which lies to file this quashing petition is that one Sri Prakash Chandra gave a written petition to S.P, CBI, Patna alleging therein that he was contractor of Food Corporation of India, Muzaffarpur for transportation and Hatholan work since the year 2006 and had been doing the work under the Food Corporation of India, Muzaffarpur area but on 17.3.2010 petitioner- Nagendra Pd. Singh demanded bribe from him on telephone and again on 18.3.2010, he called him and told that if he would like to do work without disturbance and without any trouble and would like to get bills passed timely without any objection, he would have to make payment of Rs 5,000/- per month as bribe otherwise he would disturb the working and stop the billing. 3. On the aforesaid information, a trap team was constituted after verification of the aforesaid allegation. The trap team prepared preliminary memorandum on 20.3.2010 at LIC guest house, Muzaffarpur and proceeded for trap. Petitioner was caught red handed while demanding and accepting a bribe of Rs 5,000/- in presence of independent witnesses and bribe money of Rs 5,000/- was recovered from his possession. Petitioner was arrested on 20.3.2010 at 12 hours. Petitioner was thoroughly interrogated and subsequently, he was produced before learned Special Judge, CBI, North Bihar, Patna on 21.3.2010 and in the aforesaid connection, the above stated ACB/CBI/Patna FIR No. RC 0232010A/ 2005 under section 7 of the Prevention of Corruption Act was lodged against the petitioner on 19.3.2010. 4. After due investigation, charge sheet no. 27/2010 dated 18.9.2010 was submitted and learned Special Judge, CBI, North Bihar, Patna took cognizance for the offence on the basis of the above stated charge sheet as well as other relevant documents. 5. 4. After due investigation, charge sheet no. 27/2010 dated 18.9.2010 was submitted and learned Special Judge, CBI, North Bihar, Patna took cognizance for the offence on the basis of the above stated charge sheet as well as other relevant documents. 5. On 26.5.2011 a petition under section 239 of the Cr.P.C was filed on behalf of the petitioner praying therein to discharge him from the aforesaid case as no charge is being made out against the petitioner but learned Special Judge, CBI III, Patna, having heard the parties and having considered the material available on the record, rejected the aforesaid petition vide order dated 2.12.2011 against which this petition has been preferred. 6. Learned counsel for the petitioner challenged the impugned order on the ground that no bill of the allegation maker, namely, Prakash Chandra, was pending at the time of alleged trap and, as a matter of fact, petitioner was posted as Manager Contract at the relevant time and he had no concern with the passing of bills of the allegation maker and, therefore, it is incorrect to say that petitioner demanded bribe for passing of the pending bills of the allegation maker. It is further contended by him that the petitioner had already been transferred from Food Corporation, Muzaffarpur to Motihari vide order dated 16.3.2010 before making the complain for alleged demand of bribe. It is further contended by him that Area Manager of Food Corporation of India, Muzaffarpur is the sole responsible for passing bills and for ordering payment of bills of the contractors and, therefore, petitioner was not responsible for passing of the bills of the allegation maker. It is further contended by him that, as a matter of fact, the allegation maker himself was not working regularly and that was the reason his contract was cancelled and Rs 13,450/- was withheld and recovered by the Area Manager and petitioner had played an important role to get cancelled the tender as well as stoppage of payment of the allegation maker and that was the reason the allegation maker, in collusion with the officials of the CBI, hatched up a conspiracy and got implicated the petitioner in a false case. It is further contended by him that falsity of the present case is also proved by this fact that transfer order of the petitioner was received on 16.3.2010 and the process for relieving of the petitioner from his present post had already been started and after receipt of the transfer order, the allegation maker filed petition before the S.P, CBI on 18.3.2010 and after that trap team was constituted and the petitioner was said to be arrested on 20.3.2010 but he was produced before the court on 21.3.2010, particularly, in the circumstance, when the arrest memo and seizure list were prepared on 20.3.2010. It is further contended by him that the arrest memo and seizure list were not prepared at the spot rather the same were prepared at LIC guest house, Muzaffarpur as it is an admitted by the prosecution case itself. 7. It is further contended by him that the investigation of the case was entrusted to one Sri R.P. Pandey, Inspector of police who participated in the trap proceeding and, therefore, the entire investigation is bad in law. It is further contended by him that according to section 17 of the Prevention of Corruption Act, the officer below the rank of Dy.S.P has got no jurisdiction to investigate the matter. 8. It is further contended by him that an incompetent authority has granted sanction order in the present case and, therefore, cognizance taken by learned Special Judge, CBI III, Patna is bad in law. Therefore, on the aforesaid ground, the petitioner should be discharged from the above stated case. 9. It is further contended by him that time to time the State Government has issued several circulars to its officials to conduct a preliminary enquiry before institution of the criminal cases against its officials and moreover, in the present case, S.P, CBI has entertained the allegation petition against the petitioner without taking any affidavit from the allegation maker and, therefore, on the basis of the above stated ground, no prosecution can be initiated against the petitioner. In support of his contention, he drew my attention towards annexure 20 series to the supplementary affidavit. 10. Learned counsel for the petitioner relied upon decision reported in 2005(8) SCW 4845 (State of Goa Vs. Babu Thomas, 2006(I), Supreme court cases (criminal) 47 (State of Karnataka through CBI Vs. In support of his contention, he drew my attention towards annexure 20 series to the supplementary affidavit. 10. Learned counsel for the petitioner relied upon decision reported in 2005(8) SCW 4845 (State of Goa Vs. Babu Thomas, 2006(I), Supreme court cases (criminal) 47 (State of Karnataka through CBI Vs. C. Nagrajaswami) and 2008(56) 3 BLJR 2347 Patna, (Raza Imam Rizwi Vs State of Bihar). 11. On the other hand, learned counsel for the CBI supported the impugned order and submitted that admittedly sanction order has been granted by the Executive Director (East Zone), Food Corporation of India, Calcutta which is evident from perusal of annexure 17 to the petition and as per annexure 18 to the petition. Executive Director was a competent authority to grant sanction which is evident from category II of the aforesaid annexure 18 and, therefore, it cannot be said that sanction order has been granted by incompetent authority. It is further contended by him that now, it has already been set at rest that no finding or order passed by a Special Judge can be reversed or altered by a court on the ground of absence of or any error, omission or irregularity in sanction order unless in the opinion of the court, failure of justice has, in fact, occasioned thereby. It is further contended by him that the Apex court of this country has already settled that factum of failure of justice would be considered at the time of trial and, therefore, at this stage, the impugned order cannot be quashed. In support of his contention, he referred a decision of Dinesh Kumar Vs. Air Port Authority reported in 2011 (AIR) SCW 6834 in which it has been held by the Apex court of this country that where sanction order exists but its legality and validity put in question so, such issue has to be raised in course of the trial. It is further contended by him that so far as incompetency of the Investigating officer is concerned, admittedly, as per section 17 of the Prevention of Corruption Act, the Inspector of Police has got jurisdiction to investigate the matter and now, it is well settled principle of law that a member of trap party can also investigate the case and, therefore, there is no illegality in the investigation of the case. 12. 12. It is further contended by him that admittedly, petitioner was caught red handed taking bribe money and the alleged bribe money was recovered from his conscious possession and he could not give any satisfactory explanation in respect of the aforesaid money. 13. It is further contended by him that so far as other grounds raised on behalf of the petitioner are concerned, it is not proper to quash the entire prosecution on the basis of the aforesaid grounds because it is not proper stage to touch the merit of the prosecution case and at the time of framing of the charge, the court has to see only as to whether prima facie material is available on the record to frame charge or not. Further it is contended by him that it is settled principle of law that charges are framed on the basis of the materials collected by the Investigating agency in course of trial and the documents of the defence cannot be perused at the time of framing of the charge. Although in support of the aforesaid contention, several decisions were citied on behalf of the C.B.I but it is needless to refer all the decisions in this order. 14. Having heard the contentions of both the parties, I have gone through the record. 15. First, I would like to take up this issue as to whether a valid sanction was granted in this case or not. Admittedly, petitioner was working as Manager Contract and sanction order has been issued by the Executive Director (East Zone), Calcutta. Annexure 18 to the petition reveals that the Executive Director (East Zone), Calcutta was competent to grant sanction for prosecution of the petitioner. Moreover, it has already been set at rest that mere irregularity and illegality in sanction order cannot be a ground for quashing the finding or order of the Special Judge, particularly, in the circumstances, when the cognizance had already been taken in the matter and, therefore, in my view, petitioner cannot be discharged from the proceeding on the above stated ground though he may challenge the validity of the sanction order in course of the trial. 16. 16. So far as incompetency of the Investigating officer is concerned, Investigating officer was the Inspector of police, CBI at the relevant time and he had got jurisdiction to investigate the matter and mere on this ground that he was a member of the trap party, it cannot be said that he had got no jurisdiction to investigate the matter. 17. It has been contended on behalf of the petitioner that no bill was pending at the time of trap and the petitioner had already been transferred from Muzaffarpur to Motihari but in my view, all the aforesaid points are related with factual aspect which can be determined and decided in course of the trial only and it can not be decided at the time of framing of the charge. 18. So far as the issuance of government circulars is concerned, the referred circulars are only directive in nature and their violation does not give any right to petitioner to challenge his prosecution on the ground of violation of the above stated circulars. 19. On the basis of the aforesaid discussion, I am of the view that this petition does not have any merit and must be dismissed on admission stage itself and accordingly, this petition is dismissed on admission stage itself.