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Jharkhand High Court · body

2013 DIGILAW 1037 (JHR)

Sanjoy Sinha v. State of Jharkhand

2013-09-09

R.R.PRASAD

body2013
Order The prayer, which had initially been made in this application, is to issue a writ of mandamus restraining the authority from prosecuting the petitioner criminally till the inquiry report is under consideration with the Public Accounts Committee of the Jharkhand Legislative Assembly. Subsequently, F.I.R. lodged against the petitioner and other was also sought to be quashed. 2. It was submitted by Mr. Rajeev Sinha, learned senior counsel appearing for the petitioner that Comptroller and Auditor General (CAG) raised certain objections with regard to the functioning of the Jharkhand Renewable Energy Development (JREDA) in his report dated 31.3.2009. The matter came up before the Public Accounts Committee, who took up the matter relating to the objections raised by CAG and also in the audit report of the Finance Department. While the matter was under consideration before the Public Accounts Committee, the Government communicated to the Public Accounts Committee (PAC) that the objection raised by the CAG as well as by the Finance Department requires to be inquired into by the Vigilance, report of which would be submitted before the Public Accounts Committee. Accordingly, the Vigilance Commissioner wrote to the D.G.P., Vigilance to conduct an inquiry into the illegality, financial irregularity committed by JREDA and to submit report to the Government. In that eventuality, Public Accounts Committee stopped its hands in proceeding with the matter when it was assured by the Vigilance Department that the inquiry relating to the objections raised by the CAG would be completed within three months. For years together, the Vigilance did not do anything in the matter. Meanwhile, a PIL was filed, wherein this Court passed an order on 10.2.2012 by virtue of which the Vigilance accelerated its speed in the matter relating to the inquiry as aforesaid. Thereupon, the petitioner did write to the S.P., Cabinet Vigilance Department to give him an opportunity to explain certain things related to his functioning as Director, JREDA, from November, 2005 to 10th April, 2006 and from December, 2008 to September, 2009. But, to utter surprise of the petitioner, the Vigilance did submit inquiry report, which was made part' of the counter affidavit, filed in the said PIL, whereby the petitioner came to know that Vigilance is contemplating to lodged a F.I.R. against the petitioner. But, to utter surprise of the petitioner, the Vigilance did submit inquiry report, which was made part' of the counter affidavit, filed in the said PIL, whereby the petitioner came to know that Vigilance is contemplating to lodged a F.I.R. against the petitioner. Subsequently, an F.I.R was lodged while this application was pending for consideration and, therefore, by way of interlocutory application, F.I.R. has also been sought to be quashed as the Vigilance had no business to lodge the case while the matter was under consideration before the PAC particularly when the Government had promised that the report of the Vigilance would be laid before the Public Accounts Committee. In this regard, it was further submitted that CAG made certain objections over the functioning of Jharkhand Renewable Energy Development (JREDA). That report was placed before the Jharkhand Legislative Assembly and then it was referred to the Public Accounts Committee (PAC). While the matter was under consideration before the Public Accounts Committee, the Government did report to the PAC that the Government is intending to get the matter relating to objections raised with respect to financial irregularity inquired into by the Vigilance Department. The Vigilance after holding inquiry instead of reporting to the Government and the Government in turn to PAC itself lodged the first information report, which is in contravention of the Constitutional Provision. In this regard, it was submitted that since the CAG report is the exclusive property of the legislature any interference by any of the authorities including the judiciary till such time that the legislature continues to remain in seisin would amount to transgression to the authority of legislature and, as such, it would never be permissible particularly when it would be transgressing the Doctrine of Separation of Powers as envisaged under the Constitution. In this regard Mr. Sinha goes on to state that under Article 208 of the Constitution of India a House of the Legislature of the State is empowered to make rules for regulating its procedure and conduct of its business. In exercise of this power Jharkhand State Assembly has made rules known as Rules of Procedure and Conduct of Business in Jharkhand Vidhan Sabha. In order to have financial control over the Government expenditure, the Assembly has constituted PAC and all the powers as referred in Entry 39 of List-II have been given to the Public Accounts Committee. In exercise of this power Jharkhand State Assembly has made rules known as Rules of Procedure and Conduct of Business in Jharkhand Vidhan Sabha. In order to have financial control over the Government expenditure, the Assembly has constituted PAC and all the powers as referred in Entry 39 of List-II have been given to the Public Accounts Committee. Rule 238 does stipulate about the duties of the Public Accounts Committee in the matter relating to scrutinizing the Appropriation Accounts and the Finance Accounts of the State and the report of the Comptroller and Auditor General relating to such accounts. To be more specific the Committee needs to satisfy itself on the following matter: - (i) That the money voted by the Assembly has been spent within the scope of the demands granted by the Assembly and to bring to the notice of the Assembly about every case to which it is not so satisfied, (ii) That the money shown in the accounts having been disbursed where legally available for an applicable to the service or purpose to which they have been applied or charged, (iii) That the expenditure conforms to the authority which governs it, and (iv) That every re-appropriation has been made in accordance with the rules made in this behalf by the Governor or by the Finance Department as the case may be. 3. Thus, by referring to the aforesaid provision submission was made that so long Public Accounts Committee is in seisin with the matter, financial irregularity raised either by the Comptroller and Auditor General or by any other source, the others including the Court will have absolutely no say in the matter but in the instant case while the Public Accounts Committee was waiting for the report to be submitted by the Vigilance, the Vigilance by ignoring the Constitutional provision and in derogation of the authority of the PAC, has lodged the first information report, which warrants to be quashed only on this ground. Learned counsel in support of his submissions has referred to a decision rendered in a case of “Arbind Kumar Sharma Vs. State of Bihar through the Chief Secretary, Government of Bihar, Patna and Others [ 2011 (4) P.L.J.R. 887 ]. 4. Learned counsel in support of his submissions has referred to a decision rendered in a case of “Arbind Kumar Sharma Vs. State of Bihar through the Chief Secretary, Government of Bihar, Patna and Others [ 2011 (4) P.L.J.R. 887 ]. 4. A counter affidavit has been filed, which is quite in detail wherein it has been stated that the Government of Jharkhand through Cabinet (Vigilance) Department informed the Vigilance Bureau, Jharkhand that a team deputed by the Accountant General, Jharkhand and also a team of the Auditors, deputed by the Finance Department, Government of Jharkhand, has found evidences of embezzlement, abuse of authority and financial irregularities in Jharkhand Renewable Energy Development (JREDA) and, as such, it should conduct a preliminary inquiry over the matter. In compliance of the aforesaid directions, the Vigilance Bureau took up the matter for preliminary inquiry, which was inquired into by an Officer of the rank of Superintendent of Police. In course of inquiry, several materials came to light showing commission vi many criminal offences and, therefore, the Vigilance could not confine itself only to the inquiry relating to the objections raised by the teams of the Accountant General as well as the Auditors of the Finance Department, rather went beyond it. In course of inquiry, it was found that the Government of Jharkhand had decided to award the work relating to the solar electrification of 82 villages under a Remote Village Electrification Programme (RVEP) to Rajasthan Electronics and Instruments ltd. (REIL), but the petitioner, who was working as Director, JREDA, did not award the work to REIL, a public sector under taking but to a private company called as PPS Enviro Power Limited without taking permission from the Government. The extent of value of the work was as such that the Director, JREDA, could not have taken any decision without approval of the Government. That apart, other kinds of irregularity amounting to defalcation, forgery, misappropriation was found and, thereby, JREDA was put to loss to the tune of Rs.48,28,131/-. It has also been stated that while the matter was under inquiry, a PIL was filed, whereby this Court passed an order giving directions to the Vigilance Bureau for completing the inquiry within three months. That apart, other kinds of irregularity amounting to defalcation, forgery, misappropriation was found and, thereby, JREDA was put to loss to the tune of Rs.48,28,131/-. It has also been stated that while the matter was under inquiry, a PIL was filed, whereby this Court passed an order giving directions to the Vigilance Bureau for completing the inquiry within three months. The Hon'ble High Court did further pass order that if anything or any criminality is found, the State Government and the concerned department will be free to take appropriate action on the basis of finding with respect to any of the issue and the State. Government or any of the Departments shall not take an excuse for not taking action due to the pendency of the Public Interest Litigation. Under this situation, when in course of inquiry criminality was found on the part of the accused persons, the Vigilance did submit report and also lodged an FIR and in such situation, first information report never warrants to be quashed. 5. Having heard counsel for the parties and on perusal of the records, it does appear that the stand, which has been taken by the petitioner is that any objection if raised by the Comptroller and Auditor General (CAG) with respect to financial irregularity that as per the Constitutional Scheme is to be inquired into by the Public Accounts Committee and as long as the PAC remains in seisin with the said matter, the other functionaries including the Court does not have any authority to interfere in the matter. The submissions advanced, is hardly to be accepted for the reason that the duties of the Public Accounts Committee as per the provision as contained in Rule 238 of the rule of procedure and conduct of business in the Jharkhand Vidhan Sabha is to see that the money voted by the Assembly has been spent within the scope of the demands granted by the Assembly and that the expenditure conforms to the authority which governs it and that every re-appropriation has been made in accordance with the rules made in this behalf by the Governor or by the Finance. Department as the case may be. Department as the case may be. But where the matter relating to objection raised by CAG pertains to any financial irregularity having characteristic of any criminality that would not lie within the exclusive domain of PAC rather than to be governed by the general law under the Scheme of Code of Criminal Procedure where one can put the matter in motion if it discloses cognizable offence, Therefore, the submissions made on, behalf of the petitioner in this regard is devoid of any substance. Furthermore, it does appear that it is the case of the Vigilance that in course of making inquiry over the objection raised by the teams of the Accountant General and the Auditors of the Finance Department, the Vigilance did find several financial irregularities being committed by the accused persons in the matter of rural electrification undertaken by JREDA and also in other projects, which were never the subject matter of objection raised by the team of the Accountant General and the Auditors, Finance Department. This is the clear cut indicative of the fact that the FIR lodged by the Vigilance is never based exclusively on the irregularities committed in the affairs of JREDA, which was pointed out by the team of Accountant General and the Auditors of the Finance Department. In that event, one never finds any illegality with the judgment of the case and, hence, the first information report, lodged, never warrants to be quashed. 6. Further it be stated that in the case referred to above, the Court accepted the submissions akin to the submissions advanced on behalf of the petitioner only when it was found that the fact of corruption in public administration, misconduct by the bureaucracy, fabrication of official records and misappropriation of public funds, fraudulent drawal was never in• issue. Indirectly, Their Lordships seems to have held that if any report pending before the PAC, discloses about such criminal acts, as mentioned above, it would not deter any authority to lodge a case. Accordingly, this criminal writ application stands dismissed.