Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 106 (PAT)

Arun Sah v. State Of Bihar through C. B. I.

2013-01-23

SHIVAJI PANDEY

body2013
ORDER Heard learned counsel for the petitioner and learned counsel for the Central Bureau of Investigation. 2. This application has been filed for quashing the order dated 5.3.2011, passed in Special Case No.27 of 2005, arising out of R.C. No. 24(A) of 2005 by the learned Special Judge, C.B.I., South Bihar, Patna by which the court below has rejected the discharge application filed by the petitioner as the court found sufficient material to proceed with the case against the petitioner. 3. From the record it appears that C.B.I. lodged an F.I.R. vide R.C. No. 24(A) of 2005 making an allegation therein that that Arun Sah (petitioner) the then Member-Convener, Council for Advancement of People’s Action and Rural Technology (hereinafter referred to as „the CAPART?), Patna, while working as such during the period of 2002-2003 entered into a criminal conspiracy with Akhilesh Kumar Singh Evaluator, CAPART, Patna, Arvind Kumar, President, Bihar Samajik Vikash Samiti, Kankarbagh, Patna (hereinafter referred to as „the Samiti), Bhushan Singh, Secretary of the Samiti, Arun Kumar Singh, Treasurer. It has been alleged that Arun Sah (petitioner) abused his official position, fraudulently and dishonestly recommended for sanctioning/sanctioned projects and released Rs.6,52,000/- in favour of the N.G.O., Samiti. It has further been alleged that the above mentioned N.G.O. submitted forged statement of the bank account and obtained the assistance of Akhilesh Kumar Singh (not charge-sheeted) recommended the sanction of assistance despite the fact that the statement of bank account submitted by the N.G.O. was forged. During investigation the C.B.I. found the Samiti was/is a registered NGO/VO and was/is defunct organization. Its address was X-ray Center,, Bhanvar Pokhar, Patna and office bearers were Dr. Iftekhar Ahmad Khan, President, Sh Iqbal Iftekhar Ahmad, Secretary and Firoz Khan, treasurer. It has further been alleged that there has been no amendment in the by-laws of the organization and Bhushan Singh and Arun Kumar Singh submitted forged copy of memorandum and rules of the organization showing themselves as the functionaries of the Samiti. The investigation further revealed that Bhushan Singh submitted an application in the office of CAPART for assistance of Rs. 9,40, 566/- on 28.8.2002 as Secretary, of the Samiti, for renovation of Jamindari Bandh, construction of Pulia and providing hand pumps at Chandkura village of Karai Parashurai, Nalanda. The application submitted in the office of CAPART, Patna was forwarded by Arun Sah (petitioner), the then Member Convener for further action. 9,40, 566/- on 28.8.2002 as Secretary, of the Samiti, for renovation of Jamindari Bandh, construction of Pulia and providing hand pumps at Chandkura village of Karai Parashurai, Nalanda. The application submitted in the office of CAPART, Patna was forwarded by Arun Sah (petitioner), the then Member Convener for further action. He has given a note where he himself pointed out “ VO may be asked to get a meeting of Gram Sabha formally and not under the auspices of VO. The bank account submitted also looks dubious. During the meeting of Gram Sabha VO may be asked to reduce the project cost to Rs.5 lacs.” It has been further alleged that the functionaries of the N.G.O. concerned submitted forged copy of the bank account along with its application for CAPART assistance and the petitioner had a reasonable doubt with regard to dubious nature of the documents submitted by the NG.O. and even then, in pursuance of the said criminal conspiracy asked Bhushan Singh to produce a certificate regarding the genuineness of the said bank account from the concerned bank. The Samiti (VO) was a first timer to CAPART and as per the practice of CAPART the project cost was required below Rs.5,00,000/-. Arun Sah (petitioner) himself raised the issue and directed Bhushan Singh to convene the meeting of the Gram Sabha through Mukhiya, get the project revised in the Gram Sabha and to furnish a resolution accordingly but meeting was not convened and Arun Sah (petitioner)was appointed as Facilitator-cum-Evaluator for pre-funding evaluation. After receipt of pre-funding appraisal, the petitioner put up agenda of assistance within Rs.5,00,000/- as prepared by his office. The Regional Committee sanctioned CAPART assistance to the tune of Rs.6,52,000/-. Arun Sah in pursuance of conspiracy knowing fully well about the status of the N.G.O. did not object and remained silent due to which CAPART assistance of Rs.6,52,000/- was passed in the meeting of Regional Committee. The said act of the petitioner caused a wrongful loss to the CAPART to the tune of Rs.6,52,000/-. On the basis of the aforesaid statement the First Information Report was lodged and after proper investigation charge-sheet was submitted and sanctioning authority, considering the material on record, vide letter dated 31.8.2006 passed sanctioned order. The said act of the petitioner caused a wrongful loss to the CAPART to the tune of Rs.6,52,000/-. On the basis of the aforesaid statement the First Information Report was lodged and after proper investigation charge-sheet was submitted and sanctioning authority, considering the material on record, vide letter dated 31.8.2006 passed sanctioned order. The court below took cognizance against the petitioner under sections 120B, 420, 467, 468 of the Indian Penal Code and Sections 13(2) read with section 13(1)(d) of the Prevention of Corruption Act. 4. After cognizance the matter proceeded further. An application of discharge dated 6.5.2010 was filed on behalf of the petitioner under section 227 of the Code of Criminal Procedure and after due consideration the court below rejected the application. 5. Learned counsel for the petitioner submits that the petitioner was mere a convener and he himself has given a note that the N.G.O. was the first timer and as such the assistance from CAPART cannot be more than Rs.5,00,000/-. It has further been submitted that the CAPART assistance was enhanced from Rs.5,00,000/- to Rs.6,52,000/ in the meeting of the Regional Committee constitutes other members and on their approval the assistance was approved to the tune of Rs.6,52,000/-. It has further been submitted that the Regional Committee consist of several members even I.A.S Officer is one of the member. The petitioner was mere a member. It is the committee which has enhanced the assistance and the role that has been alleged against the petitioner is keeping of mum having not objected the enhancement of the said amount is no offence, if any wrong has been committed, in that circumstances, each and every, member would be held responsible and the petitioner can not be isolated. It has further been submitted that the petitioner was the member of the committee and he can not be picked up singly to face heat of criminal case as other members who were party to enhancement of the said amount have been left out. In support of his submission he has relied on the judgment in the case of Bongaigaon Refinery and Petrochemicals Ltd. and others Vs. Girish Chandra Sarma, reported in 2007(7) SCC 206 . It has further been submitted that keeping a silence cannot be a ground for criminal prosecution against the petitioner. 6. In support of his submission he has relied on the judgment in the case of Bongaigaon Refinery and Petrochemicals Ltd. and others Vs. Girish Chandra Sarma, reported in 2007(7) SCC 206 . It has further been submitted that keeping a silence cannot be a ground for criminal prosecution against the petitioner. 6. Learned counsel for the Central Bureau of Investigation has objected the arguments advanced on behalf of learned counsel for the petitioner and submitted that the petitioner was the main person behind swindling of money of CAPART. He was the main choreographer who hatched a plan of conspiracy knowing fully well that the said N.G.O was a defunct organization and by-laws was not amended. It has been alleged, in order to stream line the sanction he directed another person Bhushan Singh to convene the meeting of the Gram Sabha through Mukhiya and got the project revived in Gram Shabha and furnish the resolution accordingly. Bhushan Singh did not call the meeting of Gram Sabha and the petitioner was appointed as Facilitator-cum-Evaluator for pre-funding evaluation. Full details of fact have been mentioned in paragraph nos. 6, 8 and 9 of the counter affidavit. All matters have been narrated to show how the petitioner was involved in manipulation/enhancement and release of the assistance of fund by CAPART and submitted that the petitioner is real person behind the scene. In support of his contention he has relied on the following judgments : (i) State of N.C.T. of Delhi Vs. Ajay Kumar Tyagi, reported in 2012 AIR SCW 4815 Paragraph 29, (ii) State of Himachal Pradesh Vs. Krishan Lal Pardhan and others, reported in 1987 (2) SCC 17 , Paragraphs nos. 8 to 10 and (iii) State of Madhya Pradesh Vs. Awadh Kishore Gupta and others reported in 2004(1) Cri.L.J. 598, Paragraph no.11. 7. It is well known principle of law that at the stage of discharge the court is not required to meticulously examine the evidence as has been held by the Hon?ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in 2005(1) SCC 568 . The Hon?ble Supreme Court in the case of P. Vijayan Vs. It is well known principle of law that at the stage of discharge the court is not required to meticulously examine the evidence as has been held by the Hon?ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in 2005(1) SCC 568 . The Hon?ble Supreme Court in the case of P. Vijayan Vs. State of Kerala and another, reported in (2010) 1 SCC 398 has held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge is empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” in Section 227 Cr.P.C. clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or enter into a weighing and balancing of evidence and probabilities which is really the function of the court at the trial stage. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused as to frame a charge against him. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under section 228 Cr.P.C., if not, he will discharge the accused. 8. In this view of the matter, this Court is to examine the order of the court below as to whether the court below has dealt with the allegation made against the petitioner. 8. In this view of the matter, this Court is to examine the order of the court below as to whether the court below has dealt with the allegation made against the petitioner. The court below held that Arun Sah in pursuance of conspiracy did not object and remained silent due to which CAPART assistance of Rs.6,52,000/- was passed in the meeting of the Regional Committee causing a wrongful loss to the department to the tune of Rs.6,52,000/-. On merit also this Court feels that the allegation has been made in the charge-sheet that the petitioner had knowledge about the defunct organization and having directed to hold meeting of Gram Sabha, was fully knowing, as alleged, the document produced by the co-accused was manufactured document. These are the factors which shows grave suspicion against the petitioner as he was attached with the proceeding right from beginning up to end product. Learned counsel for the petitioner submits that he cannot be picked up as the committee has passed the order as submitted by learned counsel for the C.B.I. that other members of the committee were not knowing the factum of defunct organization, submission of manufactured document of bank, giving direction by the petitioner to hold meeting of the Gram Sabha. These are factors which show that keeping silence was a strategy for passing of assistance amount in favour of defunct organization. 9. In this view of the matter the judgment that has been relied by learned counsel for the petitioner in the case of Bongaigaon Refinery and Petrochemicals Ltd. (supra) is not applicable to the facts of present case. This Court finds, there was sufficient material causing the grave suspicion against the petitioner. The court below has rightly refused to discharge the petitioner from criminal case. However, the petitioner has submitted that other leading persons were left out that will be seen at the stage of trial dependent on nature of evidence comes through witnesses. However, any finding or anything recorded hereinabove will not be taken into consideration by the court below at the time of final judgment. 10. Accordingly this application is dismissed.