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Jharkhand High Court · body

2013 DIGILAW 916 (JHR)

Ratan Kumar Singh v. State of Jharkhand

2013-07-29

R.R.PRASAD

body2013
ORDER This revision application is directed against the order dated 20.2.2013 passed in Vigilance P.S. case no.68 of 2010 (Special Case no.85 of 2010) whereby and whereunder prayer made by the petitioner for his discharge from the case was rejected. 2. It appears that in compliance of the order passed by this Court in W.P(PIL) No.1530 of 2009, a preliminary enquiry was conducted by the Vigilance Department wherein it was found that in spite of Junior Engineers of Building Division being available, Assistant Teachers, who were having diploma/degree were deputed to supervise and to construct building of primary schools and other schools situated in different blocks of Bokaro district under the sponsored programme of the Government. They in course of constructing/supervising of construction work of the building of the schools indulged themselves in corrupt practices and thereby they put the Government to heavy loss. 3. On the basis of preliminary enquiry, FIR was lodged wherein it was alleged that in the meeting of Reflection-cum-Planning held at Ranchi, a decision was taken, on the plea of dearth of Junior Engineers, to impart training to the teachers having diploma in engineering so that they may be entrusted with the job of construction/supervision of the building of the schools. Pursuant to that decision, this petitioner, who happened to be the then District Superintendent of Education-cum-Project Officer, Sarva Shiksha Abhiyan, Bokaro deputed six teachers for having training at the District Institute of Education and Training (DIET), Ratu, Ranchi, vide its letter dated 5.5.2004. After they received training at DIET, the then Deputy Commissioner-cum-Chairman, Sarva Shiksha Abhiyan, Bokaro deputed them in different blocks for supervising /constructing the work of construction of the building of new primary schools and upgraded schools, vide its letter as contained in memo no.998 dated 1.12.2004. By the said order Ashok Kumar Bharti was deputed in Gumla block. Subsequently, the then Regional Deputy Director, Education, North Chota Nagpur, Hazaribagh vide its letter dated 7.2.2005 entrusted Ashok Kumar Bharti to take up the work of the construction of the school situated in Chandankiyari block. Thereafter the then Minister concerned when came to know about the fact that from the teachers of the schools work which was supposed to be done by the engineer is being taken, he immediately passed an order for stopping that practice. Pursuant to that, the teachers were relieved from the construction work of the school. Thereafter the then Minister concerned when came to know about the fact that from the teachers of the schools work which was supposed to be done by the engineer is being taken, he immediately passed an order for stopping that practice. Pursuant to that, the teachers were relieved from the construction work of the school. But then Regional Deputy Director, vide its letter dated 27.12.2010 passed an order directing Ashok Kumar Bharti for adjustment of the amount taken in advance and by that time it is done, he was allowed to do the said work which was entrusted to him. Thereafter the then Regional Deputy Director, Hazaribagh, vide its letter dated 17.9.2007 entrusted Ashok Kumar Bharti with the construction work of the building of the schools situated in Petarwar block and also of the building of Kasturba Gandhi Residential School. 4. Thus, it has been alleged that teachers in contravention of the Rule of the Government were deputed to do the construction work/supervising the construction work of the building of the schools and they in that course, misappropriated huge amount. The matter was taken for investigation and after completion of the investigation, when charge sheet was submitted, cognizance of the offences punishable under Sections 120B, 406,409, 467, 478, 471 of the Indian Penal Code and also under Section 7/13(2) read with Section 13(1)(d)(c) of the Prevention of Corruption Act was taken. Subsequently, an application was filed under Section 239 of the Code of Criminal Procedure for discharging the petitioner from the case by taking plea that this petitioner, who was posted as District Superintendent of Education-cum-Programme Officer, Sarva Shiksha Abhiyan, Bokaro from 25.2.2003 to 10.11.2004 had simply deputed six teachers, who were having technical diploma/degree in engineering for having training at DIET and thereafter he did not do any act concerning the construction of the building of the school/ supervision of the construction of the building, rather it was the then Deputy Commissioner, who had passed an order for their deputation in different schools to construct building of the school, still the prayer was rejected. 5. Being aggrieved with the order dated 20.2.2013, this application was filed. 6. Mr. 5. Being aggrieved with the order dated 20.2.2013, this application was filed. 6. Mr. Bhanu Kumar, learned counsel appearing for the petitioner highlighted the same point that the petitioner being posted as District Superintendent of Education at the relevant point of time had deputed six teachers, who were having diploma/degree in engineering to have training, vide its letter dated 5.5.2004, pursuant to the decision taken in Reflection-cum-Planning Meeting at Ranchi. Thereafter the petitioner got transferred from there and only after the transfer of the petitioner from the post of District Superintendent of Education, Bokaro those teachers were deputed by the then Deputy Commissioner, vide its letter dated 1.12.2004 to do the construction work of the building of the school and they, as per the case of the prosecution, seem to have engaged themselves in doing the said work till 2008. During this period, the petitioner had nothing to do with the matter relating to construction of the building of the school by those teachers which could not have been done as the petitioner had been transferred from the post of District Superintendent of Education, still the petitioner is being prosecuted simply for the reason that the petitioner had deputed six teachers for having training at DIET but that had been done under the order of his superior and therefore, the petitioner cannot be said to have committed any offence under which cognizance has been taken. 7. In the aforesaid circumstances, it was submitted that it is apparent that there is absolutely no ground for presuming that the accused has committed offence and if that is so, the petitioner deserves to be discharged from the case. In support of his submission a decision rendered in a case of Amit Kapoor vs. Ramesh Chandra and another [ (2012) 9 SCC 460 ] was referred to. 8. In support of his submission a decision rendered in a case of Amit Kapoor vs. Ramesh Chandra and another [ (2012) 9 SCC 460 ] was referred to. 8. As against this, Mr.Shailesh, learned counsel appearing for the Vigilance submits that during investigation of the case it has been found that the then Deputy Commissioner and the Officers of the Education Department including the petitioner in connivance with other accused persons appointed Ashok Kumar Bharti, Junior Engineer to construct the school buildings, who misappropriated huge amount and this petitioner had, in fact, initiated the process by deputing Ashok Kumar Bharti to have training at DIET, though he was not possessing diploma in civil engineering rather he was having diploma in mining and he was the person who having conspired with others misappropriated huge amount by indulging himself in corrupt practices and thereby the petitioner, who is the initiator of the whole process cannot escape from being prosecuted for the alleged offence of cheating, misappropriation with the aid of 120B. 9. Learned counsel by placing reliance on a decision rendered in a case of Soma chakravarty vs. State through C.B.I [ (2007) 5 SCC 403 ] submits that the Hon’ble Supreme Court upon only accusation that the appellant did process the bill upon which other accused persons did draw the money did find that accusation is sufficient to put the appellant to trial. Similar is the case here as the petitioner is the initiator of the whole process whereby other accused on initiation of the process did commit offence of misappropriation and forgery, the petitioner under the circumstances stated above, never deserves to be discharged from the case. 10. Similar is the case here as the petitioner is the initiator of the whole process whereby other accused on initiation of the process did commit offence of misappropriation and forgery, the petitioner under the circumstances stated above, never deserves to be discharged from the case. 10. Having heard learned counsel appearing for the parties it does appear that in the whole process of the alleged acts e.g. deputing the teachers for training, who were having diploma/degree in engineering, deputation in the blocks to take construction or to supervise the construction of the building of the schools and then payment of the amount to those teachers without having construction of the building to that extent to which payments were taken, the petitioner’s role appears to be only to depute the teachers having diploma/degree in engineering for having training at DIET, pursuant to the decision taken in the meeting of Reflection-cum-Planning only as, according to the case of the prosecution, itself the petitioner thereafter on being transferred to other place did not do any act in the whole process as indicated above. 11. In such situation, it is to be considered as to whether the court did commit illegality in refusing to discharge the petitioner from the case? 12. It is well settled that in a case where upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and that there exists no ground to proceed against the accused, the court may discharge the accused. 13. In this respect I may refer to a decision rendered in a case of Union of India vs. Major J.S. Khanna [ (1972) 3 SCC 873 ] wherein the Hon’ble Supreme Court did opine hereunder: “22. It is true that at the stage when the Special Judge drew up charges and decided to proceed with the case on the footing of a conspiracy to defraud the Government, he had only to see that there was a prima facie case against the two respondents. That could also be the basis upon which the High Court had to try upon two revision applications. That could also be the basis upon which the High Court had to try upon two revision applications. Even so, there had to be some material before the Special Judge which could point towards a conspiracy in which the two respondents had joined. Such of the statements which the investigating officer could procure did not as the High Court observed, point to such a conspiracy. What appears to have been lost sight of by the Special Judge was the fact that the period during which the orders in question were placed was an emergency period, when procedure laid down for such orders could not perhaps be strictly adhered to. He also appears to have lost sight of the fact that out of the thirteen orders in question, four of the value of Rs.32,000/-and odd were placed by Brig. Mani, and orders only for the balance of Rs.8000/-and odd were placed by Res. Khanna. It may be that someone had played fraud in the matter of quotations in the name of Darrang Transport, United Motor Works, Auto Stores, etc. But unless there was some material at least to link these two officers with the person who tendered those quotations, it is difficult to say that there were conspirators who had joined with the rest of the accused to defraud the Government. In these circumstances, we find ourselves unable to agree with the contention of Mr. Mukherjee that the High Court was in error in coming to the conclusion that no prima facie case had been made out against either of the two officers.” 14. Further in a case of State of Maharashtra vs. Som Nath Thapa [ (1996) 4 SCC 659 ] the Hon’ble Supreme Court held as under: “30.In Antulay case Bhagwati, C.J, opined, after noting the difference in the language of the three pairs of sections, that despite the difference there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of ‘prima facie’ case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. 31. Let us note the meaning of the word ‘presume’. In Black’s Law Dictionary it has been defined to mean ‘to believe or accept upon probable evidence’. In Shorter Oxford English Dictionary it has been mentioned that in law ‘presume’ means ‘to take as proved until evidence to the contrary is forthcoming’, Stroud’s Legal Dictionary has quoted in this context a certain judgment according to which ‘A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged.’ In Law Lexicon by P. Ramanatha Aiyar the same quotation finds place at P.1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might be committed the offence it can frame the charge, though for conviction conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage”. 15. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage”. 15. Having noticed the said decision, referred to above, the Hon’ble Supreme Court in a case referred to on behalf of the Vigilance (Soma chakravarty vs. State through C.B.I) did hold hereunder: “The courts although may take a strict view of an offence where fraud is alleged against a public servant, but only because it is found to have been committed, the same by itself may not be sufficient to arrive at a conclusion that all officers who have dealt with the files at one point of time or the other would be taking part of conspiracy thereof or would otherwise be guilty for aiding and abetting the offence. It is necessary to deal with the individual act of criminal misconduct for finding out a case therefore.” 16. However, the Hon’ble Supreme Court taking into account the fact and circumstances of the case that the appellant (Soma Chakravarty) had never been assigned any duty in respect of processing or signing the bills for ad hoc advertisements, rather she was assigned duty only of re-advertisements and that those bills were not sanctioned/approved by the competent authority i.e, the Chairman/Executive Director and also on account of the fact that the prosecution had started examination of the witness, the Hon’ble Supreme Court declined to exercise discretionary jurisdiction under Article 136 of the Constitution of India. 17. So far as the instant case is concerned, I have already indicated that the prosecution has come forward with the case against the petitioner that this petitioner had deputed certain Assistant Teachers having diploma/degree in engineering, pursuant to the decision taken in Reflection-cum-Planning Meeting for having training at DIET so that he may take up the construction work or to supervise the construction of the building. Only on this accusation, the petitioner is being sought to be tried for the charges under Sections 120B, 406,409, 467, 478, 471 of the Indian Penal Code and also under Section 7/13(2) read with Section 13(1)(d)(c) of the Prevention of Corruption Act, though the petitioner after deputing those teachers to go for training at DIET did not do any act so as to attract any offence of forgery. 18. 18. It be recorded that the stand of the Vigilance is that this petitioner though deputed one of the teachers, namely, Ashok Kumar Bharti to have training but he was not having any diploma/degree in civil engineering, rather he was having diploma in mining engineering. Accepting this stand of the prosecution to be true, it hardly involves the petitioner with the culpability in absence of any further material showing connivance with other accused persons. 19. Here, it would be worth while to note that after transfer of this petitioner from the post of District Superintendent of Education, Bokaro, the teachers who were imparted with the training were deputed in different blocks for taking up the construction work of the building of the schools or for supervision of the work and only thereafter whatever illegal act was done it was done by the said Assistant Teachers or any other officials for committing offence of misappropriation but for that the petitioner cannot be associated with even with the aid of Section 120B of the Indian Penal Code. 20. For establishing Act of Criminal Conspiracy, the prosecution need to come forward with following accusation. 1. that the court agreed to do or caused to be done an act 2. that such Act was illegal or was to be done by illegal means 3. that some act was done by one of the accused in pursuance of the agreement. 21. At the same time, it has also been well established that where the agreement is to do or caused to be done an act which is itself an offence no overt act needs to be proved, the crime of offence of criminal conspiracy is established once such crime is proved. 22. Nothing seems to be there against the petitioner to presume that the teachers were deputed in the blocks to do work of the Junior Engineer only for the purpose of committing offence of forgery and misappropriation. 23. It is true that the petitioner, as per the case of the prosecution, had attended the meeting of Reflection-cum-Planning and then when decision was taken in the said meeting, it was carried out by the petitioner by deputing certain teachers to go for training at DIET. 23. It is true that the petitioner, as per the case of the prosecution, had attended the meeting of Reflection-cum-Planning and then when decision was taken in the said meeting, it was carried out by the petitioner by deputing certain teachers to go for training at DIET. Had the prosecution come with the case that at the inception itself when meeting was called the persons attended the meeting had agreed to do the alleged illegal act, the act of the petitioner would have been sufficient to put him on trial. Moreover, when the petitioner after carrying out the said decision taken in the meeting got transferred to other place and thereafter did not do any Act in the commission of offence as alleged, how the petitioner can be said to be the part of conspiracy. Therefore, the act done by the petitioner cannot be said to be sufficient to proceed against the petitioner. 24. Thus, the fact of the present case is quite different from the fact of the case referred to on behalf of the Vigilance and therefore, the ratio laid down in that case is never applicable in the instant case. 25. So far the offence under Section 13(1)(d)(c ) read with Section 13(2) o the Prevention of Corruption Act is concerned, the petitioner, according to the case of the prosecution, by deputing the teachers for training initiated the whole process of illegal act but he has never been alleged to have done that by adopting corrupt practices or illegal means for having pecuniary advantage/ valuable thing by himself or for any other person. The aforesaid essential ingredient constituting offence under Section 13(1)(d)(c ) is completely lacking as nothing could be placed to show even an iota of evidence/material of receiving pecuniary advantage and as such, one cannot be prosecuted for an offence under Section 13(1)(d)( c) read with Section 13(2) of the Prevention of Corruption Act. 26. The court below did not consider all these aspects of the matter at all and thereby the court can certainly be said to have committed illegality in refusing to discharge the petitioner from the case. Accordingly, it is set aside. 27. Consequently, the petitioner is discharged from the case. Thus, this application stands allowed.