Janardan Prasad Rai v. State of Jharkhand through CBI (ACB), Ranchi
2018-10-26
B.B.MANGALMURTI
body2018
DigiLaw.ai
JUDGMENT : Heard learned counsel for the petitioner and learned counsel for the C.B.I. 2. The instant revision application has been filed against the order dated 09.08.2017 in R.C. Case No. 19(A) 2008-R passed by Special Judge, C.B.I., Ranchi by which the prayer for discharge of the petitioner has been rejected. 3. The short fact of the case is that the C.B.I. got information about the award of a tender for repair and painting of building of Shyamli Township and by changing the terms of the tender by the officers of MECON Ltd. for the purpose of showing undue favour to the contractors namely M/s. J.P. Rai and M/s. P.K. Mishra who were awarded the work during the year 2007. The further allegation is that CMD, MECON Ltd. had given administrative and financial approval for the repair of damaged buildings of MECON Township by inviting an open tender but limited tenders were called from the contractors who had little/no experience. By making the correction / change, the word from ‘open’ to ‘limited’ tender the officials with dishonest intention had approved the Tender Committee’s recommendation without taking any approval from the competent authority for making changes in the method of tender from ‘open’ to ‘limited’. 4. Counsel for the petitioner submitted that he is one of the contractors who was awarded the work for repair of Shyamli Township. He further submitted that the court below has not taken into consideration that the MECON Ltd. had issued completion certificate dated 22.04.2009 in favour of this petitioner after completion of the repair work which was successfully completed within the stipulated time that is by 30.09.2008. He also submitted that the sample taken from the contractor was also tested by the National Test House (NR), Kamla Nehru Nagar, Ghaziabad, U.P. at the instance of the Vigilance Department of MECON Ltd. where the quality of the work was found as per requirement of the tender. Lastly he submitted that the court below has not considered those documents which were in favour of the contractor and came to the findings adverse to the interest of this petitioner. 5. Mr.
Lastly he submitted that the court below has not considered those documents which were in favour of the contractor and came to the findings adverse to the interest of this petitioner. 5. Mr. Rajeev Nandan Prasad, Advocate appearing on behalf of the C.B.I. opposed and submitted that this petitioner-contractor had submitted misleading documents claiming work experience in order to get the tender although he was not competent enough to execute the work as he had never handled the work of such big volume and hence he could not complete the work on time. He further submitted that during the decision making process, clauses of the tender were dishonestly changed and the word ‘open’ was converted into ‘limited’ tender without any approval of the CMD, MECON Ltd. nor even the post facto approval was taken from him that amounts to misuse of official position with a purpose of illegal gain. He also submitted that the meticulous examination of voluminous material is not at all required while considering the prayer for discharge or hearing at the stage of the charge and the trial court has rightly rejected the prayer of the petitioner. In the case of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation (Supra) reported in 2018 (2) JLJR 320 (SC) the Hon’ble Supreme Court in paragraph 32 has held as under :- “32. … … … Consideration of the challenge against an order of framing charge may not require meticulous examination of voluminous material which may be in the nature of mini trial. Still, the Court is at time called upon to do so in spite of law being clear that at the stage of charge the Court has only to see as to whether material on record reasonably connects the accused with the crime. … … …”. 6. He also relied on a decision in case of Rajiv Kumar Vs. State of Uttar Pradesh and Another reported in (2017) 8 SCC 791 wherein the Ho’ble Apex Court has held as under:- “45. The essential ingredients of the offence of criminal conspiracy are (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.
The essential ingredients of the offence of criminal conspiracy are (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself”. 7. Therefore, meeting of mind between the two or more persons for causing an illegal act through an illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Learned counsel for the CBI submitted that the court below has rightly come to the finding that there are sufficient material available on record and thereby rejected the petition for discharge. 8. Considering the above submissions of the parties and the papers attached with this application, it appears that the court below after due consideration of the materials available on record came to the finding that the matter relates to change of nature of tender from ‘open’ to ‘limited’ tender and the role of officials of M/s. MECON Ltd. who, with dishonest intention, approved the recommendation of the Tender Committee and issued limited tender without taking the approval from the competent authority and this petitioner became the successful contractor and got the contract in his favour although he had no work experience to handle such work. In the case of State of Rajasthan Vs. Fatehkaran Mehdu reported in (2017) 3 SCC 198 , the Hon’ble Supreme Court has held that at the stage of framing of charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt.
The framing of charge is not a stage, at which stage final test of guilt is to be applied. The court below has passed order taking into consideration all these materials and rejected the discharge petition filed on behalf of the petitioner-contractor. 9. Finding no illegality or irregularity in the impugned order dated 09.08.2017, the instant revision application is dismissed. Revision dismissed.