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2018 DIGILAW 2686 (JHR)

Joydeep Biswas v. Union Of India

2018-12-07

B.B.MANGALMURTI

body2018
JUDGMENT B.B. Mangalmurti, J. - Heard learned counsel for the parties. 2. Petitioner has preferred these two criminal writ applications, challenging sanction for prosecution order dated 08.10.2012 passed by the respondent no.3, in connection with R.C. 10(A)/2011-R as well as for quashing of the supplementary charge-sheet dated 31st March, 2015, filed by the C.B.I. in connection with R.C. 10(A)/2011-R in the subsequent writ, filed by him. 3. The short facts of the case relevant to these writ applications are that the C.B.I. lodged an F.I.R. after getting information from reliable sources that petitioner Joydeep Biswas, posted as Deputy Director (East Division), Soil Conservation Department, DVC, Hazaribag, Jharkhand with other coaccused persons entered into a criminal conspiracy among themselves in the execution of ''River Valley Project Scheme'' for advance and creation work (afforestation) in Watershed No.-2A2E1C under Zone-V of DVC, SCD, Hazaribagh during the period 2008-10 and committed the offences of cheating, forgery and criminal misconduct, and in pursuance thereof caused a wrongful loss of Rs.40 lakhs to the DVC and corresponding wrongful gain to themselves and others by false and fabricated measurement books, hand receipts and vouchers prepared in the names of fictitious and nonexistent labourers by showing false planation work in the area of 190 hectares, whereas the said work covered the area of only one or two hectare. 4. Learned senior counsel for the petitioner appearing in both the writ applications has submitted that on the request of Investigation Officer, who issued a letter dated 30th January, 2012 addressed to the Additional Secretary, Damodar Valley Corporation, Kolkata, by which he requested for survey at this stage to know the real scenario and further requested that a team comprising of independent officers may be constituted for conducting the detail survey of the afforestation area, in 190 hectares of watershed No.212E1C of Maithon range, Zone-V, DVC Maithon, number of plants in existence, with a further request to submit the result of survey team to his office. On this request, an office order dated 5th July, 2012 was issued by DVC, Kolkata, as the Corporation decided to constitute a team of four persons who will conduct the re-survey of afforestation area of 190 hectares and submit the re-survey report to the Additional Secretary, DVC, Kolkata. This office order was issued with the approval of competent authority. On this request, an office order dated 5th July, 2012 was issued by DVC, Kolkata, as the Corporation decided to constitute a team of four persons who will conduct the re-survey of afforestation area of 190 hectares and submit the re-survey report to the Additional Secretary, DVC, Kolkata. This office order was issued with the approval of competent authority. Learned senior counsel for the writ-petitioner has submitted that without waiting for the re-survey report, the Investigating Agency had submitted charge-sheet as well as a supplementary charge-sheet on 31st March, 2015, although in the matter of other co-accused in R.C.9(A) 2011- R which was registered on the same set of fact relating to afforestation of another area and on consideration of the report of the re-survey committee, final form was submitted, therefore, the act of Investigating Agency is biased against this petitioner and they have submitted the charge-sheet in haste and Investigation authority has adopted different yardstick while dealing with both the cases. He further submitted that the petitioner has also challenged the sanction order in W.P.(Cr.) No.640 of 2015 on the ground that the authorities have also not taken cognizance of the report so it is a failure of justice. He has also submitted that without taking cognizance of the report submitted by the Committee of D.V.C., which was constituted on the request of this investigating agency, granted sanction for prosecution is absolutely without non-application of mind and without nonconsideration of the materials relevant to this case. No doubt was cast on the report of the committee, but basing on the similar report, co-accused was not charge-sheeted and final form was submitted, whereas in the present case, petitioner has been made accused. He also submitted that there was a pressurization by the C.B.I. upon the authority of D.V.C. for grant of prosecution sanction, otherwise the Court could not have proceeded further and cognizance could not have been taken in absence of prosecution sanction. The C.B.I. could procure the sanction of prosecution by order dated 08.10.2012 from the D.V.C. Learned senior counsel also submitted that the court below has taken cognizance on the basis of the charge-sheet and supplementary charge-sheet submitted by the C.B.I., but that is also bad in law because a report of the Committee of the D.V.C. was not placed for consideration of the court below. The court below could not consider the failure of plantation work during the year 2009-10, due to the poor rainfall, poor soil condition and underground fire and as many of the areas were under colliery belt and due to dumping of overburden of plantation. On these grounds, the Committee of the D.V.C. have based his finding but the same was not taken into consideration by the Investigating Officer. 5. Mr. Prasad, learned counsel appearing on behalf of the C.B.I. submitted that C.B.I. is not bound by the report of any in-house Committee and each and every case has its own facts and circumstances and two cases cannot be compared even it is on identical footing. He also submitted that the petitioner has challenged the sanction order, but the same has now been proved during the trial and the petitioner has himself by filing supplementary affidavit in W.P. (Cr.) No. 640 of 2015 has attached the certified copy of the deposition of witnesses no.2 as Annexure-8 to his supplementary affidavit. He further submitted that the court cannot direct the Investigating Agency to investigate in a particular manner. The Investigation Officer has collected sufficient material against this petitioner, who in connivance with other co-accused persons have caused loss to the Corporation and thereby procured gain out of it. He further submitted that since the trial has progressed and these witnesses have already been examined including the Sanctioning Authority who have granted sanction, therefore, the petitioner may raise all these points at the time of trial, as the petitioner has only challenged the supplementary charge-sheet dated 31.03.2015 and grant of sanction order. 6. Replying to the above contention of the counsel for the C.B.I., learned senior counsel for the petitioner has submitted that proper procedure has not been followed while granting prosecution sanction, as there is guidance of Central Vigilance Commission, the manner by which the prosecution sanction could be granted. He further submitted that if the sanction order is held bad by this Court, then the entire case in the court below will vitiated under the provisions of Section 19 of the Prevention of Corruption Act. 7. Learned counsel for the C.B.I. has submitted that in the present case, the cognizance has already been taken by the court below but the same is not under challenge here. 8. 7. Learned counsel for the C.B.I. has submitted that in the present case, the cognizance has already been taken by the court below but the same is not under challenge here. 8. Having considered the submissions on behalf of the parties and on perusal of the papers attached with both the writ applications, it appears that during course of investigation, a request was made by the Inspector of Police, C.B.I. A.C.B., Ranchi through letter dated 30th January, 2012 to the Additional Secretary, D.V.C., Kolkata for a survey to know the real scenario. On his request, by an office order dated 5th July, 2012 constituted a team of Sri P.K. Basu, Director, Soil Conservation Deptt. D.V.C., Hazaribagh-Convenor, Shri D.D. Shit, Agronomist(Jr.) SCD, DVC, Hazaribagh, Shri S.C. Rai, Zonal Officer, Zone-II, SCD, DVC, Hazaribagh and Shri P.K. Ghosh, Surveyor, Gr. I, SCD (Extension Division), DVC, Hazaribagh. It further appears that a report was submitted by the Committee on 02.12.2012 although by office order dated 5th July, 2012 direction was to submit the report latest by August, 2012. It also appears that the charge-sheet was forwarded to the Court of Special Judge, C.B.I., Ranchi on 31st August, 2012 as the report was not submitted by August, 2012. It further appears from certified copy of the deposition of prosecution witness no.2 Rabindra Nath Sen, the then Chairman of Damodar Valley Corporation in the year 2012 and he has proved the prosecution sanction before the Trial Court. It also appears that crossexamination of this witness was made on behalf of this petitioner also. This witness has stated before the court that the documents relating to this case was placed before him by the Chief Vigilance Officer and on his consultation he found prima facie case against this petitioner and the other co-accused and thereafter he granted the sanction for prosecution, which he has signed on its each page. This witness was cross-examined on behalf of this petitioner also, where he has stated that the sanction order was drafted and checked by the Chief Vigilance Officer and based on his recommendation and was signed by him which led to conclusion that there was application of mind at the time of grant of sanction. 9. This witness was cross-examined on behalf of this petitioner also, where he has stated that the sanction order was drafted and checked by the Chief Vigilance Officer and based on his recommendation and was signed by him which led to conclusion that there was application of mind at the time of grant of sanction. 9. Since there is substantial progress of the trial in the court below, therefore, it would be open for the parties to raise the points which are available to them as per provisions of law. The satisfaction of the authority while granting prosecution is the prima facie satisfaction and on that very basis the prosecution sanction is normally granted. Since these matters are before the trial court, therefore, the trial court below will decide all the matters in its legal perspective. 10. In these circumstances both these writ applications are dismissed. The court below will consider the materials and the evidence placed before him independently without being prejudiced by this order.