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2024 DIGILAW 503 (PNJ)

Daulat Ram Bhaskar v. State of Haryana

2024-02-28

ANOOP CHITKARA

body2024
JUDGMENT Anoop Chitkara, J. FIR No. Dated Police Station Sections 0021 05.09.2023 ACB, Faridabad, District Anti Corruption Bureau, Haryana 120-B, 166, 167, 201, 218, 406, 409, 420 IPC and 13(2), 13(1) (a), 7 of PC Act, 1988 The petitioner, posted as a Chief Engineer in Municipal Corporation, Faridabad, now retired, on the allegations of approving the sanction of funds to the contractor in contravention to the rules and that the work was never carried out, had come up before this Court under Section 438 CrPC seeking anticipatory bail. 2. Vide order dated 09.10.2023, this Court had granted interim anticipatory bail to the petitioner. After that, the matter was argued on several dates, and on 13.12.2023, the matter was reserved. However, while dictating the judgment, this Court wanted some more clarifications, particularly that the petitioner had projected that he was thoroughly honest and fully committed to the job and never took undue advantage; as such, this Court asked him to demonstrate his honesty by filing an affidavit, declaring his assets as well as of his spouse. On 04.01.2024, counsel for the petitioner made a statement that they have voluntarily complied with the same and handed over the affidavit, and they shall not take such declaration as self-incriminatory or violative of Article 20/21 of the Constitution of India or any other fundamental right/law. Even after that, the matter was heard six more times when it was finally reserved. 3. In paragraph 30 of the bail application, the accused declares the following criminal antecedents: Sr. No. FIR No. Date Offences Police Station 1. 13 19.04.2022 - - 2. 21 16.06.2022 - - 3. 11 24.03.2022 - - 4. 23 15.07.2022 - - 4. The State's counsel further contends that given the criminal past; the accused is likely to indulge in crime once released on bail. 5. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 2 SCC 382 , Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc. 6. Considering each bail petition of the accused with a criminal history throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR, the prosecution stands withdrawn or the filed a closure report, cannot be included. Although crime is to be despised and not the criminal, for a recidivist, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles. 7. Petitioner has similar allegations of corruption in all the four FIRs. He was arrested in two FIRs and was granted anticipatory bail in the other two FIRs. Despite that, this Court is not considering the previous history to reject the bail first because the petitioner stands retired and secondly because the incidents are somewhat similar, as such proceeds to decide the bail on merits. 8. Facts of the case are being taken from reply dated 02.11.2023 filed by concerned DySP which reads as follows: - "2. The allegations in brief as contained in the FIR are that the accused persons named in the FIR including the Petitioner by committing the offence of criminal misconduct under PC Act and other offences under the Indian Penal Code as indicated in para I above, awarded a tender to contractor Satbir Singh for installation of 590 iron grills in the divider road from crematorium, Ballabgarh to Tigaon Chowk bye pass by deliberately splitting the work in parts to keep the tender amount below Rs. I crore so as to avoid seeking of approval of the HQ Chandigarh.It is further alleged that such 6 works which were awarded to the contractor Shri. Satbir Singh was of the total value of Rs. 27,52,000/- (447000+ 460000+ 530000+ 440000+ 442000+ 433000) (details of six works) which were given dishonestly and with an ulterior motive of causing wrongful gain to themselves and the contractor were enhanced and revised to Rs. 5,80,47,574/- (9917905+ 9991325+ 9311949+ 9678988+ 9718103+ 9429304) without actually getting any work executed and thus cheated and caused corresponding wrongful loss to the Govt. exchequer." 9. Counsel for the petitioner submits that work is uploaded on the Work Monitoring System along with a photograph whenever work is done. The installation of the iron grill was never uploaded to the Work Monitoring System. To say that grills were installed in 2015 has no corroborative evidence. The Counsel for the petitioner further submits that it is wrong to say that the bills were already affixed in 2015. As such, the present award needed to be corrected. He has referred to details the petitioner had obtained under RTI to this effect, and the copies were supplied to the State. Counsel submits that the Work Monitoring System had all other orders except the grills, which would show that the grills were never installed. The only allegation against the petitioner is that he had written "May release payment," and the petitioner stands retired in September 2022. As such, there was no justification for custodial interrogation or pre-trial incarceration. 10. The petitioner's Counsel reiterates that there was no work of grills in the work of order awarded in 2015 vide work order no. MCF/EE-IV/2015/424 dated 11.09.2015. The allegations are baseless. The petitioner had filed an application under RTI seeking clarification as to whether, in the above work order, the work of installation of the Grill on the central verge and curb stone was also included or not (Annexure A-1). In reply to the said application, the MCF has clarified that the installation of the Grill on the central verge was not mentioned in the said work order, and the said work order was issued for P/L RMC M-40 Grade on the road from Ambedkar Chowk to Bye Pass Road Near Disposal, Sector- 3 at Tigaon Road Ballabgarh (Annexure A-2). In reply to the said application, the MCF has clarified that the installation of the Grill on the central verge was not mentioned in the said work order, and the said work order was issued for P/L RMC M-40 Grade on the road from Ambedkar Chowk to Bye Pass Road Near Disposal, Sector- 3 at Tigaon Road Ballabgarh (Annexure A-2). Not only this, but the bill concerning said work, Order No. MCF/EE-IV/2015/424 dated 11.09.2015 has also been obtained under RTI, which does not even contain any of the items for Grill (Annexure A- 3). 11. The petitioner's Counsel argued that the allegations are that work orders no.1436, 1444, 1445, 1447, 1449, and 1456 dated 27.11.2018 were never issued. The allegations are baseless. Specific Numbers of work orders are recorded in the WMS (Work Monitoring System), an online system to monitor work progress (WMS annexed as Annexure A-4 to A-9). The online record has much more veracity than the manual record. Further allegations are that MCF Split the work into six parts to keep the tender amount less than Rs. One Crore, so there was no need to seek approval from HQ Chandigarh. 12. The petitioner's Counsel submitted that further, it has been alleged that all six work orders were revised later, and the total amount of work orders, initially for Rs. 27,52,000/-, was revised to Rs. 5,80,47,574/-. It is relevant to state that as per the Work Monitoring System (WMS), which is an online system, the sanction of the works has been granted on 16.09.2018, 05.09.2018, 04.09.2018, 06.09.2018, 09.09.2018 and the said dates, the petitioner was not having the charge of Chief Engineer in MCF as he was relieved on 30.07.2018. (Relieving order is Annexure A-10) The petitioner was given the charge again on 26.10.2018 (Rejoining order is Annexure A-11). Hence, the petitioner cannot be held liable for any alleged splitting of work orders. Counsel for the petitioner further submits that the allegations are that the petitioner had marked "release of payment" on the noting sheet of Work Order No.1449, and it has been alleged that the petitioner has given undue advantage to the accused contractor and taken for himself by enhancing the amount of Rs. 97,00,000/- without any work being done. The noting sheet before the petitioner contained the verification that bills had been duly verified by the concerned executive engineer and passed by the accounts and audit department. 97,00,000/- without any work being done. The noting sheet before the petitioner contained the verification that bills had been duly verified by the concerned executive engineer and passed by the accounts and audit department. (Noting sheet-Annexure A-12). 13. The petitioner's Counsel states that the concerned Executive Engineer must verify the work on the site, so that when the noting for the release of payment was forwarded to the petitioner, the said noting contained a certification that the bills have been duly verified by the concerned Executive Engineer and passed by the concerned Accounts and Audit Department. (The office order issued by the Commissioner regarding allocating Roles and Responsibilities is annexed as Annexure A-13). Hence, the petitioner cannot be held responsible in any manner. 14. On the contrary, State counsel submits that the tenders were initially of smaller amounts, well below the limit of 1 Crore. Later, the accused enhanced the amount of the tender to around Rs. Ninety-nine lacs were kept below Rs. 1 crore, and the money has been released, which has caused a loss to the exchequer. 15. The State counsel has opposed the bail by referring to paras no.6 and 8 of the reply which reads as under: - "6. That as regards the averments in para 6 concerning the case under investigation are concerned, it is submitted that the same are false and mis-leading. It has come out during investigation that the that the accused persons named in the FIR including the petitioner entered into a criminal conspiracy among themselves and with the contractor to commit the offence of criminal misconduct and other offences under the Indian Penal Code and awarded a tender to contractor Satbir Singh for installation of 590 iron grills in the divider road from crematorium, Ballabgarh to Tigaon chowk bye pass by deliberately splitting the work in parts to keep the tender amount below Rs. 1 crore so as to avoid seeking of approval of the HQ Chandigarh. It is further alleged that such 6 works which were awarded to the contractor was of the total value of Rs. 27,52,000 (447000+460000+530000+440000+442000+433000) (details of six works) which was done dishonestly and with an ulterior motive of causing wrongful gain to themselves and the contractor and subsequently such tenders were revised and enhanced to Rs. It is further alleged that such 6 works which were awarded to the contractor was of the total value of Rs. 27,52,000 (447000+460000+530000+440000+442000+433000) (details of six works) which was done dishonestly and with an ulterior motive of causing wrongful gain to themselves and the contractor and subsequently such tenders were revised and enhanced to Rs. 5,80,47,574 (9917905+ 9991325+ 9311949+ 9678988+ 9718103+ 9429304) without actually getting any work executed and thus cheated and caused corresponding wrongful loss to the Govt. exchequer. Besides, the Petitioner knowing fully well that the contractor has not executed the work justifying the amount of revision / enhancement in each case, falsely certified the completion of such work and also recommended to release the payment to the contractor. The extent of blatantness in recommending the payment of the enhanced amount to the contractor by the Petitioner can be seen from the very fact that the photographs of the works attached with the bills generated through Work Management System are that of "Inter-Locking Tiles and RMC Roads" whereas the work that was awarded to the contractor was that of " Fixing of grills". 7. That as regards the averments in para 7 are concerned, the same are false and mis-leading. The Enquiry officer, during the course of enquiry, had issued a notice for the attendance of the Petitioner, but the Petitioner deliberately avoided joining such enquiry. Besides, the Hon'ble Supreme Court in Lalita Kumari v. Govt. of UP and others has clearly held that the scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received, but only to ascertain whether the information reveals any cognizable offence." 8. That so far as the averments in para 8 are concerned, it is submitted that while the total value of the six works awarded to the contractor was only Rs. 27,52,000/-only, which did not require any approval of the Head Quarter, but the criminal conspiracy was entered at the initial stages itself among the accused persons to revise and enhance each of such six works to a value under Rs. 1 crore (collective amount of final work purported to have been executed by the contractor in respect of six works is of the order of Rs. 5.80 crores) which is 21 times the original value. 1 crore (collective amount of final work purported to have been executed by the contractor in respect of six works is of the order of Rs. 5.80 crores) which is 21 times the original value. The modus operandi adopted was to issue tenders of small value by splitting the work and subsequently revise and enhance the same to the desired extent at their own level by circumventing the situation and cause wrongful pecuniary gain to themselves / contractor and corresponding loss to the Govt." 16. The State's counsel has referred to paras no.13 to 20 of the reply, which reads as follows: - "13. That with respect to the averments raised in para no.13 and the investigation conducted and the documents that have been seized clearly reveal that the Petitioner had played an important role in the release of payment to the Work Orders in question. Copy of the work order no. 1449 for an estimated amount of Rs. 4,47,000/- which was enhanced to Rs. 9718103/- and approval for release of payment by the Petitioner is enclosed as Annexure R-III. So, it is clear that the Petitioner has caused undue advantage to the accused contractor by enhancing the amount to Rs. 97 Lakhs without any work being done. With respect to the averment that the then Commissioner Smt. Anita Yadav, who is also an accused in this case had issued directions to route all files through the Petitioner, it is submitted that the Petitioner had knowingly NO approved for release of payment after enhancing the work amount to Rs. 97 Lakhs from the estimated amount when he knew that no work has been done and it was not a routine order on his part. 14,15 & 20. That as regards the averments in paras 14, 15 and 20 are concerned, it is submitted that the same are false and misleading. It has come out during investigation that the accused persons named in the FIR including the Petitioner entered into a criminal conspiracy among themselves and with the contractor to commit the offence of Criminal Misconduct and other offences under the Indian Penal Code and awarded a tender to contractor Satbir Singh for installation of 590 iron grills in the divider road from crematorium, Ballabgarh to Tigaon chowk bye pass by deliberately splitting the work in parts to keep the tender amount below Rs. 1 crore so as to avoid seeking of approval of the HQ Chandigarh. It is further alleged that such 6 works which were awarded to the contractor was of the total value of Rs. 27,52,000/- (447000+ 460000+ 530000+ 440000+ 442000+ 433000) (details of six works) which was done dishonestly and with an ulterior motive of causing wrongful gain to themselves and the contractor and subsequently such tenders were revised and enhanced Rs. 5,80,47,574 (9917905+ 9991325+ 9311949+ 9678988+ 9718103+ 9429304) without actually getting any work executed and thus cheated and caused corresponding wrongful loss to the Govt. exchequer. Besides, the petitioner knowing fully well that the contractor has not executed the work justifying the amount of revision / enhancement in each case, falsely certified the completion of such work and also recommended the release of the payment to the contractor. The extent of blatantness in recommending the payment of the enhanced amount to the contractor by the petitioner can be seen from the very fact that the photographs of the works attached with the bills generated through NO Work Management System are that of "Inter-Locking Tiles and RMC Roads" whereas the work that was awarded to the contractor was that of Fixing of grills". 16. That in so far as the issues raised in para 16 are concerned it is submitted that the allegation of the prosecution to the effect that work order No. MCF/EE/IV/2015/424 dated 11/09/2015 also included fixing of grill work in Tigaon Road is based on the confirmation letter issued by the Executive Engineer, Division-IV, during the course of the Enquiry. The correctness or otherwise of such claim by the XEN of the concerned Division will be thoroughly investigated. A copy of the letter No. MCF/EE-IV/2022/86 dated 21/01/2022 of the XEN, Division-IV, collected during enquiry is enclosed as Annexure-R-IV. 17. That with respect to the averments raised in para no. 17 that the allegations in FIR are as per PWD Code 9.3.10 and Section 8 of the Municipal Work Rules the estimate cannot be revised beyond 10% and if so, a fresh tender needs to be floated, it is submitted that the FIR simply states that while releasing the payment to the Contractor provisions of PWD Code 9.3.10, 10.15.1 and Section 8 of the Municipal Work Rules were not complied with. So, meaning thereby these provisions have to be adhered to while releasing the payment.It is a matter of record that administrative approval has been obtained from the then Commissioner, MCF Smt. Anita Yadav who is also an accused in the case &involved in the conspiracy for causing loss to the Govt. Exchequer and undue benefit to the Contractor to the tune of Rs. 5 Crores without any work being done which attract provisions of the sections Ne of law mentioned in the FIR against the accused persons. 18. That in so far as the averments in para 18 are concerned, it is submitted that the Petitioner is mis-leading this Hon'ble Court. The Petitioner by his own admission states that the photographs attached to WMS are that of the work relating to interlocking tiles which falls under the sub-category. It is not out of place to mention that there are no photographs of the main work and the only photographs that are available on record is that of subcategory work. It is important to note from the WMS sheet that while the date of work orders pertaining the six works is 27/11/2018 the date of commencement of the work is 09/04/2018. 19. That the averments in para 19 to the extent of grant of anticipatory bail to the petitioner in case FIR No. 11/2022 is a matter of record. 20, 21& 24. That as regards the averments in paras 20,21,and 24 are concerned, it is submitted that the arrest and sustained custodial interrogation of the petitioner accused is essential to unearth the larger conspiracy involved in the systemic siphoning out the funds of the Govt. in collusion with other co-accused persons and causing wrongful loss to the tune of crores of rupees to the Govt. exchequer in the instant case and to take the investigation to a logical conclusion. Ld. Court of Addl. Sessions Judge while considering and rejecting the anticipatory bail application of the petitioner has also come to the conclusion that the arrest and custodial interrogation of the petitioner is, therefore, certainly required to unearth the larger conspiracy / whole crime." 17. An analysis of the petition, response and arguments addressed by the parties would lead to the following outcome. 18. In a nutshell, the allegations are not only that the contract was kept below Rs. An analysis of the petition, response and arguments addressed by the parties would lead to the following outcome. 18. In a nutshell, the allegations are not only that the contract was kept below Rs. 1 crore but also that the work awarded to the contractor was for fixing grills, whereas the bills were generated for interlocking tiles and RMC roads. The prosecution case is that the petitioner remained posted as Chief Engineer from 25.04.2017 to 21.01.2020. As per the prosecution, the amount could have been enhanced with his approval, as was done by keeping every tender below Rs. 1 crore to avoid approval from the headquarters. The allegations are that the contractor Satbir Singh got a tender to install 590 iron grills in the divider road, and the petitioner deliberately split it to keep it below Rs. 1 crore to avoid approval of Headquarters at Chandigarh. Thus, small tenders were awarded, which were later increased to less than Rs one crore. 19. The petitioner's case remains un-rebutted that in RTI reply, Annexure A-2, Municipal Corporation had clarified that the installation of grills on the central verge is not mentioned in the work order issued in 2015, and the said work order was issued for P/L RMC M-40 Grade on the road from Ambedkar Chowk to Bye Pass Road Near Disposal, Sector-3 at Tigaon Road Ballabgarh. Further, the bill obtained under RTI, the above-captioned work Annexure A-3, does not prima facie contain any item of the grill. Regarding the splitting of work below Rs. 1 crore, it cannot be believed that the higher authorities were unaware of the splitting of work and kept ignoring them. Thus, again, such splitting of work to keep it below Rs. 1 crore points towards malice intent, and that may be deemed sufficient if the petitioner had come to seek quashing of FIR, but the present petition is not for quashing of FIR but for bail where the parameters are different altogether. Thus, no purpose would be achieved for custodial interrogation in this regard when the documentary evidence points out that a large number of officers were hand in glove to keep the tender below Rs. 1 crore to help the contractor and coupled with the fact that it is impossible that higher officers were unaware of the splitting of the work. Thus, no purpose would be achieved for custodial interrogation in this regard when the documentary evidence points out that a large number of officers were hand in glove to keep the tender below Rs. 1 crore to help the contractor and coupled with the fact that it is impossible that higher officers were unaware of the splitting of the work. Considering the response from RTI, it is neither a case for custodial interrogation nor for any pre-trial incarceration. 20. The petitioner has already voluntarily declared all his assets and the loss can be recovered from the petitioner. 21. Given the nature of allegations, custodial interrogation is not required. An analysis of the allegations and evidence collected entitles the grant of bail to the petitioner. 22. Any observation made hereinabove is neither an expression of opinion on the case's merits, neither the court taking up regular bail nor the trial Court shall advert to these comments. Petition allowed . Interim orders made absolute, subject to the compliance. All pending applications, if any, also stand disposed.