Jharkhand High Court
Shiv Narayan Sah vs The State Of Jharkhand Through ... on 28 February, 2014
Author: R.R.Prasad
Bench: R.R.Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 903 of 2013
Shiv Narayan Sah........... Petitioner
Versus
State of Jharkhand through Vigilance .......... Opp. Parties
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Coram: Hon'ble Mr. Justice R.R.Prasad
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For the Petitioner : Mr. Anil Kr. Sinha, Sr. Advocate
Mr. Bhanu Kumar, Advocate
For the Vigilance : Mr. Shailesh, Advocate
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12./28.02.2014Heard learned counsel appearing for the petitioner and the learned counsel appearing for the Vigilance.
This revision application is directed against the order dated 20/02/2013, passed in Special Case No. 85 of 2010 (Vigilance P.S. Case No. 68 of 2010), registered under Sections 403, 109, 120B, 406, 409, 467, 468, 471 of the Indian Penal Code and also under Sections 7/13(2) read with Section 13(1)(d)(c) of the Prevention of Corruption Act, whereby and whereunder the prayer for discharge of the petitioner was rejected.
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.
On the basis of preliminary enquiry, FIR was lodged wherein it was alleged that in the meeting of ReflectioncumPlanning held at Ranchi, a decision was taken on the pretext 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, an order was passed by Mr. Arun Kumar, the then Deputy Commissioner, Bokaro upon which the then District Superintendent of EducationcumProject Officer, Sarva Shiksha Abhiyan, Bokaro, deputed 7 teachers for having training at the District Institute of Education and Training (DIET), Ratu, Ranchi, vide its letter dated 05/05/2004. After they received training at DIET, the then Deputy Commissioner deputed them in different blocks for supervising the work of construction of the building of new primary schools and upgraded schools, vide its letter as contained in memo No. 998 dated 01/12/2004. By the said order, Ashok Kumar Bharti was deputed in Gomia block. Subsequently, the then Regional Deputy Director, Education, North Chotanagpur, Hazaribagh vide its letter dated 07/02/2005 entrusted Ashok Kumar Bharti to take up the work of the construction of the building of the schools situated in Chandankiyari block. When the then Minister concerned came to know about the fact that from the teachers of the schools, the 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. However, the then Regional Deputy Director, Hazaribagh, vide its letter dated 17/09/2007 entrusted Ashok Kumar Bharti with the construction work of the building of the schools situated in Petarbar block as well as other blocks and also of the building of Kasturba Gandhi Residential School.
So far the petitioner is concerned, he was posted at Bokaro as Deputy Superintendent of Education from 07/07/2007. After being posted, he vide its letter dated 15/05/2008, directed Mr. Bharti to produce measurement book after reconciliation of the amount of Petarbar block for financial year 200304 to 200708. It has come that the account was supposed to be opened for the said purpose of construction of building in the name of the President and Secretary of the Building Construction Committee, but instead of account of being opened in their name, the account was opened in the name of Secretary of the said Committee as well as in the name of Ashok Kumar Bharti to whom cheque was given.
It be stated here that it is not clear as to whether the cheque was given by this petitioner in the name of Ashok Kumar Bharti or it was in the name of Committee. However, the amount was withdrawn and it has been alleged that 12 percent of the amount withdrawn by Ashok Kumar Bharti was given to this petitioner.
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 up for investigation and after completion of the investigation, when the charge sheet was submitted, cognizance of the offences punishable under Sections 120B, 406, 409, 467, 468, 471 & 109 of the Indian Penal Code and also under Section 7/13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, was taken.
Subsequently, an application was filed under Section 227 of the Code of Criminal Procedure for discharging the petitioner from the case, by taking plea that this petitioner, who, at the relevant point of time, was posted as District Superintendent of Education, had passed an order for adjustment of the amount, which Ashok Kumar Bharti had been entrusted with on 15/05/2008. When nothing was done in this regard, an order was passed on 29/08/2009, for lodging the case against Ashok Kumar Bharti. Not only that it was the petitioner at whose instance certificate case was instituted on 19/01/2010. In spite of that charge sheet has been submitted against the petitioner on the allegation that the cheque was given to Ashok Kumar Bharti instead of cheque being deposited in the account of Samiti/committee opened for the said purpose and also on the ground that this petitioner had received illegal gratification from Ashok Kumar Bharti, which fact has been stated by Ashok Kumar Bharti. But that statement, made by Ashok Kumar Bharti, an accused of the case, while was in police custody, does not have any evidenciary value. However, that application was dismissed vide order dated 20/02/2013. Being aggrieved with that order, this revision application has been filed.
Mr. Sinha, learned senior counsel appearing for the petitioner submits that in spite of the material being there before the Court that this petitioner was the persons, who had directed Adhok Kumar Bharti for reconciliation of the amount, which was taken as an Advance and also at the instance of this petitioner not only a criminal case but also a certificate case was lodged against Ashok Kumar Bharti and no evidence being there that the petitioner was the person, who had given cheque to Ashok Kumar Bharti not in the name of Committee but in the name of Ashok Kumar Bharti, prayer for discharge was rejected after noting the submissions advanced in this regard but without meeting the point, which has been raised on behalf of the petitioner.
It was further submitted that the petitioner is being prosecuted on two incriminating circumstances. One being that the petitioner had given cheque to Ashok Kumar Bharti in his personal name and not in the name of Committee/Samiti and that the petitioner had received illegal gratification from Ashok Kumar Bharti. But the prosecution has failed to produce any material to show that the cheque had been given by this petitioner in the name of Ashok Kumar Bharti. In absence of such material, the allegation, as aforesaid, cannot be substantiated. However, it has also come that the petitioner had received illegal gratification from Ashok Kumar Bharti, which fact has been narrated by Ashok Kumar Bharti while he was in custody and also by some other persons such as the informant, Pushpa Kumari, Jayant Kumar Singh, Md. Shami, Dhaneshwar Ram and Bhuth Nath Manjhi, but all those persons can be said to be hearsay as none of them has claimed that the money was given in presence of them, rather all of them are stating about the illegal gratification being given to this petitioner on the basis of the statement made by Ashok Kumar Bharti and, thereby, the said statements of the persons, named above, will have no evidenciary value and thus there is absolutely no material to put the petitioner on trial.
As against this, Mr. Shailesh, learned counsel appearing for the Vigilance submits that during preliminary enquiry it had come that when Ashok Kumar Bharti was entrusted with the work of the construction of the building of the schools situated at Petarwar blocks as well as other blocks and also the building of Kasturba Gandhi Residential Schools, account was supposed to be opened in the name of the President and Secretary of the Building Construction Committee, but instead of opening the account in the aforesaid name, the account was opened in the name of the Secretary of the said Committee as well as in the name of Ashok Kumar Bharti and the cheque was given to Ashok Kumar Bharti. Further, it has come that the petitioner had received illegal gratification from Ashok Kumar Bharti, which would be evident from the statement made by Ashok Kumar Bharti himself and also by some other persons namely, the informant, Pushpa Kumari, Jayant Kumar Singh, Md. Shami, Dhaneshwar Ram and Bhuth Nath Manjhi and, thereby, the complicity of the petitioner becomes quite evident and, hence, he does not deserve to be discharged.
Upon hearing counsel for the parties, it does appear that the prosecution has come with two incriminating circumstances against the petitioner. One being that the petitioner had given the cheque to Ashok Kumar Bharti and that the petitioner had received illegal gratification from him.
Thus, the question, which does crop up is as to whether there has been any legal evidence in support of the said allegation?
It is the stand of the petitioner that though the allegation has been levelled that this petitioner handed over the cheque, which was in the name of Ashok Kumar Bharti, but that has never been produced nor the cheque appears to be the part of the case diary. According to the case of the petitioner, that cheque had been issued in the name of the Committee. Even if this argument, which is by way of defence, is ignored, it is to be seen as to whether any material is there in the case diary to substantiate the allegation that the cheque was given to Ashok Kumar Bharti. Neither before the Vigilance Judge nor before this Court the said cheque was produced for establishing the allegation.
Further going into the matter, I do find that the statement has been made by said Ashok Kumar Bharti, who is the main accused, while he was in police custody, that he used to give 12 percent of the amount, which he used to withdraw, but that statement will have no evidenciary value. Further it was placed on behalf of the Vigilance that other persons, named above, such as Pushpa Kumari, Jayant Kumar Singh, Md. Shami, Dhaneshwar Ram, Bhuth Nath Manjhi as well as the informant have also stated about giving of illegal gratification to this petitioner but after taking into account of their statements, which were read over to me by the learned counsel for the Vigilance, it appears that all the witnesses are hearsay. They never seem to have stated that they saw giving of illegal gratification, rather they seem to have stated so on the basis of statement made by Ashok Kumar Bharti and in that event whatever statement of those persons is there with respect to giving of illegal gratification, will have no evidenciary value. In such situation, it would not be proper and appropriate to put this petitioner on trial.
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.
In this respect, I may refer to a decision rendered in a case of "Union of India versus Major J.S.Khanna [(1972) 3 SCC 873]" wherein the Hon'ble Supreme Court did opine thereunder:
"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. 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. Mukherje 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."
Further in a case of "State of Maharashtra versus 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. 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 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 material on record, a court could come to the conclusion hat 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."
So far the instant case is concerned, I have already indicated that though the prosecution has come forward with the case that the petitioner had given cheque to Ashok Kumar Bharti in his name and that he had received illegal gratification from him, but there does not appear to be any material to establish those allegations. On the other hand, it has been brought on the record that before the case was lodged, it was the petitioner, who had passed an order for reconciliation of the amount, which has been taken by Ashok Kumar Bharti as an advance. When that was not done, an order was passed by this petitioner on 29/08/2009, for lodgment of the case against Ashok Kumar Bharti and that apart at the instance of this petitioner a certificate case had also been lodged on 19/01/2010, and that it was the petitioner, who, by passing an order on 15/05/2009, had removed Ashok Kumar Bharti from discharging the work of Junior Engineer. Any how, Ashok Kumar Bharti managed to hold the post. But all these circumstances are counter productive of the charge that the petitioner had given cheque to Ashok Kumar Bharti, had received illegal gratification.
Accordingly, I am constrained to hold that no legal evidence is there for putting the petitioner to trial. The learned Vigilance Judge did not consider the matter from this perspective and, hence, he committed illegality in rejecting the application for discharge.
Under the circumstances, the order dated 20/02/2013, under which prayer for discharge of the petitioner from the accusation, has been rejected, is hereby, set aside. Consequently the petitioner is discharged from the case.
In the result, this application stands allowed.
(R.R.Prasad, J) Mukund/cp. 3