Punjab-Haryana High Court
Nirmal Singh And Ors. vs State Of Punjab on 11 May, 2001
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. The petition under Section 482 Cr. P.C. seeks the quashing of the FIR No. 55 dated 28.4.2000 under Sections 409/409/420/467/468 IPC registered at Police Station, Nawanshahr and consequential proceedings thereto. At the relevant time, petitioner No. 1 Nirmal Singh and Petitioner No. 2 Gursharan Singh were working as Junior Engineers. Petitioner No. 3 Joginder Singh Mann was working as Sub Divisional Officer in the same Department i.e. Irrigation Department, Punjab, Sub Division, Nawanshahr. On 06.11.1999, two Junior Engineers, namely, Balraj Singh and A.P. Punj, who were working in the same Sub. Division, made an affidavit on the basis of which FIR in question was registered at Police Station, Nawanshahr.
2. It is not disputed that the aforesaid two Junior Engineers were ordered to be transferred out of the Sub Division on 3.11.1999. The FIR states that they have been working Section RD 110000 to 135000 of T.R. Bandh of River Sutluj for the last one year. According to the FIR, the deponent had done the following four works under their supervision which they had completed before 30.6.1999:
(a) Restoring A/Spur at RD 119800
(b) Restoring A/Spur at RD 131200
(c) Restoring A/Spur at RD 120450
(d) Restoring Studs at R.D. 129750 and 131500 of IR Bandh along River Satluj
3. It is stated that the Joginder Singh Mann, Sub Divisional Officer, got the bills in respect of the four works made by Gursharan Singh and Nirmal Singh, Junior Engineers much above the actual costs and prepared bogus estimates. The FIR goes on to narrate that no expenses were incurred on the work at RD 129750 but the Sub Divisional Officer along with the Junior Engineers, mentioned above, has prepared the bills and made the payments to the contractors. The Contractor Society is stated to be belonging to the Sub Divisional Officer-Joginder Singh. It is stated in the FIR that the entire action of the Sub Divisional Officer and the Junior Engineers mentioned in para 3 above, is fraudulent and "with no merit". It is further stated that all wrong acts have been performed by the Sub Divisional Officer in collusion with the Junior Engineers. The deponents refused to make bills above the actual costs. On the refusal of the deponent to work according to the desire of the Sub Divisional Officer, they were threatened to be transferred to some far off place.
4. In the petition it is stated that the deponents Balraj Singh and AP Punj, who were working as Junior Engineers submitted the estimated costs of the four works at Rs. 32 lacs. On the other hand, petitioner Nos. 1 and 2 estimated the costs of damaged work to be Rs. 28.75 lacs. The FIR is stated to be registered mala fide as the two Junior Engineers i.e. Balraj Singh and AP Punj hold the petitioners responsible for their transfers. According to the petition, there is no evidence even, prima facie, of embezzlement. The deponents made some complaints against the petitioners to the higher authorities. A news item captioned as "scam in Drainage Works revealed" was published in "The Tribune" on 24.11.1999. The Chief Engineer Drainage asked for the comments of Superintending Engineer, Jalandhar Drainage Circle. On receiving the comments, the Chief Engineer Drainage wrote to the Principal Secretary to Government Punjab in the Irrigation Department on 30.11.1999. In this letter, he states that the Superintending Engineer, Jalandhar Drainage Circle, Jalandhar, has given his comments on the news item. The office of the Chief Engineer agrees with the same. It is further stated that the Supertending Engineer, Jalandhar, Drainage Circle, Jalandhar has given facts and figures of the works completed and the chronological sequence of important events. The Chief Engineer further writes as follows:
"It is reported that Sh. Balraj Singh JE has not performed his duties properly and on various occasions, he has disobeyed his seniors. Some of the documents enclosed show that he has failed to record any entry in the bin card after 6/98.
The SE Jalandhar Drainage Circle has informed that "he had inspected the site along with Executive Engineer, Phagwara Drainage Division on 27.11.1999 and found that all the works in the said reach are standing intact and they are doing their jobs satisfactorily for which these were constructed. The annealed wire used i.e. of ISI quality with 4mm gauge and satisfactorily holding the boulder stones crates till this day that is 7 months after its construction. Workwise, there is no problem whatsoever and all the works are in excellent shape." (Photographs of completed works are also enclosed).
The allegations of exaggerated or bogus estimates have also been probed into by SE Jalandhar Drainage Circle and it has been reported that no such case has been found and the expenditure incurred on the works is as per physical quantum at site.
Based on the facts given by SE Jalandhar Drainage Circle, it is observed that prima facie there is no case of embezzlement or exaggeration in quantum of work, however, SE, JDC has been instructed to investigate the matter further by associating the complaints with the investigation. Sd/-
Chief Engineer/Drainage Irrigation Works, Punjab Chandigarh"
5. On the directions of the Chief Engineer further enquiry was conducted by the Superintending Engineer, Jalandhar Drainage Circle, Jalandhar. He has given the report (Annexure P-4) dated 29.11.1999. In this report it is stated that the four works were recommended by the District Flood Control Committee after consultation with respective M.L.As. The Deputy Commissioner, Nawanshahr, had strongly recommended to complete these works before 30.06.1999 on an emergent basis. The works were completed and inspected before 30.06.1999. Rest of the report is as under:
"The undersigned inspected the site along with XEN Phagwara on dated 27.11.1999 and found that all the works in the reach are standing intact and they are doing their job satisfactorily for which these works were constructed. The annealed wire used i.e. of ISI quality with 4mm gauge and satisfactorily holding the boulder stone crates till this day that is 7 months after his construction, workwise there is no problem whatsoever and all the works are in excellent shape.
As regards the exaggerated estimate mentioned in news item, it was found during inspection that quantities given in the estimates tally with those existing at site. No case of exaggerated estimate found as such no bogus estimates prepared. The expenditure incurred on the work is as per the quantum of work done. The estimates were prepared by actual official who executed the works as per site conditions and no bogus estimates noticed. The works on the adjoining reaches such as Tajowal and Jhugian were also inspected thoroughly no case of over expenditure noticed and work is satisfactorily executed. Enquiries from the site reveals that Sh. Balraj Singh JE is promoted from Draftsman to J.E. and is not competent to work in the field as J.E. and Sh. A.P. Punj, J.E. (attached) remained suspended for long period and cannot be relied upon.
It was personally verified that workwise all the works are satisfactorily executed/constructed and expenditure workwise no exaggerated estimates over and above the actual costs prepared. Estimates were prepared by the JE who actually executed the work and no bogus estimates prepared by them and made payments. As such the allegation of embezzlement are baseless, far from truth which have been confirmed personally as per facts, figures and data available at site."
6. In the meantime, on the basis of the affidavit given by the deponents, the Chief Engineer Vigilance and Quality Control, Irrigation Department, Punjab, also got an enquiry conducted. In the Interim Report dated 30.11.1999, it is stated that Balraj Singh and A.P. Punj, were deputed on the four works only up to 26.5.1999. Thereafter, the work was redistributed and Balraj Singh was given RD 110000 to 120000, Gurcharan Singh was given RD 120000 to 130000 and Nirmal Singh was given RD 130000 to 150000. A.P. Punj was not allotted any of the four works. In spite of the work not being allotted, the two deponents have falsely claimed to have completed the work. They have sent the progress reports at their own level. False allegations have been made as the Sub Divisional Officer had asked for their explanation on 08.06.1999, for sending reports of works beyond their jurisdiction. The report states as follows:
"The saying of Sh. Balraj Singh, J.E. and Sh. A.P. Punj, J.E. that Sub Divisional Officer has asked them to prepare the bill of these works above the actual expenditure is not correct because the Sub Divisional Officer had called the explanation of Sh. Balraj Singh, J.E. on 8.6.1999 for sending the progress report beyond his jurisdiction. Sh. Balraj Singh, J.E. and Sh. A.P. Punj, J.E., has not received any material of any work on their bin cards. It is evident that the charges levelled by them are the result of after thought. It is also worth mentioning here that the transfer of J.E. from the Sub Divisional Office is not within the purview of the Sub Divisional Officer.
On the basis of record obtained/information obtained from Sub Divisional Officer, Sh. Balraj Singh, J.E. and Sh. A.P. Punj, J.E., made no entries of material of any work on their bin cards in this way it could not be concluded that which work was executed by them at site. It is an interim report being sent to you for information please."
7. Each and every enquiry report has found the petitioners innocent. They have also held that the works, have been concluded satisfactorily. On 7.1.2000. Inspection report regarding the aforesaid works was also sent by Shri R.S. Padda, Superintending Engineer, Amritsar Drainage Circle, Amritsar to Suresh Arora, Deputy Inspector General, Jalandhar Range, Jalandhar Cantt. This officer associated the two complainants in the enquiry. The site inspection was carried out in the presence of the complaints. On each of the works, it has been found that the work has been done satisfactorily. The complaints made by the two complainants were found to be false. Disregarding these reports, the Deputy Inspector General has recommended registration of the FIR dated 28.4.2000. Thus the criminal proceedings are sought to be continued.
8. Mr. Chhibbar, learned counsel for the petitioners has submitted that the estimated costs of repairs given by the petitioners is much less than the estimated costs given by the complainants. Annexure P-7 is the certificate issued by the complaints saying that the work had been completed during the tenure of the complainants. This fact is not disputed by the complainants. He, therefore, submits that the complaint is motivated as the complainants had held the petitioners responsible for their transfers. On the basis of the allegations made, the petitioners were suspended. They were compelled to file a Civil Write Petition No. 11479 of 2000, challenging the order of suspension. The writ petition mentioned above was allowed in liminc. It was observed that the suspension is without any basis as the Chief Engineer has also absolved the petitioners of the charges levelled against them. Four Superior Officers on four separate occasions have exonerated the petitioners, yet, criminal proceedings are continuing. According the learned counsel, this amounts to abuse of the process of the court.
9. Mr. Sran, on the other hand, has vehemently argued that these enquiries are manipulated and managed as the officers belong to the same department. He has submitted that the investigation of the case is at preliminary state and therefore, the FIR cannot be quashed. Learned counsel has further laid stress on the facts that there were other works conducted during the same period. On the basis of the complaint, a preliminary enquiry has been conducted by Shri Suresh Arora, Deputy Inspector General of Police, Jalandhar Range, Jalandhar Cantt After investigation, the Deputy Inspector General of Police has recommended a detailed and thorough investigation regarding all the works executed by the drainage department. Thus, he recommended that a regular Vigilance/Criminal proceedings be initiated in this matter against the petitioners and others.
10. I have considered the various arguments put forward by the learned counsel for the parties.
11. I find much force in the submission made by the learned counsel for the petitioners that continuation of these proceedings would amount to an abuse of the process of the court. Four independent fact finding enquiries have exonerated the petitioners. These are enquiries conducted by experts. The enquiry made by the Chief Engineer, Vigilance and Quality Control has been judicially noticed by a Division Bench of this Court white disposing of Civil Writ Petition No. 11479 of 2000. The petitioners had challenged the order of suspension which was stated to be based on the same allegations. The suspension order was quashed being without any basis. It is observed that the Chief Engineer Vigilance has absolved the petitioners of the charges levelled against them. The order of suspension was quashed. The two complainants were associated in the enquiry conducted by R,S. Padda, the Superintending Engineer, Amritsar Drainage Circle, Amritsar. Even before the aforesaid Superintending Engineer the complainants were unable to substantiate the claims put forward. In the case of P.S. Rajya v. State of Bihar, 1996(3) Recent CR, 261, the Hon'ble Supreme Court has considered a similar situation. The Hon'ble Supreme Court posed the question as follows:
"The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act 1947 notwithstanding the fact that on an identical charge, the appellants was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission." This question was answered in favour of the appellant. It was held as follows:
"At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings."
12. The aforesaid judgment of the Supreme Court has been followed by this Court in the case of Gurnam Singh v. State of Haryana, 1998(1) All India Criminal L.R. 631 by holding as follows:
"Now the point for determination is whether in these circumstances when the employees have already been exonerated on the departmental side and no chargeable evidence has been collected in departmental enquiry and still they are being prosecuted under the charges of corruption, whether in such state, criminal proceedings should be allowed to continue or not. It has been brought to the notice of this court by the learned counsel for the respondent that the findings of the Inquiry Officer have been set aside are not approved by the higher authorities. In P.S. Rajya v. State of Bihar, 1996(3) Recent C.R. 261, the Hon'ble Supreme Court was pleased to lay down that when the officers were proceeded against departmentally and the charges against them in departmental proceedings and the criminal proceedings were one and the same and that the office had exonerated the officer in the departmental proceedings on the basis of Central Vigilance Commission which report was accepted by Union Public Service Commission and thus nothing remained there to proceed against the officer in criminal proceedings. It was further laid down by the Supreme Court that standard of proof required to establish the guilt in criminal case is far higher than the standard of proof required to establish guilt in departmental proceedings. In the present also, when the petitioners No. 1 to 6 had been exonerated at the departmental level and no lighter (higher?) proof is available against them, it cannot be accepted that the prosecution will be able to get conviction on the judicial side where the prosecutions supposed to prove the charge beyond reasonable doubt."
13. The aforesaid observations are fully applicable to the facts and circumstances of the present case. Apart from this, it needs to be noticed that the four works subject matter of the affidavit, were not completed by the complainants. In fact, their explanation was called for sending progress reports beyond their jurisdiction. In each enquiry it has been found that the works have been completed satisfactorily. Four senior officials of the department have held that there is no prima facie evidence of embezzlement. The findings in these enquiries have been rejected by the D.I.G. only on the ground that all the officers belong to the same department. These reports are said to have been procured with the connivance of the petitioners. Except for this bald assertion there is no material on the record to show that four very senior officials have gone out of their way to protect the petitioners for some ulterior motive. R.S. Padda was directed to submit a report as a technical expert. This officer had associated the two complainants in the enquiry. They were unable to substantive the allegations at the time of the site inspection. Even this report of the expect has been ignored without any basis. There is nothing on record, apart from the bald assertions that no reports have been procured in collusion with the other officers. The petitioners having been exonerated in departmental proceedings, it would hardly be plausible that the petitioners could be convicted in a criminal court of law where the standard of proof is beyond reasonable doubt.
14. From the perusal of the facts narrated above, it becomes evident that for a variety of reasons Balraj Singh and A.P. Punj (the deponents) had been nursing a grudge against the petitioners. Therefore, there seems to be substance in the submission made by Mr. Chhibbar that the proceedings have been initiated and continued for oblique motive to wreck vengeance on the petitioners. It is a matter of record that the deponents were ordered to be transferred on 03.11.1999. The affidavits are sworn on 06.11.1999. Earlier to that, Joginder Singh Man, the Sub Divisional Officer had reduced the work of Sh. Bairaj Singh. According to the FIR, Bairaj Singh had been allotted work from R.D. 110000 to 135000. It is however on the record that he was allotted work only from 110000 to 120000. Balraj Singh and A.P. Punj had submitted progress reportes beyond their jurisdiction. Joginder Singh Mann had asked for their explanation. Superintending Engineer, Drainage Circle, Jalandhar and the Chief Engineer, Vigilance had found the work of Bairaj Singh to be not satisfactory. It was also found that he was habitual of disobeying the orders. He had not kept the record on his bin car since June 1998. In both the enquiries it was found that both the Junior Engineers, namely, Bairaj Singh and A.P. Punj are unreliable. A.P. Punj had, in fact, been under suspension for a considerable period of time. Both these officers had been blaming the petitioners for their transfers.
15. In view of the above, this Court is of the view that registration of the case against the petitioners is not bona fide. The proceedings are sought to be continued for oblique motive. In such circumstances, the Court will exercise its inherent power to quash criminal proceedings. This would be necessary to prevent the abuse of Court or to otherwise secure the ends of justice. These principles have been laid down by the Hon'ble Supreme Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., 1991(1) Recent Criminal Reports, 833. After examining the entire law on the subject, the Hon'ble Supreme Court laid down certain guidelines for the exercise of the powers under Section 482 Cr. P.C. by the High Court. Guideline No. 7, which is relevant for the purposes of this case, is reproduced below:
"7. Where a criminal proceedings is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due private and personal grudge."
16. From a perusal of the facts narrated above, it becomes evident that proceedings initiated by Balraj Singh and A.P. Punj are rooted in animosity against the petitioners. These proceedings have not been initiated nor are they being continued in pursuance of any honest zeal to bring the so-called culprits to book. The registration of the FIR has been promoted primarily due to the shortcomings found in the work and conduct of the deponents in the enquiries conducted by four superior officials of the departments. I am of the considered opinion that continuation of these proceedings would amount to abuse of process of court.
17. Consequently, FIR No. 55 dated 28.4.2000 under Sections 409/409/420/467/468 IPC, registered at Police Station, Nawanshahr along with all subsequent proceedings arising therefrom are hereby quashed. No costs.