Madhya Pradesh High Court
Dr. S.K. Singh vs The State Of Madhya Pradesh on 15 March, 2016
Author: S. K. Palo
Bench: S. K. Palo
CRR-2032-2015
(DR. S.K. SINGH Vs THE STATE OF MADHYA PRADESH)
15-03-2016
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Cr.R. No.2032/2015
Dr. S. K. Singh
Vs.
The State of M.P. & Others
Present: HonâÂÂble Shri Rajendra Menon, J. &
Hon'ble Shri S. K. Palo, J.
__________________________________________________
Shri Anil Khare, learned Senior Counsel with Smt. Namrata
Agrawal, for the petitioner.
Shri S. K. Kashyap, learned counsel for the respondent
Economic Offences Wing, Investigation Bureau, Bhopal
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ORDER
(15 -3-2016 ) In this revision petition filed by the petitioners under Section 397/ 401 of the Code of Criminal Procedure, challenge is made to an order dated 13.7.2015 passed by the Special Judge, Prevention of Corruption Act, Bhopal in Special Case No.2/2013 whereby charges for offences under Section 420, 467, 468, 471, 120B of IPC read with Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act has been framed. The allegations against the petitioners pertain to illegality said to have been committed in allotting certain work for printing of question papers, OMR sheets etc. between 30 th August 2009 to 23 rd July 2011 valued at Rs.56,87,245/- to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow.
2. Facts in brief indicate that petitioner No.1 is the Ex-Vice Chancellor of M.P. Bhoj (Open) University, Bhopal. Petitioner No.2 Dr. G. D. Singh was the then Director, Admission and Evaluation, of the same University and at present is Principal, Government Chandrashekhar PG College, Sehore, M.P. Petitioner No.3 Shri Avinash Ta;egapmlar was the then Finance Officer of M.P. Bhoj University, Bhopal since retired from the post of Joint Director, Department of Finance, Government of M.P.. Petitioner No.4 Shri A. H. Khan was posted as Section Officer in the University at the relevant time and petitioner No.5 Shri Ajay Mishra is a Director in M/s Infolink Consultancy Services Pvt. Ltd., Lucknow. Vide Annexure P/1 dated 13.7.2015, the impugned order, various charges have been framed against the petitioners. In sum and substance, the allegations are that in the year 2008-09, 2009-2010, 2010-2011 and 2011-12, the petitioners No.1 to 4 together with criminal intend and with common intention hatched a conspiracy to help petitioner No.5 Director, M/s Infolink Consultancy Services Pvt. Ltd., Lucknow. It is alleged that for purpose of printing of question papers, OMR sheets and preparation of examination results, in an illegal manner and contrary to rules, the work was allotted to the Company in question i.e. M/s Infolink Consultancy Services Pvt. Ltd., and payments were also made in illegal manner, with an intention to confer unlawful gain to petitioner No.5, it is said that in allotting the work various irregularities were committed like, non deduction of VAT Tax etc. On 18.6.2010 a complaint was received by the Director General of Economic Offences Investigation Bureau (herein after referred to as âÂÂEOWâÂÂ), the aforesaid complaint was made by one Shri Kapildeo Mishra, who claimed to be a Professor in the Chitrakut Vishwavidhyalaya, U.P.. The complaint was also signed by various other persons whose names are detailed in the complaint and referred to by the petitioners in para 2 of the petition. The complaint was primarily made against the petitioner No.1 who at the relevant time was functioning as the Vice Chancellor of M.P. Bhoj (Open) University, Bhopal and the main allegation in the complaint was with regard to allotting the work of printing of Question papers, OMR sheets etc. to the firm in question without inviting proper tender and quotations or not following the due process for allocation of work. The complaint was registered as Complaint No.281/2010 on 22.6.2010. The Bhopal Unit of EOW conducted the enquiry, therefore, charge sheet in question has been filed and as indicated herein above the charges pertain to printing of question papers for the academic years 2008-09, 2009-2010, 2010-2011 and 2011-2012. It is alleged in the charge sheet that M/s S.B. Agrawal a firm situated in Agra was assigned the work of printing of question papers of B.Ed Special Course in the year 2008-09 but this firm refused to accept the work on the same rate for the session in question. As the approved Printer M/s S. B. Agrawal has refused to undertake the printing work, the work was to be assigned to another Printer. It is said that M/s S.B. Agrawal was carrying out the printing work prior to the petitioner No.1's joining the University in question. However, when the predessor of petitioner No.1 one Shri Kamlakar Singh was the Vice Chancellor of the University, M/s S.B. Agrawal made a proposal for enhancement of the rate of printing by 40%. It is an admitted position that the then Vice Chancellor Shri Kamlakar Singh approved enhancement of the printing rate to the extent of 20%. However, after the tenure of Shri Kamlakar Singh as Vice Chancellor was over, the petitioner No.1 took over charge of the Vice Chancellor on 21.4.2009 and it is alleged that on 16.6.2009 petitioner No.2 as Director prepared a note-sheet and made a mention about the enhanced rate of 20% to be paid to M/s S.B. Agrawal, Agra and acceptance of the same. However, when the aforesaid note-sheet came to the petitioner No.1 for approval, he refused to accept the enhancement of 20% and directed as mentioned by petitioner No.2 Shri G. D.Singh in the note- sheet that the work should be given to such a firm which is prepared to do the work in the same rate as was being paid to M/s S. B. Agrawal. In the note-sheet reference is made to three firms namely, M/s Vani Printing Press, Lucknow, M/s Infolink Consultancy Services Pvt. Ltd., Lucknow and International Business Firms, New Delhi. On the basis of this note sheet dated 16.6.2009 written by petitioner No.2 Dr. G. D. Singh and approved by petitioner No.1 Dr. S. K. Singh, letters were written to all the three firms and their quotations received on 26.6.2009. Thereafter, a Confidential Committee was constituted consisting of Dr. G. D. Singh, Smt. Abha Swaroop and Shri A. Z. Khan, who prepared a comparative statement and the work is said to have been allotted to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow. It is alleged in the charge sheet that this allotment of work is contrary to the requirement of statute No.7 of the University which specifically provides for constitution of Finance Committee consisting of Vice Chancellor as Chairman, the Principal Secretary, Higher Education or his nominee as Member, Principal Secretary, Finance or his nominee as Member, Commissioner, Higher Education or his nominee as Member and Registrar of the University as a Member.
3. It is the case in the charge sheet that without constituting the Finance Committee as required under Statute 7, the work in question was allotted to petitioner No.5 M/s Infolink Consultancy Services Pvt. Ltd., Lucknow and letters have been got issued on 18.7.2009 to three firms namely, M/s Trans Global Softech Solution, Allahabad, M/s Vani Printing Press, Lucknow and M/s Infolink Consultancy Services Pvt. Ltd., Lucknow, by which tenders were invited. The charge sheet further goes to show that quotations were received from these three firms on 22.7.2009 and even though no such letter was issued on the said date but showing it is shown as issued on 18.7.2009, some manipulation has been done. As per report of Cyber Cell, it is said that in fraudulent manner, the date in the letter is changed. On the basis of material collected, allegations in the charge sheet were leveled to say that all the petitioners i.e. 1 to 4 by misusing their office were instrumental in allotment of work of printing of question papers to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow and therefore, offence is said to have been committed. Similar allegations are made with regard to printing of OMR sheets, in the matter of allotting the work of preparation of results and printing of Degrees. Finally, after stipulating that in an illegal manner the work has been allotted to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow. The allegation is that the work was allotted to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow, contrary to the rules and payment of Rs.56,87,243/- made to the said firm between the period 3.8.2009 to 23.7.2011.
4. Accordingly, as per the charge-sheet, for four works â namely printing of question papers; printing of OMR Sheets and question booklet; preparation of result; and, printing of Degrees, as the rules have been violated and in an illegal manner work is given to a Firm in Lucknow and by saying that petitioner No.1 also belongs to Lucknow and therefore, he hatched the conspiracy to give undue favour to a Firm in Lucknow, prosecution is launched.
5. Shri Anil Khare, learned Senior Advocate, took us in detail through the elaborate charge-sheet filed; the allegations levelled against the petitioners and argued that petitioner No.1 is not a resident of Lucknow, he is a resident of New Delhi and was only posted in Lucknow, for a period of four years while he was working there between certain period, when he was Professor of Law in Lucknow University, Lucknow. Be it as it may be, it is the case of the petitioners that with regard to the same allegations and with regard to the same set of circumstances initially when a complaint was made to the Chancellor of the University, a Enquiry Committee was constituted and a Former Judge of this Court â HonâÂÂble Shri Justice (Retd.) S.S. Dwivedi was appointed as a one man Enquiry Commission. The Justice Dwivedi Enquiry Committee submitted its report vide Annexure 1, and in the report found that the allegations made in the complaint are false. It was found in the inquiry that no such illegality as alleged is made out. It is the case of the petitioners that earlier M/s S.B. Agrawal from Agra was doing the same work and when this Firm sought escalation of price by 40% - Shri Kamlakar Singh, predecessor to the petitioners, allowed the escalation to the extent of 20%. But, when petitioner No.1 took over, he refused to permit the escalation and ordered for conduct of the work at the same rate as was done by M/s S.B. Agrawal. Learned Senior Advocate took us through the note-sheets prepared wherein the names of certain Firms undertaking similar work are indicated; quotations called for; issuance of notice in various newspapers in Lucknow, New Delhi, Bhopal; quotations received and the fact that work was allotted at the same rate to M/s Infolink Consultancy Services Private Limited, whose rate was the lowest. Publication in various newspapers like Dainik Bhaskar, Dainik Jagran, Times of India and Patrika available on record are referred to say that notice inviting tenders were received from M/s Kumar Handmade Paper Jalon; Sindhu Offset, Satna; Offset Printing House, Satna; and, Security Printers, Satna. Letters were also received from Three Government Printers â Shashkiya Mudranalaya; Madhya Pradesh Madhyam; and, Madhya Pradesh Granth Academy. Rates received from 7 Printers are indicated and finally the minimum rate of 18.50 was approved and work was allotted to the said firm.
6. Shri Anil Khare, learned Senior Advocate, took us through various aspects of the matter; the report submitted by the Justice Dwivedi Committee; the findings recorded by the said Committee to say that there is no financial loss to the University or undue gain to any of the petitioners, and argued that at best in the matter of allotment of the work in question, the petitioners may have committed breach of Statute No.7 in the matter of Constitution of the Committee. For this petitioner No.1 may be proceeded departmentally, but in the absence of any criminality or criminal intention being made out, criminal offence according to the learned Senior Advocate are not made out.
7. Learned Senior Advocate also invited our attention to communication dated 18.4.2012, 8.4.2013 and 5.10.2012 â Annexures 2, 3 and 4, received from the office of Lokayukta Organization, MP to show that the Lokayukta finding no criminal intent or criminal offence made out, closed the matter. Learned Senior Advocate argued that by allotting the work to M/s Infolink Consultancy Services Private Limited infact the University gained in as much as the work for the years in question were conducted at a rate lesser than the one it was conducted in the previous years and even though the previous Vice Chancellor had made a recommendation for 20% escalation of the rate, dis-approving the same, at a lesser rate the work has been allotted as a consequence thereof, the University gained in the matter. It is argued by learned Senior Advocate that once it is established that the University has gained financially because of the work allotted by the petitioner, no case for prosecution is made out and as without taking note of all these factors the petitioner has been charged, it is alleged that the application be allowed and the charges quashed.
8. Shri Anil Khare, learned Senior Advocate, argued that the total work done by petitioner No.5 as per the contract, was for an amount of Rs.82 Lacs out of which only a sum of Rs.56,87,243/- has been paid and once the work was got done at a rate less than the one proposed by the earlier Vice Chancellor, instead of appreciating the work of the petitioners, they are being prosecuted. Learned Senior Advocate took pains in taking us through the detailed report submitted by the Justice Dwivedi Committee; the findings of the Lokayukta Organization; the allegations made in the bulky charge-sheet filed, and argued that except for contending that the work in question has been granted to M/s Infolink Consultancy Services Private Limited in an illegal manner, there is not a single piece evidence or allegation anywhere in the charge-sheet to say as to how and in what manner financial loss has been caused to the University or financial gain is made by any of the petitioners or M/s Infolink Consultancy Services Private Limited in allotment of the work in question. On the contrary, it is a case where the University has gained by getting the work done at lower rate.
9. Shri Anil Khare, learned Senior Advocate, argued that except for making allegations that the Firm in Lucknow was selected for grant of work and the procedural formalities as contemplated under Statute 7 â for constitution of the Committee, is not followed, there is no allegation as to how and in what manner the criminal intent or any criminal offence is made out in getting the work done, No evidence to show any link between the petitioners and M/s Infolink Consultancy Services Private Limited is available; no bank account of any of the petitioners have been seized to show that they have made substantial financial gains because of the work or issue in question; the financial account of the Company is also not seized or produced to show as to how they gained from the work and except for contending that favour has been done to a Firm in Lucknow, the charge-sheet nowhere indicates any evidence or material to show as to what is the criminality or criminal intent in the entire dealing.
10. Even in the matter of allegations made with regard to non-payment of VAT, learned Senior Advocate refers to the document available on record at Page 205 onwards, to show payment of VAT for the entire transaction to the Commercial Tax Department, Government of Uttar Pradesh by petitioner No.5/Firm. Learned Senior Advocate invites our attention to a judgment of the Supreme Court in the case of Union of India Vs. Major J.S. Khanna, ETC [(1972) 3 SCC 873], to say that in the absence of there being any material even to make out a prima facie case, mere irregularity or breach of some procedural aspect of the matter in allotting the work of printing cannot be a ground for prosecution of the petitioners. Learned Senior Counsel emphasized that in this case no malafide, criminal intent or intention is made out for prosecuting the petitioners and, therefore, the allegations levelled are unsustainable.
11. Shri Anil Khare, learned Senior Advocate, also referred to the principle of law laid down by the Supreme Court in the cases of Sanjay Singh Ramarao Chavan Vs. Dattatray Gulabrao Phalke, (2015) 3 SCC 13; State of Bihar Vs. P.P. Sharma, (1992) 1 SCC 222; V. Venkata Subbarao Vs. State of AP, AIR 2007 SC 4789; T. Subramanian Vs. The State of Tamil Nadu, 2006 CrPJ 804; and, P. Vijayan Vs. State of Kerala (2010) 2 Crimes 1 SC, and argued that in this case if the entire allegations as made in the charge- sheet is scanned, there is no iota of evidence to hold the petitioners guilty of the charges levelled against them, therefore, in prosecuting the petitioners an error has been committed, which should be interfered with. Learned Senior Advocate relied upon a judgment of the Supreme Court in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others, 2014 AIR SCW 942, to say that the Court cannot act as a mouth piece of the prosecution with regard to the allegations made and if the evidence or the material available does not disclose commission of any offence the accused have to be discharged at this stage itself. Reliance is also placed on a judgment of the Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460 in support of the aforesaid contention.
12. On the contrary, Shri S.K. Kashyap, Advocate for the Prosecution took us through the material available on record, the allegations made in the charge-sheet and argued that in this case there are serious allegations against the petitioners in as much in breach of the procedural formalities laid down in Statute No.7; petitioner No.1 illegally constituted a Committee to favour the Firm - M/s Infolink Consultancy Services Private Limited; the work has been allotted bypassing the entire statutory procedure. Once the statutory procedure is bypassed and work to the tune of Rs.56,87,243/- is allotted to a Firm in such an illegal manner without referring the matter to the 6 Member Statutory Committee, prosecution of the petitioner is said to be proper. Shri Kashyap, learned counsel for the respondent, took us through the allegations levelled in the charge-sheet and indicated that at this stage while exercising its limited jurisdiction in a petition for revision under sections 397/401 of the Code of Criminal Procedure, interference into the matter should not be made. Appreciation of evidence and evaluation of the defence of the petitioners are not permissible at this stage and as only the charges have been framed, learned counsel emphasized that no case is made out for interference at this stage. Learned counsel took us through the agreement entered on behalf of petitioner and the Firm and argued that it is an illegal agreement and, therefore, prosecution of the petitioner is proper and at this stage no interference should be made.
13. Shri S.K. Kashyap, learned counsel for the respondent, referred to certain aspects of the report submitted by Justice Dwivedi Committee and tried to indicate that the manner in which the work was allotted to a Firm in Lucknow without following the due procedure contemplated itself casts doubt on the conduct of the petitioner and for this if they are being prosecuted, at this stage interference cannot be made into the matter. Learned counsel also referred to paragraph 18 of the report submitted by Justice Dwivedi Committee, to say that while exonerating the petitioner, Justice Dwivedi relied upon the statement of two witnesses Dr. Aabha Swaroop PW/2 and Shri Ajay Mishra PW/10, who are co-conspirators with the petitioner and, therefore, report of Justice Dwivedi Committee is not proper.
14. Shri S.K. Kashyap, learned counsel for the respondent, argued that in this case even though the Justice Dwivedi Committee and the Lokayukta Organization have exonerated the petitioners, but in a detailed inquiry conducted by the Economic Offences Wing, as the allegations are prima facie found to be correct, it is said that in framing the charges the learned Court below has not committed any error warranting reconsideration. Learned counsel referred to the charge- sheet in detail; the concept of law governing interference at this stage, and emphasized that by evaluating the evidence and material available on record, interference into the matter at this stage is not called for. Accordingly, learned counsel prays for dismissal of the revision petition.
15. We have gone through the entire material available and have perused the records.
16. We find that the petitioner joined the University in question on 21.4.2009. It is also seen from the records that earlier the work in question was being done by M/s S.B. Agrawal, a Firm situated in Agra, just before April 2009, M/s S.B. Agrawal made a proposal for enhancement/escalation of the rate for printing and other work to the extent of 40% over the prevailing rates. The matter was placed before the then Vice Chancellor â Shri Kamlakar Singh, who on this proposal gave his consent for enhancement of the printing rate to the extent of 20%. However, when the petitioner Dr. S. K. Singh took charge on 21.4.2009, petitioner No.2 Dr. G.D. Singh, who was Director, Admission and Evaluation in the University, prepared a Notesheet and mentioned about the approval for printing by M/s S.B. Agrawal at the enhanced rate of 20%. However, the petitioner as Vice Chancellor disapproved the enhancement and directed for allotment of the work to be given to such Firms who are willing to do the work at the existing rates. He also suggested names of certain printers who are Experts in the field of printing of answer-sheets, question papers and OMR Sheets and based on the same, names of three Firms were indicated in the Note-sheet and thereafter records indicate that certain advertisement were also issued in the Newspapers; quotations were called for; three Firms were shortlisted; and, the minimum submitted by M/s Infolink Consultancy Services Private Limited was approved by a Committee. Admittedly the Committee which approved the allotment of the work was not the Committee as is required under Statute 7 i.e⦠the Statutory Finance Committee. It is an admitted position that the work has been got done on the basis of an approval prepared by a Committee consisting of petitioner Nos. 2, 3 and 4.
17. Available in the charge sheet are letters written to various companies like M/s Trans Global, Allahabad, M/s Vani Printing Press, Lucknow and M/s Infolink, Lucknow. Comparative charges prepared, notices of the tender issued in various Newspapers like Dainik Bhaskar, Dainik Jagran, Patrika, Times of India etc. Offers received from Kumar Handmade Paper, Jalon, Sindu Offset, Satna, Offset Printing House, Satna and Security Printers, Satna. Offers were also received from three Government Printers like Shaskiya Mudranalaya, M.P. Madhyam and M.P. Granth Academy. All these materials are available in the voluminous charge sheet produced and we find that lowest rate of Rs.18.50 which was approved and for the work done the sum of Rs.56,87,243/- was paid to the petitioner No.5's firm. However, on scrutiny of the charge sheet we find that serious allegations are made to say that petitioner No.1 was instrumental in ensuring that the work is allotted to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow and he got the work allotted to the said firm in an illegal manner by violating the requirement of statute No.7 and therefore, it is said that he has committed the offence along with other co-accused persons namely petitioners No.2 to 5. There is no evidence or material available on record to establish the following facts :-
(i) The so called illegal link between the petitioner No.1 and M/s Infolink Consultancy Services Pvt. Ltd., Lucknow. Except for the fact that the petitioner No.1 had been working in Lucknow for four years and the firm in question M/s Infolink Consultancy Services Pvt. Ltd. also belongs to Lucknow, there is no evidence to link the alleged relationship between the petitioner No.1 and this firm.
(ii) There is no evidence to show that by allotting the work to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow at the rate recommended by the Committee, even though illegally constituted any financial loss is caused to the University and how undue financial benefit is conferred on the firm M/s Infolink Consultancy Services Pvt. Ltd., Lucknow ? With regard to this aspect of the matter, no a single evidence is available to show that any loss is caused to the University or financial gain caused to the firm in question. On the contrary in the report of Justice Dwivedi, a detailed analysis of the financial aspects is made to say that during the period petitioner No.1 was working as Vice Chancellor of the University, huge financial gain was caused to the University and the University financial structure improved during this period.
(iii) By allotting the work to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow, if any financial gain was caused to any of the petitioners, there is no mention of this anywhere in the voluminous charge sheet. The bank account of the petitioners or their movable or immovable assets are not seized, enquired into or referred to show any undue gain to them by allotting the work in the manner alleged to the firm in question. In fact against the petitioners there is no evidence to show that their income is disproportionate to their known source or they were benefited financially or otherwise due to the allotment of work.
18. The only assertion of the prosecution is on the presumption that petitioners No.1 to 4 followed the procedure which was not contemplated under statute No.7 and therefore, they committed illegality and because the work is allotted to the firm in Lucknow, an assumption is drawn that it was for giving undue benefit to this firm and causing undue gain to the accused persons. However, with regard to this aspect of the matter, except for drawing a presumption, no cogent evidence or material is available. These are facts which are writ large and apparent from the face of the record and at present, we need not go into an exercise of analysis of evidence or deal with the defense of the petitioners. In the enquiry report submitted by Justice Dwivedi, various aspects of the matter have been dealt with and it is found that the firm M/s Infolink Consultancy Services Pvt. Ltd., Lucknow was allotted the work after due approval by an appropriate Committee of the University. Even though, we have to hold that this Committee was not the Committee as contemplated under Statute No.7, but it has to be kept in mind that for the purpose of preparation of printing of questions papers and OMR sheets and for preparation of the results for a University examination, a certain level of confidentiality has to be maintained and if for this purpose, the Vice Chancellor with a good intention took a decision to constitute a High Level Committee, confidential in nature and if this Committee conducted its work in the most appropriate manner, without there being any malafide intention or criminality involved, what is the offence committed ? There is no answer to this moot question by the prosecution. If for the purpose of maintaining confidentiality in the conduct of examination, petitioner No.1 as a Vice Chairman evolves a process which even though deviates from the laid down procedure but it has served its purpose and if after following such a procedure, no criminal intention, malafide or criminality is involved, why should there be a prosecution, particularly, when there is no financial gain to any of the accused persons, nor has the State Exchequer or University suffered financial loss even to a single penny. If this aspect of the matter which is established from the material available on record is taken note of, we have no hesitation in mind to say that the prosecution in the present case is wholly unwarranted. It is because of this reason only that Justice Dwivedi and Lokayukt after conducting two elaborate inquiries, refused to prosecute the matter and now Economic Offence Wing (EOW) is proceeding with the matter, without any cogent evidence or material.
19. During the course of hearing of the matter with regard to financial irregularities in the matter of allotting the work to M/s Infolinc Consultancy Services Pvt. Ltd., this Court requested the counsel for the prosecution to point out specific details with regard to financial loss to the University, undue financial gain or gain in any other manner whatsoever, by any of the petitioners. We are constrained to observe that not a single piece of documents or evidence was pointed out to us from the charge sheet to show as to how and in what manner financial loss was caused to the University or the State Exchequer and how the petitioners were benefited by allotting the work in question to M/s Infolinc Consultancy Services Pvt. Ltd.. Except for saying that M/s Infolinc Consultancy Services Pvt. Ltd. was allotted the work in an illegal manner only because they and petitioner No.1 belong to Lucknow, bypassing all norms and procedure the work was allotted to them, we have to say and assert that not a single piece of evidence or document showing any financial gain to any of the petitioner or any gain in any other manner whatsoever is pointed out.
20. We are aware of the legal principles of law which govern exercise of jurisdiction by this Court in a petition under Section 397, 401 or 482 of Cr.P.C. and when we take note of the same, the law laid down by the Supreme Court in the case of N. Suresh Rajan (supra) as relied upon at the time of hearing, may be taken note of, where the Supreme Court has held that âÂÂat the time of considering an application for discharge, the Court cannot act as mouthpiece of the prosecution or act as a post office and shift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge.â The Court has to assume that the material brought on record by the prosecution are true, evaluate them as it is and then if ingredients constitute commission of offence, the charge should be framed else discharge is the only consequence. If we analysis the material available on record in the backdrop of the aforesaid requirement of law, as we have discussed in detail herein above, we find that in this case except for making allegations to say that by violating the procedural requirement as contemplated under Statute No.7 and by non payment of VAT and to do undue favour to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow, the work is allotted to the said firm, there is no iota of evidence available to show as to how and in what manner by doing so, the petitioners have committed any criminal offence which resulted in financial loss being caused to the State Exchequer and gain being caused to the accused persons.
21. In the case of Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another â (2013) 11 SCC 476, the approach to be adopted by the Court in the matter of framing of charges and the principles to be followed have been summarized by the Supreme Court and if we analyze the same, we find that at the stage of framing of charge, the Court is only required to evaluate the material and documents on record as they emerge, take at their face available and find out if the ingredients for constituting the offence are made out. Even if a strong suspicion is found, the charges can be framed. Reference is made to various judgments in the matter of framing of charge and it has been held that if the material does not disclose even remotely existence of a prima facie case and if two views are equally possible and if the Judge is satisfied that the evidence produced before him except for giving rise to some suspicion but not a grave suspicion against the accused, he will be fully within his right to discharge the accused. If we analyze the facts of the present case in the backdrop of the aforesaid requirement, we find that the suspicion in this case is only with regard to violation of the rules in the matter of allotment. Except for this strong suspicion or a fact which can be said to established, there is no iota of ingredients available on record to suggest any criminal intention, criminality or offence being committed in the matter which warrants prosecution.
22. Recently similar views were taken by the Supreme Court in the case of P. Vijayan Vs. State of Kerala (2010) 2 Crimes 1 SC. In this case also it has been held that if two views are possible and if one of them gives rise to suspicion only as distinguished from grave suspicion, discharge is permissible. In fact, at the time of framing of charges, the Court is only required to evaluate the material and documents and finding out that if the facts emerging therefrom taken at their face available disclose the existence of all the ingredients necessary to constitute the alleged offence. The Court is to consider judiciously as to whether on appreciating the entire material available on record, can it be said that the prosecution has established a connection between the accused and the offence and if there is reasonable probability or chance of the accused being found guilty, if the answer to this question are in the affirmative it is a fit case where the charges could be framed but if it is in the negative, discharge is the only consequence.
23. Except for demonstrating a procedural impropriety or illegality in the matter of allotment of work, no criminal intention, malafide or criminality is made out from the entire material available on record . That being the position, we have no hesitation in holding that it is a fit case where prosecution of the petitioners on the material available according to us is not at all warranted and it is a fit case where their discharge can be ordered.
24. In the case of Major J. S. Khanna (supra), similar questions with regard to procedural impropriety has been considered and similar action quashed by the Court as charges were said to be not made out and it was held by the Court in the aforesaid case that mere violation of the procedure may be proved but in the absence of criminal intent and criminality being established, prosecution cannot continues. In the present case also, similar scenario exists and therefore, we are of the considered view that it is a fit case where the petitioners should be discharged as no useful purpose would be served by prosecuting them in the manner as done.
25. Accordingly, this criminal revision is allowed. Charges framed by the impugned order dated 13.7.2015 are quashed and the petitioners are discharged of all the allegations leveled against them.
( Rajendra Menon) ( S. K. Palo )
Judge Judge
Aks/-/ mrs.mishra
(RAJENDRA MENON) (SUSHIL KUMAR PALO)
JUDGE JUDGE