Jammu & Kashmir High Court
Thakur Dass Sharma vs State And Anr. on 28 July, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT
JAMMU
Case: Petition u/s 561-A Cr.P.C. No.73/2013 & MP No.89/2013
Date of decision: 28.07.2017
Thakur Dass Sharma Vs. State of J&K and anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner(s) : Mr. Sunil Sethi, Sr. Advocate with
Mr. Parimoksh Seth, Advocate.
For respondent(s): Mr. Raman Sharma, Dy. AG.
i) Whether approved for reporting
in Press/Journal/Media : Yes/No
ii) Whether to be reported in
Digest/Journal : Yes/No
1. Through the medium of present petition under Section 561-A Cr.P.C. No.73/2013, the petitioner seeks the following two fold reliefs viz.:-
a) For quashing challan titled 'State of J&K Vs. Jatinder Kumar Gupta and others' in so far as it pertains to the petitioner only, which is pending trial before the Court of learned Special Judge, Anti Corruption, Jammu and for discharging the petitioner from the aforesaid case; and Or in the alternative
b) Treat the instant petition as Criminal Revision Petition against the order dated 22.01.2013 passed by the Court of learned Special Judge, Anti Corruption, Jammu in challan titled 'State of J&K vs. Jatinder Kumar Gupta and others' whereby amongst others, charges have been framed against the petitioner for offence under Section 5(1)(d) read with 561-A Cr.P.C. No.73 of 2013 Page 1 of 13 Section 5(2) of the J&K Prevention of Corruption Act and 120-B of Ranbir Penal Code.
2. Learned counsel for the petitioner submitted that in the year 2004, the petitioner was working as Chief Education Officer, Poonch. The Government in the Education Department took a decision to procure laboratory equipments i.e. microscope to be used in various Government Schools for Class VIII onwards for examining the properties of minerals and the committee was constituted for the said purpose wherein accused No.1- Jatinder Kumar Gupta was the Member Secretary and accused Nos.2 & 3- Romeshwar Kumar Sharma and Balbir Singh were the expert members. The said Committee was headed by the Director, School Education. That after the decision was taken by the aforesaid Committee, the Chief Education Officers of respective districts were directed to assess the requirement of procurement of equipments for using the same in various schools in the districts. The petitioner had approved order for placement of 25 microscopes for higher secondary schools in district Poonch. The Director, School Education, Jammu also constituted Committee of Experts wherein personnel of various departments of teaching including Geography were made as members. That on 25.08.2004 a tender notice was issued by the Director School Education Jammu, in which it was specifically mentioned that microscopes were required to be used for 561-A Cr.P.C. No.73 of 2013 Page 2 of 13 departments of Physics, Chemistry, Botany, Zoology, Geology and Geography. The petitioner got the field reports and as per the requirement of various schools, 25 microscopes were required in District Poonch for which the order was placed. That subsequent to the purchase and supply of equipments in reference to NIT No.01-DSEJ dated 25.08.2004 issued by the Director School Education Jammu, an FIR No.10/2005 came to be registered by the Vigilance Organization Jammu on the allegation that sub- standard laboratory equipments including microscopes for examining the properties of minerals at exorbitant rates were purchased. That investigation was conducted by the Vigilance Organization and on completion of investigation, the challan was presented before the Court of learned Special Judge, Anti Corruption, Jammu, in which allegation against the petitioner was that he had placed the order for procurement of said equipments without requirement of the same in the schools concerned thereby putting to loss the Government exchequer. That while doing the investigation no reliance was placed to the requirement of the subject of Geography and it was projected as if the microscopes were required for only Geology subject whereas the matter of the fact was that microscopes were required for the subject of Geography as well for study of materials. That all the microscopes were dispatched to the schools concerned and were put to use and there was no question of any loss having been caused 561-A Cr.P.C. No.73 of 2013 Page 3 of 13 to any person as placement of the order was as per the rates approved by the State Level Purchase Committee, in which the petitioner has no role to play. The petitioner has absolutely no role to play in the selection and evaluation of the approved samples of microscopes as the said job was done by the Expert Committee in which the petitioner was not even the member in his capacity as Chief Education Officer. That neither the Government nor the Purchase Committee had taken a decision on the number of microscopes to be purchased and it was left to the expertise of the Chief Education Officer concerned to indicate number of microscopes to be procured. The petitioner after taking stock of the situation and looking to the requirement of the microscopes in the subject of geography for mineral examination, the order was placed for 25 microscopes.
3. Learned counsel further submitted that during the pendency of the aforesaid case before learned trial Court, the Government in the General Administration Department also took up the matter with the Commissioner of Vigilance, J&K, Srinagar vide letter dated 12.06.2007 and requested him to furnish his comments on the enquiry report of the Education Department. The relevant extract on which the comments were sought from the Commissioner of Vigilance is reproduced as under:-
"The Education Department have informed that the enquiry conducted by the Department has 561-A Cr.P.C. No.73 of 2013 Page 4 of 13 indicated that the Chief Education Officers had no role in fixation/approval of rates, selection of items and allotment of contracts as all these items were approved by the Divisional Level Purchase Committee and that the role of CEOs was only to place orders within the approved contract as per actual requirement of material."
4. Learned counsel for the petitioner submitted that subsequent to filing of challan, the Court of learned Special Judge, Anti Corruption, Jammu has passed the order impugned dated 22.01.2013 and the same being challenged, inter alia, on the ground that challan presented before the learned trial Court, indicates that no offence much less a prima facie offence under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act and 120-B RPC is made out against the petitioner. In the challan, it is no where stated that there has been conspiracy between the petitioner and rest of the accused persons much less accused No.7 and no evidence has been projected that the petitioner desired to put the government exchequer to loss. That learned trial Court while framing charge against the petitioner has not taken note of the fact situations and without looking to the evidence available on record, framed the charge against the petitioner in a mechanical manner. That the projected evidence in the challan even if is taken on its face value, no case muchless a case for commission of offence under Section 5(1)(d) read with Section 5(2) of the Prevention of 561-A Cr.P.C. No.73 of 2013 Page 5 of 13 Corruption Act and 120-B RPC is made out against the petitioner. That the prosecution story as alleged in the challan does not even remotely connect the petitioner with commission of any offence. The petitioner has not played any role in the fixation of the price of laboratory equipments nor was he in any manner associated with the price fixation or assessing the quality of the laboratory equipments including microscopes. The only role which has been attributed in the entire transaction was accord of approval by him to the actual requirement of the microscopes for district Poonch which was based on the assessment carried out by the Committee in which again the petitioner had no role to play. The prosecution case contains number of discrepancies and do not make out any case as alleged against the petitioner in the challan.
5. On the basis of afore mentioned submissions, learned counsel for the petitioner prays quashing of challan and setting aside impugned order dated 22.01.2013.
6. Mr. Raman Sharma, learned Dy. AG, appearing on behalf of respondent, vehemently argued submitting that interference by this Court is very limited under Section 561-A Cr.P.C. in a case in which investigation is incomplete and charge-sheet has been filed. It is impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. Even at the stage where charge is framed, the Court has to only prima facie be satisfied about the existence of 561-A Cr.P.C. No.73 of 2013 Page 6 of 13 sufficient ground for proceeding against the accused and for that limited purpose it can evaluate material and documents on record but it cannot appreciate the evidence. Learned counsel further submitted that inherent power is to be exercised sparingly and that too in the rarest of rare cases. It is to be exercised ex debito justitiae to do real and substantial justice and not to stifle legitimate prosecution. Learned State Counsel further submitted that though no hard and fast rule can be laid down as regards cases where such power can be exercised, but the High Court being the highest Court of a State should normally refrain from giving decision in a case where the entire facts are incomplete and hazy. In support of his contentions, learned counsel relies on decisions of the Hon'ble Supreme Court in cases titled as 'State of Orissa and another v. Saroj Kumar Sahoo' reported in (2005) 13 Supreme Court Cases 540; and 'Shoraj Singh Ahlawat and ors. Vs. State of U.P. and anr.' reported in AIR 2013 Supreme Court 52. Learned counsel prays that the instant petition deserves dismissal out rightly on afore mentioned submissions.
7. Heard learned counsel for the parties and perused the file.
I have also gone through the law on the subjects.
8. Counsel for petitioner has sought first relief for quashing of challan titled 'State of J&K Vs. Jatinder Kumar Gupta and others' in so far as it pertains to the petitioner only, which is pending trial before the Court of learned Special 561-A Cr.P.C. No.73 of 2013 Page 7 of 13 Judge, Anti Corruption, Jammu; and in alternative treat the instant petition as Criminal Revision Petition against the order dated 22.01.2013 passed by the Court of learned Special Judge, Anti Corruption, Jammu in challan titled 'State of J&K vs. Jatinder Kumar Gupta and others' whereby amongst others, charges have been framed against the petitioner for offence under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and 120-B of Ranbir Penal Code.
9. From the perusal of records/challan, it reveals that petitioner along with six more persons are facing trial before court below on allegations that that they being officials of Education department Jammu Division had purchased sub standard laboratory equipments including microscopes for examination of properties of minerals on highly exorbitant rates in 2004-2005. The FIR reveals that an information was received in Vigilance department and thereafter a JSC was conducted which revealed that in response to tender notice issued vide NIT No.01-DSEJ dated 25.08.2004 of Divisional Level Purchase Committee (DLPC) of Education Department Jammu. M/s Cosmopolitan Traders, Vir Marg, Jammu offered quotations for supply of microscopes for examining the properties of minerals Rs.1800/- per microscope as against print/bills of Rs.650/-. Sh. Jatinder Kumar Gupta, then Lect. SIE, Jammu nominated as expert vide order No.DSEJ/Acctt/830005 dated. 26.08.2004 in 561-A Cr.P.C. No.73 of 2013 Page 8 of 13 respect of purchase of science items relating to Geology subject by abusing their official position facilitated the approval the rate of microscopes which were not meant for examination of properties of minerals at highly exorbitant rates. The enquiry further revealed that Sh. Romeshwar Sharma the then Lect. Geology, Govt. HSS Samba being an expert member has also facilitated the approval of rates and purchase of sub standard dissection microscopes instead of microscopes intended to be purchased for teaching Geology. Having succeeded in getting the rates approved with active connivance of above mentioned experts the supplier M/s Cosmopolitan Traders, Vir Marg, Jammu roped S/Sh. Prem Parkash Verma the then CEO Kathua, Balbir Singh Jamwal, then CEO Udhampur and Thakur Dass Sharma the then CEO Poonch in criminal conspiracy, who by abuse of their official position with ulterior motive of extracting maximum undue benefit out of the deal have purchased microscopes on highly exorbitant rates much over and above the actual requirement. The purchases thus effected have put the state exchequer to a loss of Rs.3.45 lac with a corresponding undue pecuniary advantage to the accused. The mentioned acts of omission and commission on the part of aforesaid accused public servant and accused supplier constituted offences punishable u/s 5(1)(d) r/w 5(2) PC Act Avt. 2006 & Sec. 120-B RPC. Accordingly, the instant case was registered in P/S VOJ and investigation 561-A Cr.P.C. No.73 of 2013 Page 9 of 13 was entrusted to Sh. Amanat Ali Shah the then Dy.SP PRK VOJ.
10. From bare perusal of FIR, it reveals that cognizable offences were made out and so after completing the investigation, challan was produced by respondent before Special Judge Anticorruption Court, Jammu. All accused persons have been charge sheeted by virtue of order dated 22.1.2012; the present accused/petitioner who was Chief Education Officer Poonch has also been charge sheeted.
11. The main argument of Sunil Sethi Sr. Counsel for petitioner is that as GAD has conducted departmental enquiry with regard to allegations and found that the Chief Education Officers had no role in fixation/approval of rates, selection of items and allotment of contracts as all these items were approved by the Divisional Level Purchase Committee, and that the role of CEOs was only to place orders within the approved contract as per actual requirement of material. The court below while framing charge has not considered a document with this regard, which prosecution has itself annexed in challan. Thus, charges framed against him are not sustainable. He has also relied upon 2013 (3) RCR (Criminal) page 763 case titled Lokesh Kumar Jain v. State of Rajasthan, wherein it is held as under :-
" 28. In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1, this Court noticed that the appellant was exonerated in the departmental proceeding in the light of report of the Central Vigilance Commission and concurred by the 561-A Cr.P.C. No.73 of 2013 Page 10 of 13 Union Public Service Commission. The criminal case was pending since long, in spite of the fact that the appellant was exonerated in the departmental proceeding for same charge.
29. Having regard to the aforesaid fact, this Court held that if the charges which is identical could not be established in a departmental proceedings, one wonders what is there further to proceed against the accused in criminal proceedings where standard of proof required to establish the guilt is far higher than the standard of proof required to establish the guilt in the departmental proceedings."
12. While going through challan, I find that there is order No. GAD(VIG) 24-SP /2007 DATED 12.6.2007 addressed by under Secretary GAD to the Commissioner of Vigilance thereby asking for comments on the subject;-
"The Education Department have informed that the enquiry conducted by the Department has indicated that the Chief Education Officers had no role in fixation/approval of rates, selection of items and allotment of contracts as all these items were approved by the Divisional Level Purchase Committee and that the role of CEOs was only to place orders within the approved contract as per actual requirement of material."
13. So bare perusal of this letter, it is evident that there is clear cut finding of GAD that CEOs had no role in the whole transaction. This is the prosecution document.
14. In terms of section 8 of Criminal Law Amendment Act 1958, the procedure of trial of warrant as given in Cr.P.C shall be applicable for trial of cases under Prevention of corruption Act. It is apt to mentions section 251-A Cr.P.C .
"[251A. Procedure to be adopted in cases instituted on police report.561-A Cr.P.C. No.73 of 2013 Page 11 of 13
(i) when, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of a trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has been furnished with such documents or any of them, he shall cause them to be so furnished.
(2) If, upon consideration of all the documents referred to in Section173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.
(3) If, upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried.
15. Bare perusal of these relevant provisions of law, it is manifest that while framing of charge, judge is required to consider all the documents annexed along with challan. Judge at the time of framing of charge should not only rely upon documents or evidence which are incriminating against the accused in challan; it is also his duty of judge to examine the document/s annexed in challan which can help the accused proving his innocence.
16. Hence, this petition is allowed and order dated 22.1.2013 of framing of charge against petitioner is set aside. Case is remanded back to Court below. Court below shall re- hear the petitioner afresh and after relying upon the document as mentioned above along with other evidence 561-A Cr.P.C. No.73 of 2013 Page 12 of 13 whether documentary or otherwise and legal impact of the document/s, shall pass order. Already much time has elapsed, so trial Court shall expedite the trial.
17. File of trial court along with order is sent back to trial Court, where petitioner shall appear on 08.08.2017.
(Sanjay Kumar Gupta) Judge Jammu 28.07.2017 Narinder 561-A Cr.P.C. No.73 of 2013 Page 13 of 13