Jharkhand High Court
Anil Kumar Singh vs The State Of Jharkhand on 28 April, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.1114 of 2009
With
I.A. No.2777 of 2022
Anil Kumar Singh ..... Petitioner
Versus
1. The State of Jharkhand
2. Nawal Kishore Gupta .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Petitioner : Mr. Pankaj Kumar Dubey Advocate
For the State : Mr. Shailesh Kr. Sinha, APP
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10/28.04.2022 Learned counsel for the petitioner and learned counsel for the State are present. Nobody appears on behalf of the opposite party No.2.
2. Heard the parties.
3. Learned counsel appearing on behalf of the petitioner submitted that one I.A. No.2777 of 2022 has been filed in this Cr.M.P. in hand with a prayer at first to include in the prayer portion of the Cr.M.P. for setting aside the order dated 05.12.2008 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No.914 of 2006, wherein, the learned court below took the cognizance for the offences punishable under Sections 465, 466, 468, 469, 471 and 472 of IPC against this petitioner and further praying to extend the stay granted earlier by this Court vide order dated 23.02.2010 in view of the fact that the concerned court below has vacated the stay order in the light of the order passed by the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited & Anr. Vs. Central Bureau of Investigation, reported in (2018) 16 SCC 299.
4. It has further been submitted by the learned counsel appearing on behalf of the petitioner that originally the Cr.M.P. was filed against the order passed by the learned Sessions Judge, Dhanbad on 26.08.2008 in Cr. Revision No.102 of 2007, which was filed by the O.P. No.2 against the order of the learned court below dated 30.03.2006, by which, the learned trial court below did not take cognizance in C.P. Case No.914 of 2006 and dismissed the complaint of the complainant under Section 203 of Cr.P.C. Thereafter the O.P. No.2 the complainant had preferred the Cr. Revision No.102 of 2007, which was allowed finding that the prima facie case 2 against the petitioner and the co-accused and the case was remitted to the learned court below, upon which, learned court below took the cognizance against this petitioner and the co-accused for the offences punishable under Sections 465, 466, 468, 469, 471 and 472 of IPC vide order dated 5.12.2008.
It has further been pointed out by the learned counsel appearing on behalf of the petitioner that a complaint was filed vide C.P. Case No.914 of 2006 before the concerned trial court alleging therein that between the period 27.2.1995 to 27.3.2006 and on 3.4.1996, O.P. No.2 being a contractor of Dhanbad Rly. Division had carried out tender work of Rly. against the allotment of the work order vide letter No. W584/40/92-93/Ltd./IIDtd.8.02.93 and after the completion of the work, the opposite party No.2 had submitted a final bill and thereafter it was alleged by O.P. No.2 that instead of making the payment of final bill, the present petitioner had started demanding illegal gratification but the complainant did not meet their illegal demand then it is alleged by the complainant that both the petitioner and the co-accused fabricated the lead diagram chart without the signature of the complainant-opposite party No.2 resulting into under payment of money and as such, it was further alleged that the petitioner and the co-accused had committed the offences of forgery and fabrication of documents punishable under sections 465, 466, 468, 469, 471 and 472 of IPC. But it is found that at the first instance, learned trial court did not find prima facie case against the petitioner and therefore the complaint was dismissed vide its order dated 30.3.2007 by a speaking order. Thereafter the O.P. No.2 the complainant had preferred the criminal revision, which was allowed finding the prima facie case against the petitioner and the co-accused and the case was remitted to the learned court below holding, inter alia, that " I am of the opinion that prima facie case is made out against accused persons of having manipulated and forged the document so that the applicant was put to monetary loss as illegal gratification demanded by them was not made," upon which, learned court below without applying its judicial mind took the cognizance against this petitioner and the co-accused for 3 the offences punishable under Sections 465, 466, 468, 469, 471 and 472 of IPC vide order dated 5.12.2008.
5. It has been contended on behalf of the petitioner that the complainant is an approved Rly. contractor of Dhanbad Rly. division and it is alleged that there has been a dispute in the payment of bill submitted by the complainant-contractor who stated that there had been demand of illegal gratification and when the same was not paid, both the petitioner and co-accused fabricated a lead diagram with respect to the measurement of the work done by the complainant-opposite party no.2 without obtaining his signature resulting into under payment of money but all the allegations are false and fabricated because of sweeping allegations of gratification and further acceptance of final payment of money of the bill by the opposite party no.2 as awarded by the arbitrator as per the agreement between the contractor-opposite party no.2 and the Railway and after the receipt of the full and final payment of money against the bill in question, the opposite party no.2 with malice and ulterior motive lodged the complaint case no. 914 of 2006 which was dismissed at its first instance by the learned trial court vide its order dated 30.03.2007 and thereafter a Criminal Revision No.102 of 2007 was preferred by the O.P.no.2 and same was allowed vide order dated 26.8.2008 by setting aside the order dated 30.03.2007 passed in complaint case no. 914 of 2006 and subsequently on 5.12.2008 the learned trial court took the cognizance for the offences punishable under section 465,466,468,469,471 and 472 of the IPC which are under challenge as it does not hold good.
6. On the other hand, learned APP Shailesh Kumar Sinha is present on behalf of the State. The O.P. No.2 had filed the show-cause in this case, which is available on record. From the contents of show cause filed on behalf of the O.P. No.2, it is found that the objection has been raised on his behalf that the petitioner despite the completion of the work by the O.P. No.2 and submission of the final bill, payment was not made to him and illegal gratification was demanded and when same was not met by the complainant, the accused persons also committed forgery in the document entry in order to make the lesser payment to the complainant 4 O.P. No.2 who had admitted the fact that in pre arbitration settlement, a sum of Rs.90,000/- was paid to him, but that too after a lot of harassment and mental tensions suffered by him, but the allegation of manipulation of the record of the case was done and therefore the complaint was filed inter alia mainly for manipulation of the record illegally and unlawfully with a deliberate intention to pressurize the respondent to pay illegal gratification and therefore it is alleged by the O.P.no.2 that the petitioner and the co-accused have committed the offences under Sections 465, 468, 469, 471 & 472 of IPC and learned Sessions Judge has rightly passed the order dated 26.08.2006 by allowing the criminal revision , upon which the learned court below proceeded against the petitioner for the offence punishable under sections465, 466,468, 469, 471 & 472 and there is no legal point to interfere in the impugned order.
7. Having heard the parties, perused the record of this case.
8. It is found that it is a case of payment and non-payment of bill submitted by the contractor-complainant to the Railway authorities (the petitioner Anil Kumar Singh is one of them) for making the payment. It is admitted case that in the arbitration, a sum of Rs.90,000/- was paid to the complainant O.P. No.2 for the alleged works done by him as per the terms and conditions of the Settlement Agreement dated 16.06.2003 in Pre-Arbitration Standing Committee meeting and therefore the manipulation of the document as alleged by the complainant O.P. No.2 gets falsified with the acceptance of the money awarded in the arbitration against the full and final settlement of his bill in the settlement agreement arrived at between the parties willingly and voluntarily in Pre- Arbitration Standing Committee meeting which is evident from the show cause filed by O.P.no.2 as available on record.
9. In view of admitted facts and in absence of cogent proofs there is no question of any gratification or any unlawful means of taking the money from the O.P.no.2 and only by sweeping allegations, the complaint has been field and the learned Sessions Judge while hearing the criminal revision application did not appreciate the depositions of the enquiry held in the complaint case by the learned court below at the first instance where the learned court below had passed a very reasoned 5 order on 30.3.2006 by which the ld. Court below had rightly dismissed the complaint filed by opposite part no.2 vide complaint case no. 914/2006 but the ld. Sessions judge did not appreciate the facts, inter alia, that in the arbitration, a sum of Rs.90,000/- was paid to the complainant O.P. No.2 for the alleged works done by him as per the terms and conditions of the Settlement Agreement dated 16.06.2003 in Pre- Arbitration Standing Committee meeting and therefore the manipulation of the document as alleged by the complainant O.P. No.2 does not arise. Further non-application of judicial mind by the ld Sessions judge is also evident from the order dated 26.8.2008 in Criminal Revision No.102 of 2007 where without discussing the materials available on record the ld Sessions judge held that a prima facie case is made out as against the petitioner and then remit the case back to the concerned lower court with a direction to pass fresh order on the basis of material available on record which is quite ridiculous when the ld Sessions judge court itself held that there is a prima facie case inasmuch as the ld. court below lost its authority, the moment the ld Sessions Judge court itself held that a prima facie case is made out. It has further been pointed out that the petitioner has been Assistant Engineer-II, Gomoh and he was to test and check the measurement for payment according to the lead, i.e. the smallest route by which, the work should have been done. However, the final bill submitted by the opposite party No.2 was on the basis of the longer lead in view of the fact that the opposite party No.2 had prepared final bill on the basis of the transportation that he had done via-road route for his own benefit avoiding arranging the dip lorry, but the difference of money, which was to be paid was not agreed by this petitioner and therefore the contractor-complainant disagreed by making sweeping allegation against this petitioner and co-accused. The exact details of the work done and payment made thereof has been prepared by the petitioner and submitted to the higher authorities, which has been annexed in detail vide Annexures 4, 5 & 6 to this petition. It has further been pointed out that according to the terms and conditions of the contract, if there is any dispute in between the Contractor and the Railways on the payment of bill, a special clause has been incorporated, 6 wherein the matter shall be settled by arbitration and as such, in the present case the matter was finally placed before the arbitration in pre arbitration stage to settle the issue amicably and in Pre Arbitration Standing committee the matter was amicably settled between the parties vide Annexure 7 under which the O.P.no.2 admittedly received a sum of Rupees 90,000.00 (Rupees Ninety thousand only) and while taking the final payment after the award of the Arbitrator, it was categorically mentioned that no other claim shall be made by the Contractor in this regard as the O.P.no.2 has voluntarily and willingly received the said amount as full and final settlement dated 16.06.2003, but subsequently after a lapse of three years, the opposite party No.2 filed the present complaint case vide C.P. Case No.914 of 2006 in the year 2006, which is the utter violation of settlement agreement vide Annexure - 7 of the petition only to harass the petitioner. Further it has been pointed out that the petitioner being a gazette officer in the Railway is protected under Section 197 of the Code of Criminal Procedure and the allegation for the non-payment of the bill submitted by the contractor-complainant is an act during the course of discharging his official duty by the petitioner and therefore the interest of the petitioner is protected under Section 197 of Cr.P.C. and without complying the said provision, this complaint has been filed which is not tenable in the eyes of law. The learned counsel appearing on behalf of the petitioner relied upon the rulings of Honble Supreme Court as reported in (2020) 7 SCC 695 (D. Devaraja Vs. Owais Sabeer Hussain). This court finds force in the contentions raised on behalf of the petitioner as found in the said Devraja'case (Supra), the Hon'ble Supreme Court discussing several cases on the point of protection given under section 197 of Cr.P.C. including Om Prakash V. State of Jharkhand.(2012) 12 SCC 72 as one of them. Under the circumstances of the case Hon'ble Supreme Court has held as under :
"30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant / police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings.
49. Citing the judgment of this Court in State of Haryana v. Bhajan Lal, Mr. Poovayya argued that where a criminal proceeding 7 is manifestly prompted by mala fides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of court and / or to secure the ends of justice.
70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.
72. On the question of the stage at which the trial court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court.
73. While this Court has, in D.T. Virupakshappa held that the High Court had erred in not setting aside an order of the trial court taking cognizance of a complaint, in exercise of the power under Section 482 of the Criminal Procedure Code, in Matajog Dobey this Court held that it is not always necessary that the need for sanction under Sections 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and / or under colour of duty. However, the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceeding."
10. In view of the aforesaid rulings in the present case, it is found that the cognizance taken by the learned court below, is a pure non- application of judicial mind and only on the receipt of the order passed in the criminal revision by the learned Sessions Judge in Cr. Revision No.102 of 2007, the cognizance has been taken against the petitioner for the offence under Sections 465, 466, 468, 469, 471, 472 of IPC, which is not tenable in the eyes of law. It is found that the impugned order passed in the Cr. Revision No.102 of 2007 by the learned Sessions Judge, Dhanbad, also ignored the fact on the point of sanction which is must as there is no manipulation of records of forgery which is part of his official duty for 8 considering the shortest route by which materials have been carried by the contractor-complainant who had received the amount of Rs.90,000/- against the submission of his bill in the arbitration at the pre arbitration settlement and therefore nothing remains to make out any allegation with respect to the manipulation and forgery of the document and the present complaint no. 914/2006 has been filed to tarnish the image of the petitioner who was a public servant being the then A.E.N.-2/Gomoh Eastern Railway, Dhanbad and presently at the time of instituting the complaint case he was Chief Engineer (Con.) N.C.Rly. Gwaliar(M.P.).
11. Having taking into consideration aforesaid facts and submission, the order dated 30.3.2006 passed by the learned Sessions Judge in Cr. Revision No.102 of 2007 and the order dated 5.12.2008 of taking cognizance by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No.914 of 2006 against the petitioner Anil Kumar Singh are bad in law and fit to be set-aside and the same are quashed.
12. In the result, this Cr.M.P. filed by this petitioner is allowed with respect to this petitioner Anil Kumar Singh only and the I.A. No.2777 of 2022 also gets disposed of accordingly.
(Navneet Kumar, J.) R.Kumar