Jharkhand High Court
Chandra Bhushan Sahay vs Union Of India Through Central on 26 September, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2844 of 2021
Chandra Bhushan Sahay .... .. ... Petitioner
Versus
Union of India through Central, Bureau of Investigation ... ... Opp. Party
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........
For the Petitioner : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate For the C.B.I. : Mr. Prashant Pallav, D.S.G.I. Ms. Shivani Jaluka, AC to D.S.G.I. ......
C.A.V. ON 13.09.2022 PRONOUNCED ON 26 /09/2022
1. The instant petition has been filed under Section 482 Cr.P.C. for setting aside the entire criminal proceeding against the petitioner/ accused in RC-14(A)/ 2010-R pending in the court of Special Judge, CBI, Ranchi for the offence punishable under Section 120B read with Sections 420, 465 & 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988. (hereinafter referred to as P.C. Act.)
2. The petitioner accused was the project officer at the relevant time and on surprise check conducted by the CBI huge shortage was found between the actual physical stock and the book stock of coal in Central Coal Field Mines.
3. The FIR was registered on 29.06.2010 with regard to coal-shortage in Jharkhand Open Cast Project, Hazaribagh Area of Central Coalfields Ltd., in which the petitioner had been the Project Officer during the year, 2009-10. The instant case was instituted after the joint surprise check conducted by the CBI on 04.02.2010 in Jharkhand Coals Project CCL under Hazaribagh, which disclosed shortage of 30,887.38 metric ton of coal. The total Book Stock of coal on the date of check was 1,87,988.18 metric ton, whereas after the measurement, the physical available stock of coal was found to be only at 1,57,100.8 metric ton. The total value of the shortage as per the current rate was Rs.3,45,93,866/-.
The main allegation is that while preparing contour plan of the heap no.15, ground levels were manipulated, which was approved by Shri Bhagwan Das Yadav, Chief General Manager, CCL, Hazaribagh Area, Charhi without getting the same verified by the Area Surveyor Officer.
2It is also alleged that shortage of coal was continuing since long and the accused public servants in pursuance to the criminal conspiracy attempted to conceal the shortage of the coal by preparing manipulated measurement books. It is further alleged that the accused person, in an attempt to make up the shortage of coal, dispatched coal mixed with substantial amount of over burden (rocks, shale etc.).
4. It is stated that Shri. Bhagwan Das Yadav, Chief General Manager, CCL, Hazaribagh Area, Charhi, Vishnu Kumar Agrawal, Santosh Prasad Sarangi and Chandra Bhushan Sahay posted during the relevant periods as Project Officers, Shri Binay Kumar Thakur, Manager while working in their respective capacities were the custodians of the stock and thereby supposed to protect the stock of coal and interest of the department. Under the fraudulent design and attempt to conceal/ cover up the shortage records were recorded and fabricated coal mixed with over burden was dispatched.
5. Shri Probodh Kumar Das, the then Sr. Survey Officer of the Jharkhand Open Cast Project, CCL Hazaribagh Area was supposed to periodically measure the coal stock and prepare the Monthly Coal Stock Measurement Statements, but wrong figures were entered to suppress the shortage of coal in the stock. The above act of deliberate suppression of facts by Shri P.K. Das was actively supported by S/Shri V.K. Agrawal, S.P. Sarangi, C.B. Sahay (petitioner) and B.K. Thakur was in furtherance of criminal conspiracy.
6. After investigation, charge-sheet has been submitted by CBI and cognizance was taken against the petitioner and other accused persons vide order dated 01.06.2012. The petitioner preferred Cr.M.P. No.1290 of 2012 and Cr.M.P. No.1717 of 2012, but both were rejected. Further, the Cr.M.P. No.2322 of 2012 has been preferred, but the judgment has been reserved as the judgment in this case is awaited.
7. The discharge petition was rejected and the petitioner preferred Cr. Revision No.386 of 2018, which was allowed to be withdrawn and liberty was given for raising all these issues before the learned trial court.
8. The grounds for filing the instant Criminal Misc. petition is that a departmental proceeding was initiated on the following memorandum of charges:
3"ARTICLE 1 Shri Chandra Bhushan Sahay, General Manager (Mining), while posted and functioning as Project Officer, Jharkhand Open Cast Project, Hazaribagh Area, CCL during the year 2009-10, committed gross irregularity in matter on maintenance of physical coal stock at Jharkhand OCP inasmuch as the surprise check conducted during the period from 01.02.2010 to 04.02.2010 by the officers of CBI, the Surveyors and Vigilance officers of CCL, Ranchi and surveyors of CMPDIL, Ranchi revealed abnormal shortage in physical coal stock of Jharkhand OCP.
The above acts of omissions and commissions on the part of Shri Chandra Bhushan Sahay besides being amounting to non-fulfilment of duties and obligations as contained under Rule 4.1(i), 4.1(ii), 4.2, 4.3 and 4.6 of the Conduct Discipline and Appeal Rules, 1978 of CIL (amended up to April 2000) was also tantamount to misconduct under Section 5.0(5), 5.0(6), 5.0(9) & 5.0(26) under said Rules."
Under this article of charge in the departmental enquiry, the petitioner/ accused has been exonerated of the charges. The enquiry report exonerating the accused was submitted by Sri B. Trivedi, Ex-General Manager Personnel, CCL and accepted by the Chairman -cum- Managing Director and disciplinary authority vide order dated 06.07.2021 after considering the CVC advice dated 04.06.2021. It is submitted the the CVC after perusing the enquiry report along with relevant records and the CBI report regarding exoneration of the petitioner/ accused, Chandra Bhusan Sahay recommended the exoneration.
9. Against this backdrop and relying on the ratio of Ashoo Surendranath Tiwari Versus Deputy Superintendent of Police, EOW, CBI reported in (2020) 9 SCC 636, it is submitted that in view of the exoneration on merits, which has held that the method of measurement adopted by the joint surprise check (JSC) was faulty and petitioner/ accused having been exonerated in the departmental proceeding, the criminal charge has lost the foundation on which it stood and is fit to be quashed.
10. The specific reference has been made to the Enquiry Report which reads as follows:-
After going through the facts brought out in the proceeding, Management exhibits, Defence exhibits, and written brief submitted by management and defence the following facts revealed-4
That the JSC has not ensured a scientific measurement of coal heap no.15 and thus the measurement is wrongful in as much as it is not in conformity to the provisions of 'uniform system of maintenance, control and verification of coal stock in all mines of CIL' commonly known as Yellow book.
The JSC did not verify the previous methods of measurement of heap no.15 of JOCP and adopted different methods. Moreover the height of coal was measured by digging pit and trenches for the purpose of calculation of volume of coal which should have only been for the purpose of verification of contour GL and quality of coal further the height of coal were only measured by tape at 24 grid points without ascertaining the actual GL by digging upto ground level at any of these grid points. JSC's assumption of the presence of large stone boulders below which there was no coal is also an estimation which could have been actually verified and sample for quality assessment could have been taken for its confirmation. The approved contour of heap no.15 was correct and remained operative since its inception in year 2008 till its re-contouring in the year 2015. Hence there is no reason of considering the contour of heap no.15 inaccurate during JSC measurement.
Making good of huge shortages of coal in very short span of one month or so is impractically specially when the entire coal heap was despatched without any grade reduction and without any shortage.
I therefore have reasons of shortages being in the past which have never been actually quantified but the shortages alleged in the month of November and December 2009 are illogical in view of above observations.
I therefore come to a conclusion that the charges as contained in statement of Article of charges (Annexure-1) read with statement of imputation of misconduct (Annexure-II) of Memorandum no.CCL/Vig/RDA- 25/16/17-18/2543 dated 12.12.2017 are not proved and Sri C.B. Sahay is not guilty under Rule 4.1(i), 4.1(ii), 4.3 and 4.6 tantamounting to misconducts under 5.0(5) 5.0(6) 5.0(9) 5.0(26) of CDA Rules 1978 of CIL.
11. Reliance has been placed on Rajiv Thapar and others. Vs. Madan Lal Kapoor reported in 2013 (3) SCC 330 at Para 30, which is quoted here under:-
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for 5 quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/ complainant; and/ or the material is such that it cannot be justifiable refuted by the prosecution/ complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
12. Sri Prashant Pallav, learned ASGI appearing for the CBI has vehemently opposed the instant petition for quashing of the entire proceeding. It is submitted that petitioner had moved earlier this Court for the similar relief, which has been rejected by this Court and attained finality and then after framing of charge, the case is now at the stage of trial. It is submitted that the grounds which have been taken in the instant petition constitute the defence of the accused, which he is at liberty to raise in trial. The matter as it stands is that there are enquiry reports conducted by the joint surprise check comprising of experts from CCL and CMPDIL and other surveyors who found that there was large scale of shortage of physical stock of coal as stated above, which makes out a prima facie case against the petitioner. On the point of law, reliance has been placed in the case of (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685 wherein it has been held 6 that on the basis of exoneration in the departmental proceeding, the criminal prosecution on the same charge or evidence is not contemplated.
13. The very short point for consideration is whether the criminal charges are fit to be quashed for exoneration in the departmental proceeding.
14. This Court is of the view that mere exoneration of departmental proceeding do not qualify for quashment of criminal charges for the following reasons:
Firstly, Ashoo Surendra Nath Tiwari case (Supra) does not lay down an inflexible rule of law that in all cases of exoneration in a departmental proceeding, as a necessary corollary his discharge or acquittal should follow in a criminal case. What has been held is that where the criminal case is an off-shoot of a departmental proceeding and there is exoneration on merits that is allegation is found to be not sustainable at all and the person is held innocent, criminal prosecution on the same set of facts and evidence cannot be allowed to continue. The underlying principle being the higher standard of proof in criminal cases and once charge in a departmental proceeding fails, where the standard of proof is low, the outcome in a criminal case becomes a foregone conclusion. Their Lordships reiterated the principles of law as held in [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 :
(2011) 2 SCC (Cri) 721] , SCC p. 598) in the following words:
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;7
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
The principles laid down in this case include that the finding in adjudication proceedings is not binding on the proceeding for criminal prosecution and that adjudication proceeding and criminal proceedings are independent in nature to each other. Therefore, it will depend on facts and circumstances of each case, whether departmental proceeding shall result in discharge/ acquittal or not It has been held in State v. M. Krishna Mohan, (2007) 14 SCC 667 that it cannot be said that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial.
In (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685, their Lordships observed The categories of cases by way of illustrations, wherein power could be exercised either to prevent the abuse of the process of the court or otherwise to secure the ends of justice read as follows: (Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , SCC pp. 378-79, para 102) "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
8(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The aforesaid illustrations do not contemplate that on exoneration in the departmental proceeding, the criminal prosecution on the same charge or evidence is to be quashed. However, this Court in P.S. Rajya case [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] quashed the prosecution on the peculiar facts of that case, finding that the said case can be brought under more than one head enumerated in the guidelines. This would be evident from paras 21 and 22 of the judgment, which read as follows: (P.S. Rajya case [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 9)
20. It is well settled that the decision is an authority for what it actually decides and not what flows from it.
It will be appropriate to remind ourselves to the observations made in Ashwani Kumar Singh v. U.P. Public Service Commission, (2003) 11 SCC 584 :
913. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para 19) "19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
"Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
Further, in Regina Vs. Gould 2 Q.B. 65 Court of Appeal 1968 observed "In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeals does not in apply the doctrine of stare decisis with the same rigidity as in civil jurisdiction." Secondly, the Joint inspection team included technical person like two surveyors from namely Shri J P Sinha, Head Surveyor and N K Sinha Dy. Surveyor, both from the production department were also involved. Other officers of the Jharkhand Open Cast Project was also called and Shri Rajesh Kumar Sinha, Assistant Survey Officer, was requested to make available all the required plans, Registers and MBs for taking reference during joint inspection. Merely because a one member committee in the departmental enquiry has questioned the methodology adopted cannot be a ground to quash the charge and the criminal proceeding. It can at best constitute the defence which can be considered at the stage of trial.
Under the aforesaid facts and circumstance of the case, I do not find any merit in the instant petition which stands dismissed.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 26th September, 2022 AFR /Sandeep