Madhya Pradesh High Court
Rajbeer Singh Bhadoriya vs The State Of Madhya Pradesh on 23 February, 2017
Author: N.K. Gupta
Bench: N.K. Gupta
1
CRR.113/16, CRR.1074/15, CRR.1224/15,
Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH: AFR
HON'BLE SHRI JUSTICE N.K. GUPTA
& (Judge)
HON'BLE SHRI JUSTICE ANAND PATHAK
CRIMINAL REVISION NO.113 OF 2016
Karunesh Dandotiya
Vs.
State of M.P. and others
CRIMINAL REVISION NO.1074 OF 2015
Karunesh Dandotiya
Vs.
State of M.P. and others
CRIMINAL REVISION NO.1224 OF 2015
Premnarayan Mahaur and others
Vs.
Lokayukt.
Mcrc. No.11671 OF 2016
Ram Shankar Sharma
Vs.
The State of Madhya Pradesh
Mcrc. No.11673 OF 2016
Rajbeer Singh Bhadoriya
Vs.
The State of Madhya Pradesh
&
Mcrc. No.13123 OF 2015
Mohan Nigotiya
Vs.
The State of Madhya Pradesh
2
CRR.113/16, CRR.1074/15, CRR.1224/15,
Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16
Shri N.K. Gupta, learned Senior Counsel with Shri Ravi
Gupta, learned counsel for applicant - Mohan Nigotiya
(Mcrc No.13123/15)
Shri R.K. Sharma, learned counsel for the applicants in
Crr.1224/15, Mcrc No.11671/16 & Mcrc No.11673/16.
Shri R.K. Shukla, learned counsel for the applicant in
Crr.113/16.
Shri H.K. Shukla, learned counsel for the applicant in
CRR.1074.15.
Shri K.L. Gupta, learned Special Prosecutor, for the
State/respondent.
ORDER
(23/02/2017) Per Justice N.K. Gupta:
Since all the aforesaid revisions and petitions under Section 482 of the Code of Criminal Procedure (for brevity "the Code") are connected with and arise out of the common charge-sheet in Crime No.101/2012 registered at Police Station S.P.E, Bhopal (M.P.), therefore, they are decided by the present common order.
(2) Criminal Revision No.113/2016 has been filed by applicant- Karunesh Dandotiya who was posted as Chief Municipal Officer in Municipality of Gohad, District Bhind (M.P.) after 30.05.2000, against the order dated 04.01.2016 whereby charges of offence under Section 13(1)(d)(ii) read with Section 13(2) of the the Prevention of Corruption Act (for short "the PC Act") and under Section 120-B of IPC have been framed.3
CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 (3) Applicant- Karunesh Dandotiya has also challenged the order dated 27.10.2015 passed on his application under Section 227 of the Code in Criminal Revision No.1074/2015.
(4) Criminal Revision No.1224/2015 has been filed by applicant- Premnarayan Mahaur, the then President of Municipality, Gohad, District Bhind (M.P.), Jai Sharma Bhardwaj, CMO and Swaroop Narayan Sharma In- charge CMO of the said Municipality challenging the order dated 29.10.2015 whereby charges were appended against these applicants by the trial court which were similar to the applicant- Karunesh Dandotiya.
(5) Mcrc No.11671/2016 is the petition under Section 482 of the Code filed by applicant- Ram Shankar Sharma who was the contractor of the work assigned to him, to quash the proceedings of the trial court. (6) Mcrc No.11673/2016 is the petition under Section 482 of the Code filed by applicant- Rajbeer Singh Bhadoriya being Sub-Engineer in the said Municipality, to quash the proceedings of the trial court along with the charge-sheet.
(7) Mcrc No.13123/2015 is filed by applicant - Mohan Nigotiya, the then Vice-President of Municipality, Gohad, District Bhind (M.P.) under Section 482 of the Code to quash the charge-sheet and the proceedings of Special Case No.6/2015, pending before the trial court. (8) Facts of the case, in short, are that on 28.08.2000, complainant Murarilal Jatav filed a complaint before the Lokayukt, Bhopal (M.P.) that a heavy corruption was 4 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 done in grant of contract for digging hand-pumps by the office-bearers of the Municipality, Gohad, District Bhind (M.P.). Initially, the enquiry was done by the technical branch of that office. According to that complaint, the Municipality had decided to dig one hand-pump in each ward (for 18 wards) and therefore, tenders were invited vide advertisement dated 30.05.2000 and various tenders were received. The lowest tender was given by one Naveen Kankar which was 6.8% above the rate of CSR. That bid was submitted by contractor Naveen Kankar with the request that at the time of submission of the bid he was not the A Grade contractor but he had applied for the same and in anticipation he filed the bid. On getting three bids for the aforesaid work, the lowest bid was of Naveen Kankar which was 6.8% above the CSR; second lowest bid was of the applicant Ram Shankar Sharma which was of 140% above CSR and the third was of one Anees Khan 148% above CSR. (9) Thereafter, on 30.05.2000 itself the bidder Naveen Kankar, contractor, submitted an application that sufficient time would be required for his registration as A Grade contractor and therefore his bid be rejected. The Municipality by resolution dated 06.06.2000 cancelled the bid of Naveen Kankar and directed to return his earnest money. Instead of accepting the bid submitted by Ram Shankar Sharma entire bids were rejected and two different resolutions bearing numbers 48 and 49 were passed on 06.06.2000. It was not explained by the Municipality as to why the second lowest bid was not accepted. No reason was mentioned 5 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 for cancellation of various bids. Sub-Engineer Rajbeer Singh Bhadoriya recommended the return of Rs.14,400/- earnest money submitted by contractor Naveen Kankar and Mr. Jai Sharma Bhardwaj, the then CMO passed the order to return the amount of bid. Again on 14.06.2000 when tenders were called, four bids were received. Contractor Ram Shankar Sharma submitted a bid of 214% above CSR and the Municipal Council in its meeting dated 26.08.2000 passed the Resolution No.67 and accepted the bid of contractor Ram Shankar Sharma which was 214% above the CSR whereas a few days back Mr. Ram Shankar Sharma contractor had submitted a bid of 140% above CSR. On 31.03.2001, by Resolution No.54, a decision was taken that due to possibility of drought bore-well was to be dug in size of 5 inches and therefore bid was to be accepted more than 200% above CSR. Similarly, by resolution dated 26.08.2000, the Municipality accepted the bid at the rate of 214% above the CSR. Thereafter, negotiation proceedings were initiated and the bid was accepted at the rate of 197% above CSR. On 03.04.2001, work order was issued. After completion of four years on 12.12.2004, a sum of Rs.14,33,548/- was paid to the contractor Ram Shankar Sharma. (10) According to the guidelines issued by the department of Public Health Engineering which were existing at the relevant time, the maximum rate for digging of a hand-pump was 33% above CSR and therefore it was noticed that excess payment of Rs.8,26,148/- was done by the various office bearers of 6 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 the Municipality, Gohad, District Bhind (M.P.) to contractor Ram Shankar Sharma. In the enquiry, it was found that Premnarayan Mahaur, the then President, Mohan Nigotiya, the then Vice-President, Jai Sharma Bhardwaj, Karunesh Dandotiya CMOs and Swaroop Narayan Sharma Incharge CMO of Municipality, Gohad, District Bhind (M.P.) participated in the aforesaid conspiracy whereas Rajbeer Singh Bhadoriya being Sub-Engineer in the said Municipality recommended the matter before the Municipal Committee and applicant Ram Shankar Sharma was the contractor who obtained the extra payment. Then the matter was registered before the SPE and investigation was started. On investigation, it was found that the allegations were correct and thus after due investigation the charge- sheet was filed against the accused persons/applicants. (11) We have heard the learned counsel for the parties. (12) First of all, Criminal Revision No.1074/2015 filed by applicant Karunesh Dandotiya is to be considered in which he has challenged the order dated 27.10.2015 passed by the Special Judge, Bhind (M.P.) and decided the application under Section 227 of the Code. The provision contained under Section 227 of the Code is the procedural provision. It does not create any specific right in favour of the accused to move an application under Section 227 of the Code. The text of Section 227 of the Code is reproduced as under:
227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the 7 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
The provision under Section 227 of the Code should be read along with Sections 226 and 228 of the Code. According to the provisions contained under Section 226 of the Code, before the Sessions Court, the prosecutor shall open its case and thereafter according to Section 227 of the Code the trial court shall hear the learned counsel for the parties on the question of framing of charges and if it is found that there is no sufficient ground for proceedings against the accused then that accused may be discharged. If sufficient ground is found then charges would be framed. It would be for the Sessions Court under Section 228 of the Code that if it is found that the case was not exclusively triable by the Court of Session then the matter may be remanded to the Chief Judicial Magistrate. The procedure which is to be adopted by the Sessions Court is a continuous procedure under Sections 226, 227 and 228 of the Code. Hence, the order is to be passed by the Sessions Court relating to framing of charges or discharge after hearing the learned counsel for the parties at the time of framing of charges whereas the prosecution has opened its case under Section 226 of the Code. Hence, the accused has no right to move an application under Section 227 of the Code separately 8 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 because when court hears the learned counsel for the parties at the time of framing of charges after opening of a case by the prosecution then order of discharge is passed if it is required. It is for the trial court not to decide the application under Section 227 of the Code separately but it should be decided after hearing the learned counsel for the parties for framing of charges. Hence, if the trial court has decided the application under Section 227 of the Code separately then the matter of applicant Karunesh Dandotiya cannot be considered twice and therefore his objection shall be considered in Criminal Revision 113/2016 which is filed against the order of framing of charges. Hence, Criminal Revision 1074/2015 shall not be decided separately.
(13) Shri R.K. Sharma, learned counsel, has raised preliminary objection on behalf of various applicants that according to the provision contained under Section 8(c) of the M.P. Lokayukta Evam Up-Lokakyut Adhiniyam, 1981 (for brevity "The Act, 1981") the Lokayukt could not start the enquiry after expiration of period of five years from the date on which said corrupt conduct was complained of. For ready reference, provision of Section 8(c) of the Act, 1981 is reproduced as under:
"8. Matter not subject to enquiry:- The Lokayukt or an Up-Lokayukt shall not inquire into any matter:-
(a) XX XX XX
(b) XX XX XX
9
CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16
(c) relating to an allegation against a public servant, if the complaint is made after expiration of a period of five years from the date on which the conduct complained against is alleged to have been committed."
However, the preliminary objection advanced by the learned counsel for the applicants cannot be accepted. The provision of Section 8(c) and 12 of the Act, 1981 should be read simultaneously. When an enquiry is initiated by Lokayukt then the report is to be submitted under Section 12 of the Act, 1981. In the present case, no report was submitted by the Lokayukt to the State Government. It would be apparent that the charge-sheet was filed by Special Police Establishment (Lokayukt), Gwalior (M.P.). In this connection, provisions of the Madhya Pradesh Special Police Establishment Act, 1947 may be perused where such police force has been enacted to deal with the corruption cases and it was not mentioned in that enactment that every investigation which is done by the Special Police Establishment shall be governed by the provisions of the Act, 1981. The Special Police force was constituted prior to the constitution of the post of Lokayukt and Up-Lokayukt and such force was empowered to investigate the matter as a police officer, hence, for limitation purposes, the provision contained under Section 468 of the Code is applicable. Since the offence under Section 13(2) of the PC act is punishable by five years' sentence and therefore no fixed period of limitation was prescribed under Section 468 of the Code and thus, 10 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 there was no binding effect of provision under Section 8(c) of the Act, 1981 on the S.P.E though SPE was working for Lokayukt or Up-Lokayukt. Hence, preliminary objection raised by the learned counsel for the applicants cannot be accepted.
(14) The learned Senior Advocate appearing for applicant Mohan Nigotiya has submitted that the meeting was called by Municipality and resolution is passed then councillor is not responsible for the result of that meeting. In this connection, learned Senior Advocate has invited the attention of this Court on the provisions contained under Sections 51, 52 and 63 of the M.P. Municipalities Act, 1961. Section 51 of the said Act deals with the powers and duties of the President whereas Section 52 deals with the functions of Vice- President and Section 63 deals with the decision on questions by majority of votes and therefore it is submitted that the President and the Vice-President of the Municipality, Gohad, District Bhind (M.P) were bound to follow the majority view. However, in this connection, the provisions under Sections 81 and 83 of the M.P. Municipalities Act, 1961 may also be considered. Under Section 81 of the M.P. Municipalities Act, there is a provision relating to proceedings of meetings to be deemed to be good and valid and under Section 83 of the said Act a provision was enacted about the responsibility of councillors for misapplication of municipal funds. The President and Vice-President were also duty bound because basically they were the councillors. Such provisions of passing of resolutions 11 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 should also be considered in Rule 139, 141 and 142 of the Madhya Pradesh Municipal Accounts Rules, 1971. According to these rules, if any lowest tender is not accepted then reason of such non-acceptance should be recorded and in case of acceptance of tender financial status of the contractor may be also be taken into consideration. In the present case, it would be apparent that initially the contractor Ram Shankar Sharma had floated a bid which was 140% above CSR and after a few months he submitted a bid which was 214% above CSR. There was no reason shown by the authorities of Municipality in their resolution to sanction such tender without asking any reason on that enhancement in amount of bid. Learned counsel for the applicants have submitted that in new tender, casing was to be inserted in the dug holes and size of the tube-well was increased. However, it was for the applicants to prove that whether there was any previous tender or the recognized rates of Public Health and Engineering Department. On giving the contract for digging the hand-pumps whether casing was not required to be inserted in tube-well or there is no CSR separately fixed for tube-well having width of 5 inches. When the rate of 34% above CSR was recognized by the department of Public Health and Engineering then it was for the Municipality to mention the reasons for accepting such higher rate at the time of acceptance of bid. If entire documents are considered then it is apparent that in the month of August Municipality has approved the higher rate tender of digging hand-pumps whereas in the month of August, 12 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 there was no crises of water and if water table was at higher position then the necessity of digging of hand pumps could not be established by the Municipality and its authorities. It was for the applicants to prove that in that year no rains took place in the area and there was a position of drought even in the month of August but unfortunately no such document has been produced in any of the petitions in the present matter. (15) It is to be made clear that if any revision is filed against the order of framing of charges then the revisionary court has to step into the shoes of the trial court and the trial court while framing of the charges cannot appreciate the evidence and on the basis of the evidence collected, the charges are to be framed. On the other hand if a petition under Section 482 of the Code is filed then the court is competent to look into the defence documents and it may be considered that whether the alleged crime committed by the particular accused is found to be constituted or not. Some of the applicants have filed the revisions and in those revisions no defence evidence could be considered. These applicants/CMOs have submitted through their counsel that at the time of aforesaid corruption they were not posted as CMOs in the Municipality, Gohad, District Bhind (M.P.), however, there is no document in the charge-sheet to show about their tenure and their participation in the particular part of the crime. Therefore, the documents which are filed in the revisions cannot be considered at this stage. In case of a criminal revision, no defence documents can be 13 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 entertained.
(16) By perusal of the evidence collected by the prosecution, it is apparent that the President of the Municipality Gohad, District Bhind and other CMOs of that institution did not proceed according to the provisions of Municipalities Act and the M.P. Municipal Accounts Rules, 1971. They have caused loss to the municipality unnecessarily. Learned Senior Counsel for the Vice-President Mr. Mohan Nigotiya has submitted that the overt act of Vice President or President does not fall within the purview of Section 13(1)(d)(ii) of the PC Act. In this connection if that provision is perused which is reproduced hereinbelow then it is clear that if a public servant being the public servant obtains for himself or for any other person any valuable thing or pecuniary advantage by abusing his position then such public servant shall be liable for the offence under Section 13(2) of the PC Act due to violation of Section 13(1)(d)(ii) of the PC Act:-
13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) if he,--
(i) xx xx xx
(ii) by abusing his position as a public
servant, obtains for himself or for
any other person any valuable thing
or pecuniary advantage;
14
CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 In the present case, by passing the resolutions in favour of the contractor at higher rate, the President and Vice-
President, prima facie, abused their position to provide pecuniary advantage to the contractor Ram Shankar Sharma and therefore it cannot be said that no offence under Section 13(1)(d)(ii) read with Section 13(2) of the PC Act is made out against these persons.
(17) Under these circumstances, where there is a sufficient evidence against the concerned applicants who have filed the criminal revisions against the order pertaining to framing of charges, hence, there is no illegality or perversity done by the trial court in framing of charges against the concerned applicants. Hence, the revisionary powers of this court cannot be exercised in their favour who have filed the above criminal revisions. (18) So far as the petitions preferred under Sections 482 of the Code are concerned where applicant Mohan Nigotiya, the then Vice President of Municipality, Gohad, District Bhind (M.P.) has filed a petition under Section 482 of the Code, the learned Senior Counsel for the applicant Mohan Nigotiya has submitted that inherent powers of this Court are wide and the crime registered against applicant Mohan Nigotiya may be quashed. In this connection, learned Senior Counsel has referred the judgments passed by the Hon'ble the Apex Court in the matters of "Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao"
[(2012) 9 SCC 512] and "Surinder Kaur Vs. State of Haryana" [(2014) 15 SCC 109]. In these cases, Apex Court has accepted the petitions under Section 482 of 15 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 the Code.
(19) If the factual position of those cases is considered then it is quite different from the present case. In those cases, the accused were added on technical grounds and therefore their petitions were accepted. In the present case, Mr. Mohan Nigotiya was the then Vice-
President and while passing of various resolutions, no care was taken by the Vice-President as a councillor or Vice-President to state reasons in the resolution or non- acceptance of tender given by Ram Shankar Sharma himself when it was given at the rate 140% above the CSR and thereafter again after a few months his bid was accepted which was 214% above the CSR. No specific explanation was given in the resolution that in second tender Ram Shankar Sharma had promised to provide extra arrangement like the apparatus of hand- pump or casing to be added inside the bore-well. Hence, prima facie, it cannot be said that no offence was committed by the Vice President Mr. Mohan Nigotiya. Thus, there is no substance in the petition under Section 482 of the Code filed by applicant Mohan Nigotiya.
(20) In this connection, one technical error may also be pointed out in Criminal Revision No.1224/2015 that the said revision was filed against the Lokayukt whereas the charge-sheet was filed by SPE, Lokayukt which is a different institution. The Lokayukt can file a report under Section 12 of the Act, 1981 before the State Government. There is no provision that a charge-sheet shall be filed by the Lokayukt or Up-Lokayukt hence the 16 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 revision was to be filed against SPE Lokayukt which was the investigating agency who has filed the charge- sheet against the applicants, however, since the matter is considered as Special Case No.06/2015 and the Special Prosecutor was defending other revisions and petitions, therefore, aforesaid technical error is ignored while considering the revisions of the applicants Premnarayan Mahaur, J.S. Bhardwaj and Swaroop Narayan Sharma.
(21) So far as the petition filed by Ram Shankar Sharma is concerned, he was the contractor who enjoyed the fruits of the aforesaid corruption though he was not a public servant but he was involved in a conspiracy along with public servants, therefore, he can be prosecuted for the various charges of the PC Act with the help of Section 120-B of IPC, hence, prima facie, it cannot be said that no offence is made out against Ram Shankar Sharma and therefore his petition filed under Section 482 of the Code cannot be accepted.
(22) Various applicants who were the CMOs of Municipality, Gohad, District Bhind (M.P.) and who have preferred the petition under Section 482 of the Code or a revision against the order of framing of charges have a common contention that they were the subordinates to the councillor and therefore they had no role in passing any resolution. If the Municipal Council had passed any resolution then the concerned CMO was not responsible, however, such argument cannot be accepted in the light of the provisions contained under Section 69 of the M.P. Municipalities Act, 1961.
17CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 According to that provision, the CMO is required to remain present in every meeting of the council and he has to explain or make a statement in regard to any subject under discussion at such meeting and therefore according to this provision it was the duty of the CMO to explain the correct position of tender and work before the council and it was for him to mention the entire reasons for acceptance of a particular tender, hence, though he was under the control of the President of the Municipality, he cannot be absolved from his liability. Prima facie, when tenure of various CMOs is not established beyond doubt that he was not involved in the aforesaid scam it cannot be said that no offence is made out against these CMOS and therefore, inherent powers of this Court under Section 482 of the Code cannot be invoked in favour of such CMOs. (23) Lastly, the matter of sub-engineer Rajbeer Singh is to be considered. Sub-Engineer is an officer appointed in the Municipality as per the provisions contained under Section 88 of the M.P. Municipalities Act, 1961 and according to his position he was the servant of Municipal Council. According to the provisions of Section 97 of the M.P. Municipalities Act every employee of council shall be personally liable for the loss, waste and misapplication or misappropriation of any money or other property of the Municipality. He is required not to be interested in any contract with Municipal Council. Being technical head, it was his duty to put a note before the Chief Municipal Officer about the availability of work and approximate expenditure on 18 CRR.113/16, CRR.1074/15, CRR.1224/15, Mcrc.13123/15, Mcrc.11671/16 & Mcrc.11673/16 that work if he did not discharge his duties then prima facie it would be presumed that he was interested in giving the contract to the contractor Ram Shankar Sharma at higher rate. Prima facie, it cannot be said that applicant Rajbeer Singh was not involved in the aforesaid crime and hence at this stage inherent powers of this Court under Section 482 of the Code cannot be invoked in his favour.
(24) After considering the aforesaid discussions, prima facie, it appears that it is for the applicants to justify the contract given to the contractor Mr. Ram Shankar Sharma at higher rate than the prescribed rate of Public Health Engineering Department and to cause the loss to the Municipality of Gohad, District Bhind (M.P.) (25) Under these circumstances neither any revision nor any petition under Section 482 of the Code can be accepted. Consequently all the petitions preferred under Section 482 of the Code and the revisions are hereby dismissed.
(26) Though no discussion of evidence has been done by this Court while passing this order, however, if any observation is found then the trial court shall not get prejudiced from that observation.
(27) A copy of the order be sent to the court below for information.
(N.K. Gupta) (Anand Pathak)
Judge Judge
(23/02/2017) (23/02/2017)
pd