Supreme Court - Daily Orders
State Of Bihar vs Dhirendra Prasad Shrivastava on 9 December, 2014
Bench: Ranjan Gogoi, Rohinton Fali Nariman
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ITEM NO.4 COURT NO.8 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.) NO(S). 6075/2008
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 21/02/2008
IN CRLM NO. 3908/2007 PASSED BY THE HIGH COURT OF PATNA)
STATE OF BIHAR PETITIONER(S)
VERSUS
DHIRENDRA PRASAD SHRIVASTAVA RESPONDENT(S)
(WITH APPLN. (S) FOR STAY AND OFFICE REPORT)
WITH
SLP(CRL) NO. 6085/2008
(WITH APPLN.(S) FOR STAY AND OFFICE REPORT)
SLP(CRL) NO. 6437/2008
(WITH APPLN.(S) FOR STAY AND OFFICE REPORT)
SLP(CRL) NO. 3154/2009
(WITH APPLN.(S) FOR STAY AND OFFICE REPORT)
Date : 09/12/2014 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s) Mr. Nagendra Rai, Sr. Adv.
Mr. Chandan Kumar, Adv.
Mr. Gopal Singh, Adv.
For Respondent(s)
Mr. Amit Pawan, Adv.
Mr. Ranjan Mukherjee, Adv.
Mr. S. Bhowmick, Adv.
Mr. Neeraj Shekhar, Adv.
Signature Not Verified
Digitally signed by
Vinod Lakhina
Date: 2014.12.12
16:49:26 IST
Reason:
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UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are allowed in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI]
COURT MASTER COURT MASTER
[SIGNED ORDER IS PLACED ON THE FILE] 1 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2551 OF 2014 [Arising out of Special Leave Petition (Criminal) No.6075 of 2008] STATE OF BIHAR ...APPELLANT VERSUS DHIRENDRA PRASAD SHRIVASTAVA ...RESPONDENT WITH CRIMINAL APPEAL NO.2552 OF 2014 [Arising out of Special Leave Petition (Criminal) No.6085 of 2008] STATE OF BIHAR ...APPELLANT VERSUS VASHISHTH NARAIN SINGH ...RESPONDENT WITH CRIMINAL APPEAL NO.2553 OF 2014 [Arising out of Special Leave Petition (Criminal) No.6437 of 2008] STATE OF BIHAR ...APPELLANT VERSUS RAMDEEP SINGH ...RESPONDENT WITH 2 CRIMINAL APPEAL NO.2554 OF 2014 [Arising out of Special Leave Petition (Criminal) No.3154 of 2009] STATE OF BIHAR ...APPELLANT VERSUS RAMA KANT SINGH ...RESPONDENT ORDER
1. Leave granted in all the Special Leave Petitions.
2. The challenge in these appeals is against a common judgment and order dated 21st February, 2008 passed by the High Court of Judicature at Patna, by which the continuation of Special Case No.30 of 2006 in the Court of Special Judge, Vigilance at Patna (corresponding to Laheri P.S. Case No.88/2006) has been interdicted by the High Court in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code”).
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3. The aforesaid criminal proceeding against the respondents was registered under Section 406, 409, 420, and 120B of the Indian Penal Code, 1860 (for short “IPC”) and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
4. The First Information Report (“FIR” for short), on the basis of which the case against the respondents accused was registered was lodged on 24th June, 2006. Upon investigation, charge-sheet was filed against the respondents accused on 8th March, 2007 finding, prima facie, allegations of commission of the offences alleged. It may be noticed, at this stage, that the filing of the FIR followed by the charge-sheet was preceded by a detailed vigilance inquiry which was ordered as far 4 back as on 6th July, 2001 and report whereof was submitted by the Authorized Officer on 17th February, 2004. In the FIR lodged as well as in the charge-sheet filed against the respondents accused, there is a detailed reference to the report of the vigilance inquiry indicating the findings recorded in support of the charges levelled against the accused.
5. From the aforesaid documents it appears that the substratum of the prosecution case is that the accused, while working as Executive Engineer, Assistant Engineers and Junior Engineers in the Road Construction Department, Government of Bihar, were connected with the work of strengthening and widening of Biharsharif Ekangarsari Telhara Road in 5 Nalanda Road Construction Division executed by the accused contractor. The further allegation against the accused respondents is that they had conspired with the contractor to embezzle Government funds and permitted withdrawal of payments by the contractor in spite of the works not being executed at all and wherever executed, the same was unsatisfactory and not in accordance with the specifications spelt out. The further allegation against the accused respondents was lack of supervision and failure to deduct the penal rates of recovery for excess allotment of bitumen and also failure to deduct sales tax and royalty. All the aforesaid deductions were not made at the time of passing of the Running bills of the contractor which, according to the prosecution, facilitated the unauthorized 6 receipt of the amounts by the contractor. The accused, therefore, were alleged to be in collusion with each other in commission of the offences under Section 406, 409, 420, 120B of the IPC and in commission of the offences alleged under the Prevention of Corruption Act, 1988, as noticed above.
6. Specifically, a reading of the charge-sheet dated 8th March, 2007 would go to show that the widening of the road work was not as per specification and that the quality of the work suffered from serious irregularities which was, in addition to the Vigilance Officer, confirmed by the Zonal Superintending Engineer who had also conducted an inspection. The allegations of supply of excess bitumen; failure to recover excess cost despite 7 payments made in the running bills and also the failure to recover royalty and sales tax without deduction in the running bills were all mentioned to have been, prima facie, established in the course of the investigation of the FIR on the basis of which the charge-sheet was submitted before the Competent Court.
7. It is in the light of the aforesaid facts revealed by the investigation carried out in respect of the offences alleged that the liability of the accused respondents to face a full-scale trial was required to be determined by the High Court. The contours of the powers of the High Court to make such determination, at the stage when it was called upon to do so, is well known 8 and would not require a reiteration. Such power under Section 482 of the Code of the High Court is severely circumscribed. The result and the findings of investigation will have to be accepted as correct in their entirety and it is against such a backdrop that the necessity of a regular trial against the accused respondents will have to be determined. The truth or veracity of the allegations cannot be agitated or gone into at that stage. If, judged by the aforesaid standard the culpability of the accused is, prima facie, made out, the High Court will have no jurisdiction to interdict the proceedings.
8. From reading of the order of the High Court, it is evident is that there 9 are three particular grounds on which the High Court had thought it proper to quash the criminal proceeding against the respondents. The first, namely, that there is no allegation about the quality of the work executed by the contractor appears to be plainly contrary to what has been elaborately recorded at each stage of the proceeding against the accused leading to the filing of the charge-sheet dated 8th March, 2007. In fact, from a reading of the FIR and the charge-sheet, what we find is that failure to execute the work and substandard quality of work, wherever executed, is the essence of the charges levelled against the accused with the further allegation that the contractor was allowed payment without taking into account the quantity and quality of the work, which facts gave rise to a, prima 10 facie, case against the accused with regard to embezzlement of Government funds. The High Court, therefore, was plainly incorrect in recording the conclusion that “so far the standard of quality of the work is concerned, there was no allegation”
9. The second ground on which the High Court had thought it fit to quash the criminal proceeding against the accused is that the charges payable for excess bitumen as well as royalty and sales tax were all deposited prior to the institution of the criminal case. In this regard, the High Court took note of a Writ Petition i.e. C.W.J.C. No.6773 of 2006 filed by the contractor challenging the demand for payment for charges on account 11 of excess bitumen as raised by the Department. The High Court took note of the fact that the aforesaid writ proceeding was allowed; the demand raised by the Department was interfered with; and directions were issued to raise a fresh demand in accordance with the relevant clause of the contract i.e. clause 12. Relying on the fact that the aforesaid charges were paid before the commencement of the criminal case, the High court thought it proper to interdict the proceedings on the ground that the allegations made to the above effect were virtually non-existent.
10. In recording the aforesaid conclusion the High Court seems to have missed the essence of the charge so far as 12 excess bitumen and royalty and sales tax is concerned. The case of the prosecution against the accused insofar as the aforesaid facet of the case is concerned is that such charges on account of excess bitumen and royalty/sales tax should have been recovered from the running bills of the contractor and payment of such bills should not have been made without effecting recovery. Payments without making deductions, according to the prosecution, was a step in the process of embezzlement of Government funds in connivance with the contractor. The aforesaid part of the prosecution case obviously had escaped the notice of the High Court and the charge in question was construed in a manner not alleged by the prosecution.
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11. The third principal ground on which the High Court thought it proper to grant relief to the respondents accused is that in a departmental proceeding instituted against the respondents on the same charges, the respondents were exonerated. Relying on a decision of this Court in P.S. Rajya v. State of Bihar [(1996) 9 SCC 1], the High Court construed the ratio of the aforesaid decision to mean that in a situation where a departmental proceeding against an accused is launched and the accused is exonerated therein, the criminal proceeding on the same charges must necessarily fail and, therefore, should be interdicted. While relying on P.S. Rajya's case supra, the High court failed to notice a subsequent decision of this Court in State v. M. Krishna Mohan [(2007) 14 SCC 667], where 14 this Court had taken the view that exoneration in a departmental proceeding, ipso facto, would not lead to the acquittal of the accused in the criminal trial. Even otherwise, in a three judge Bench decision of this Court in State (NCT of Delhi) versus Ajay Kumar Tyagi [(2012) 9 SCC 685], it has been explained that the decision in P.S. Rajya (supra) must be understood to have been rendered in the facts of the case. The above position is clear from a reading of the report in P.S. Rajya (supra) itself. Furthermore in State (NCT of Delhi) versus Ajay Kumar Tyagi (supra), the position has been explained in the following manner:
“24. Therefore, in our opinion, the High court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have 15 referred to above, that speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and 16 that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy.”
12. For the aforesaid reasons, we are of the view that the High Court was not correct in interdicting the criminal proceeding against the accused respondents which must now be allowed to be proceeded with. We, therefore, set aside the order dated 21st February, 2008 passed by the High Court of Judicature at Patna in Cr. Misc. Nos.3908/2007, 13205/2007, 30150/2006 and 35189/2006 and direct that the proceedings in Special Case No.30 of 2006 shall now be commenced and concluded as expeditiously as possible. 17
13. We make it clear that no part of this order or any observation or conclusion recorded herein shall be construed to be an expression of opinion by this Court on the liability/culpability of the accused which will naturally have to be decided in the trial.
14. The appeals are allowed in the above terms.
....................,J.
(RANJAN GOGOI) ....................,J.
(ROHINTON FALI NARIMAN) NEW DELHI DECEMBER 09, 2014