Jharkhand High Court
Devendra Kumar Singh vs Central Bureau Of Investigatio on 30 March, 2012
Author: R.R. Prasad
Bench: R.R. Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.999 of 2011
Devendra Kumar Singh ... ... Petitioner
Versus
Central Bureau of Investigation ... ... Opp. Party
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CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate
For the CB I : Mr. Mokhtar Khan, ASGI
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07/30.03.2012: Heard learned counsel appearing for the petitioner and learned counsel appearing for the CBI.
This application has been filed for quashing of the entire criminal proceeding of R.C. Case No.19A of 2008(R) including the order dated 30 th October, 2010 (Annexure-3) whereby and whereunder learned Special Judge, CBI, Ranchi, has taken cognizance of the offences punishable under Section 120B read with Section 420, 468, 471 of the Indian Penal Code and also under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act.
Before adverting to the submissions advanced on behalf of the Opp. Parties, the facts of the case giving rise to this application need to be taken notice of.
The Addl. Superintendent of Police, CBI, ACB, Ranchi lodged a case alleging there that a decision was taken by the CMD, Mecon to have open tender for the work of repair and painting of the buildings at Shyamali Township but this petitioner, in connivance of Mr. Tapan Kumar Ghosh, G.M.(Civil Structural and Architectural), Mr. Aurn Kumar Sharma, E.D. (Commercial and Power) and U. Chakraborty, Dy. G.M. I/c (Civil Section) got the word 'open' changed dishonestly as 'limited' without taking approval from the competent authority for the purpose of showing undue favour to Contractors to whom the works were allotted. Thus it has been alleged that Sri D.K. Singh, Dy. GM (Civil), Tapan Kuamr Ghosh, G.M. (Civil, Structural and Architectural), Arun Kumar Sharma, ED (Commercial and Power), U. Chakraborty, Dy. G.M. I/c (Civil Section), abused their official position and entered into a criminal conspiracy with the private contractors M/s J.P. Rai and P.K. Mishra, and in furtherance of the said criminal conspiracy, undue favour was extended to the private contractors namely M/s J.P. Rai and M/s P.K. Mishra, by way of changing the mode of tender from open to limited and also allowing the modification in the item No. C-7, also in furtherance of the said criminal conspiracy, Sri Jagabandhu Banerjee, Sr. Manager (Civil), Ram Bachan Singh, Sr. Manager (Const.), Shaukat Ali, Manager (Drawing), D. Singh, Manager (Drawing/Civil), Lal Deo Singh, Manager (Const.), Sharad Jaipuriar, AGM (Civil), and S.E. Haque, D.P. Officer, Project Cell, all of MECON Ltd. falsely certified the Running Account Bills/Measurement Sheets reflecting work of dismantling and ratio of sand and cement as 1:4 in favour of M/s J.P. Rai and M/s P.K. Mishra and, thereby the petitioner has committed offences punishable under Section 120B read with Section 420, 468, 471 of the Indian Penal Code and also under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act.
After completion of the investigation, the CBI asked for the order relating to sanction for prosecution by the competent authority i.e. Chairman- Managing Director, Mecon, Shyamali, Ranchi who after going through the materials placed by the CBI, refused to grant sanction vide its order dated 20.02.2010 by holding , which reads as follows:-
The lapses on the part of Shri D.K. Singh, Deputy General Manger, MECON, Ranchi (Accused No.A-1) are more of the nature of precedural lapses and no conclusive evidence could be seen that there had been any conspiracy as alleged to change the decision of calling 'open' tender to that of 'limited tender'. Further, the Inquiry Officer's conclusion in his report dated 01.05.2008 also clearly indicates that reasonable competition was available in the tendering process and no malafide intentions were evident. Accordingly, the report of the Inquiry Officer was accepted and as recommended by the Inquiry Officer, Shri D.K. Singh has already been issued a Letter of Caution.
Subsequently, after seven months, the CBI on the advice of the CVC, again referred the matter to have sanction for prosecution by another person-Chairman-cum-Managing Director-In-charge, who vide its order dated 30th September, 2010, granted sanction for prosecution.
Accordingly, cognizance of the offence was taken on 30th October, 2010 against the petitioner and others. That order is under challenge.
Mr. Kashyap, learned Senior Counsel submits that once, the sanctioning authority refused to grant sanction for prosecution against the petitioner, after taking into account the materials placed by the CBI, the same cannot be reviewed by another officer/successor on the same materials, though the authority who earlier refused to grant sanction or his successor may grant sanction, if a fresh material is made available. Herein in that instant case, the sanctioning authority earlier on 20.02.2010 refused to grant sanction but subsequently, the In-charge, Chairman-cum-Managing Director, Mecon granted sanction without there being any fresh material and as such, the order granting sanction is bad in view of decision rendered in the case of State of Himachal Pradesh v. Nishant Sareen reported in 2011(1) Crimes 47 (SC).
As against this, Mr. Khan, learned counsel appearing for the CBI submits that earlier the authority, who had refused to grant sanction, had not been taken into account all the materials, which had been placed before him rather he had ignored certain materials and by ignoring those materials, sanction was refused and when the I.O. after having suggestion from the CVC, referred the matter again before the sanctioning authority to pass a fresh order, the sanctioning authority granted sanction for prosecution vide Annexure-6 and under this situation, no illegality can be said to have been committed by the authority.
It would be relevant to state the stand, which has been taken by the CBI in his counter affidavit, which is there in para-10 of the counter affidavit filed on 16.02.2012 which reads as follows:-
10. That, after investigation CBI submitted report to the concerned department MECON Limited, Ranchi for grant of Sanction for Prosecution against Devendra Kumar Singh by CMD, MECON, Limited, Ranchi on the basis of material available on the record. The CMD, MECON refused to grant Sanction for Prosecution against Devendra Kumar Singh. On examination by the CBI, grounds mentioned for refusal of sanction for prosecution against the petitioner by then CMD were found to be unjust and insufficient. While refusing the sanction then CMD, MECON referred to the internal enquiries of the department. It was felt that in the internal enquiries all the aspects, looked into by CBI during investigation, were not taken into consideration and hence, the aspect of commission of criminal misconduct was not appreciated.
Since, during CBI Investigation criminality was found which was not considered by CMD, MECON, Ltd., Ranchi while deciding on issuance of sanction for prosecution, the matter was referred to the Chief Vigilance Commission for their examination. At the Chief Vigilance Commission a tripartite meeting was held where Secretary, CVC; Head of Branch & DIG, CBI and Officers from MECON, Limited , Ranchi including the Chief Vigilance Officer, Steel Authority of India Limited who was looking after the work of CVO, MECON were present. The matter pertaining to sanction for prosecution against Devendra Kumar Sigh was deliberated upon at length in the meeting, where all the evidence available against Devendra Kumar Singh were discussed and the Secretary, CVC after appreciating the evidence put forth by the CBI and after being fully convinced about the role of Devendra Kumar Singh in the above case issued advice and consequent upon the sanction for prosecution was granted against Devendra Kumar Singh by the competent authority the then CMD, MECON and thereafter the charge sheet was submitted.
Subsequently, supplementary counter affidavit has been filed by the CBI on 05.03.2012 wherein it was stated in paras-7 & 8, which reads as follows:-
7. Scrutiny of the Order issued by CMD, MECON, Ltd. Ranchi, indicated that while deciding on the matter of issuing Sanction for Prosecution due consideration was not given to the facts and circumstances discussed in the CBI's Report and its enclosures i.e. copies of relied upon documents and statements recorded U/s. 161 Cr.P.C.
(a) It was referred in the subject order that on the basis of a report submitted by CVO, MECON Ltd., Ranchi the CMD, MECON, Ltd.
Ranchi had instituted an inquiry, which was conducted by Shri J. Mathew, GM (TS & Power), MECON, Ltd., Ranchi The conclusion of the enquiry conducted by Shri J. Mathew was quoted in the order in question, with highlighting following points:-
(i) There were no back up papers or approvals available for revising the mode of tendering i.e. from 'open' to 'limited' tenders.
(ii) Open tenders are resorted to attract better competition during tendering process.
(iii) Tender papers were issued to 09 (nine) tenderers and offers were received from 06 tenderers.
(iv) It can be concluded that reasonable competition was available in the tendering process and no malafide intention was evident.
8. From the facts mentioned above it is evident that following vital points surfaced during CBI Investigation and even in the quoted report of Shri J. Mathew were not considered by the CMD MECON:
(a) The fact that, limited tenders were called in place of open Tender as approved by CMD, MECON Ltd., Ranchi was not in the knowledge of CMD, MECON., Ltd. Ranchi. It was only through the CVO's Report, he could know that the mode of calling of tender was revised without his knowledge. It also goes on to establish that the obliteration of the mode of calling tender was deliberate and not just occurred due to clerical error.
(b) CMD, MECON while refusing sanction did not consider that making obliteration in an approved note was the act of forgery by the petitioner. The obliteration has been established by the oral and documentary evidence and duly corroborated by the Government Examiner of Questioned documents.
(c) It has also been mentioned in the order of the CMD quoting internal enquiry of Shri J. Mathew that, tender papers were issued to 09 (nine) tenderes and offers were received from 06 tenders and also that reasonable competition was available in the tendering process and no malafide intention was evident. CBI investigation has found that the tender papers were issued to only 07 tenderers not 09. All the tenderers were arbitrarily selected by the petitioner himself and most of them have stated on record that they were not financially capable of handling such a big contract. While deciding on the issue of Sanction for Prosecution against the petitioner this fact was also not considered by the CMD, MECON, Ranchi.
(d) Even Shri J. Mathew in his enquiry did not exonerate the petitioner and concluded that for changing the mode of tender no approval was taken. Shri J. Mathew concluded its report by quoting "The above does not absolve the Project Co-ordinator from not following the correct practices and obtaining written approvals from the management while changing the process of tendering itself".
From perusal of the statements made in the counter affidavit and supplementary counter affidavit filed on behalf of the CBI on 16.02.2012 and 05.03.2010 respectively, it is quite evident that the stand which has been taken by the CBI, is that the certain materials were never taken into account by the earlier authority, who refused to grant sanction and thus, it never appears to be case that any fresh materials were placed before the sanctioning authority, who on such fresh materials, granted sanction for prosecution.
Thus, question does arise as to whether order refusing sanction can be reviewed or recalled by the subsequent authority without having any fresh material. The issue no longer remains res-integra as Their Lordships in a case referred to above, has already answered it in para-12 of the decision which reads as follow:-
It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.
Thus, it has been categorically held in the decision referred to above, that only on the fresh material collected by the I.O., subsequent to earlier order and placed before the sanctioning authority, the order refusing sanction can be reviewed in the light of the fresh material.
As, I have already stated that nothing seems to be there that the authority, subsequently granted sanction for prosecution, on the basis of a fresh material collected after the sanction for prosecution was refused, order granting sanction is certainly bad and hence, the order dated 30.10.2010 under which cognizance of the offence has been taken against the petitioner on such sanction, is certainly illegal and is hereby set aside.
Accordingly, this application is allowed.
(R.R. Prasad, J.) Ravi/-