Rajasthan High Court - Jodhpur
State vs Vimal Kumar & Ors on 3 January, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1275 / 2015
State of Rajasthan
----Petitioner
Versus
1. Vimal Kumar Bairathi S/o Shri Shittal Prasad Bairathi, R/o
23-D Jaganpath Chomu House, Jaipur. At present retired
Chief Engineer, Mahi Project, Banswara.
2. Gopi Chand Asudani, retired Superintending Engineer, Mahi
Project, Banswara
3. Surendra Kumar Gupta S/o Shri Jagdish Prasad Gupta, R/o
E-16, Bapu Nagar Chittorgarh, retired Executive Engineer,
Mahi Project, Banswara
4. Ashok Kumar Jain, owner of Vagad Construction Company,
Banswara.
----Respondents
_____________________________________________________
Mr. Rajesh Bhati, Public Prosecutor, for the State.
Mr. Pradeep Shah, for respondent No.1
Mr. Harish Purohit, for respondent No.2
Mr. Shambhoo Singh, for respondent No.3
Mr. Deepak Menaria, for respondent No.4
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order Reportable 03/01/2018 Petitioner, State of Rajasthan, has preferred this revision petition under Section 379 read with Section 401 Cr.P.C. to challenge order dated 2second of July 2015 passed by Special Judge (Prevention of Corruption Cases), Udaipur (for short, 'learned trial Court'), discharging respondents for offence under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short, 'Act of 1988') and Section 120-B IPC in Criminal Regular Case No.08/2006.
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2. Succinctly stated, facts of the case are that, on 30 th of September 1997, tender was opened for construction work of approach aqueduct at Jagpura under the Mahi Project, Banswara and tender of fourth respondent was accepted. Acceptance of tender of fourth respondent followed execution of an agreement between fourth respondent and Executive Engineer (EEB&RC) on behalf of Governor of the State of Rajasthan, incorporating terms of the contract including commencement and completion of the work. Although as per agreement, PVC water stop seal was to be supplied by the department but due to its non-availability during execution of the work, third respondent Executive Engineer sent a requisition to second respondent Superintending Engineer, whereupon, second respondent made an endorsement that contractor himself may arrange the above item and sent the file to first respondent Chief Engineer through Accounts Officer. Subsequently, first respondent Chief Engineer sent back the file to second respondent Superintending Engineer and he prepared a note-sheet permitting the contractor to purchase item @ 485 per meter and finishing charge 0.55 rupee per cubic meter and added 09.9% premium upon it.
3. Thereafter, first respondent Chief Engineer ordered for additional items of a sum of Rs.23,28,792. Alleging irregularities in execution of work, a case under the Act of 1988 was registered against all the respondents and after completion of investigation all of them were charge-sheeted for the aforesaid offences. In the (3 of 9) [CRLR-1275/2015] charge-sheet, it is spelt out that as per tender agreement cost of these items after adding RST & CST cumulatively comes out to Rs.419 per meter and therefore additional amount of Rs.66.80 per meter paid to the contractor has caused loss to the department to the tune of Rs.2,38,155.
4. Learned trial Court, after hearing arguments of rival parties, by the order impugned, recorded a definite finding that respondents have acted bona fide in the backdrop of exigencies for which they cannot be castigated for any sort of criminal delinquency much less offences slapped against them. That apart, the learned trial Court has also found that no material is available on record to show any sort of criminal conspiracy between the respondents within four corners of Section 120-A IPC so as to frame charge under Section 120-B IPC. With this finding, the learned trial Court discharged all the respondents.
5. I have heard learned Public Prosecutor and the learned counsel for accused-respondents at length and also perused the impugned order as well as materials available on record.
6. Upon examining the materials available on record to make judicial scrutiny of the impugned order, it has come to the fore that estimated loss to the exchequer is not founded on objective considerations. A very significant fact that PVC water stop seals required for construction work of approach aqueduct were to be (4 of 9) [CRLR-1275/2015] supplied by the department and same was not available with the department, therefore, in that background, for facilitating completion of work within the stipulated period, accused respondents No.1 to 3 permitted fourth respondent contractor to arrange the same at his own level.
7. Although, as per specification, stop seal with 305 mm width and 10 mm thick was to be used but the contractor used the stop seal of required width but with thickness 12.5 mm which cost him high. Thus, in that background, estimated loss worked-out in the charge-sheet per se appears to be hypothetical and not founded on the facts which are relevant and germane to the matter. This sort of situation, obviously, persuaded learned trial Court to record a finding that entire charge-sheet is based on mere suspicions, and suspicion howsoever strong it may be, cannot be made a basis for framing of charge. Apart from this, the learned trial Court has also recorded a finding that there is no iota of evidence to show that respondents No.1 to 3 have acted mala fide or utilized corrupt or illegal means to obtain any pecuniary advantage or valuable thing for themselves or any other person much less abused their position as public servant. Learned trial Court has also taken note of a very vital fact that a big project which is to continue for a longer duration, at times, exigencies may arise for procuring items to accomplish the project and to meet such exigencies exercise of discretion by competent authority is in the best interest of the system as such else it may ruin the entire project.
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8. While it is true that corruption is a menace to the Society and corruption amongst public servants is a serious and grave concern, but then for slapping charge of corruption mere misuse of position by public servant is not sufficient and it is only misuse of position by a public servant with dishonest intention that constitutes offence under Section 13(1)(d) of the Act of 1988. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction is a settled rule of construction of a penal section. Therefore, prosecution of a public servant in a corruption case sans any conduct forbidden by law and accompanied by a legally blameworthy attitude and mind, i.e. mens rea is not desirable under the Act of 1988. Launching prosecution in such a situation is therefore a clear case of persecuting a public servant which is never intended by the legislation.
9. My view finds support of an authoritative pronouncement of the Supreme Court in the case of M. Narayanan Nambiar Vs. State of Kerala (AIR 1963 SC 1116), wherein K. Subba Rao, J. (as he then was), while construing meaning and ambit of the words "by corrupt or illegal means or otherwise abusing his position as public servant" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947, which is para materia to Section 13(1)(d) of the Act of 1988, observed:
"The phraseology 'by otherwise abusing his position as public servant' covers acts done otherwise than by corrupt or illegal means by an (6 of 9) [CRLR-1275/2015] officer abusing his position. The gist of the offence under this clause is that a public officer abusing his position, as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse"' means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word 'otherwise' has wide connotation and if no limitation is placed on it, the words 'corrupt', 'illegal and 'otherwise' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part. The contention of the learned Counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the legislature. But in our view such innocuous acts will not be cohered by the said clause. The juxtaposition of the word 'otherwise' with the words 'corrupt or illegal means' and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case."
10. In a latter judgment, the Supreme Court in case of C.K. Jaffer Sharief Vs. State through CBI [(2013) 1 SCC 205], reiterated the same principle. The Court held:
"Adverting to the facts of the present case it has already been noticed that the only allegation against the Appellant is that he had prevailed upon RITES and IRCON to take the four employees in question on "deputation" for the sole purpose of sending them to London in connection with the medical treatment of the Appellant. It is also alleged that neither RITES nor IRCON had any pending business in London and that none of the four persons had not performed any duty pertaining to RITES or IRCON while they were in London; yet the to and fro air fare of all the four persons was paid by the above two Public Sector Undertakings. On the (7 of 9) [CRLR-1275/2015] said basis it has been alleged that the accused Appellant had abused his office and caused pecuniary loss to the two Public Sector Undertakings by arranging the visits of the four persons in question to London without any public interest. This, in essence, is the case against the accused- appellant.
A fundamental principle of criminal jurisprudence with regard to the liability of an accused which may have application to the present case is to be found in the work "Criminal Law" by K.D. Gaur. The relevant passage from the above work may be extracted below:
"Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."
It has already been noticed that the Appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the Appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the Appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the Appellant as a public (8 of 9) [CRLR-1275/2015] servant can arise. As a Minister it was for the Appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the Appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala (1963) Supp. (2) SCR 724 while considering the provisions of Section 5 of Act of 1947. If the totality of the materials on record indicate the above position, we do not find any reason to allow the prosecution to continue against the Appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the plain duty of the court to interdict the same."
11. As regards offence under Section 120-B IPC, suffice it to observe that when substantive offence under Section 13(1)(d) of the Act of 1988 is prima facie not made out against respondent public servants then obviously said charge cannot be framed against them. The learned trial Court has, therefore, rightly concluded that material available on record are prima facie insufficient to show an over-act of the accused/respondents much less their actus reus so as to frame charge of criminal conspiracy.
12. Therefore, on the basis of available material, unhesitatingly, in my view, the learned trial Court has not exercised its discretion required by law in a wholly unreasonable and improper manner. The revisional Court has to see whether substantial justice has (9 of 9) [CRLR-1275/2015] been done and as such it is only in exceptional cases when there is manifest error on point of law and consequent flagrant miscarriage of justice, jurisdiction be exercised to disturb/upset an order of discharge. In totality, upon examining the impugned order, I feel satisfied that the learned trial Court has exercised its discretion reasonably and in an infallible manner which warrants no interference in exercise of revisional jurisdiction.
Resultantly, the instant revision petition fails and the same is hereby dismissed.
(P.K. LOHRA),J.