Himachal Pradesh High Court
K.C. Azad vs State Of H.P. And Ors. on 7 March, 1994
Equivalent citations: 1995CRILJ974
ORDER D.P. Sood, J.
1. By this petition under Section 482 of the Code of Criminal Procedure, 1973, petitioner has assailed his prosecution pursuant to the First Information Report No. 4 of 1986 recorded in P.S. (Enforcement) South Zone, Shimla, and prays for quashing thereof.
2. The petitioner at the relevant time was working as Director of Horticulture in the Horticulture Department of Government of Himachal Pradesh. His involvement is for the commission of the offence punishable under Sections 420, 467, 471, 511 and 120-B of the Penal Code besides under Section 5(2)--(d) of the Prevention of Corruption Act. The basis of the First Information Report is the enquiry report of the Divisional Commissioner, Shimla, which consists of two parts. The first part thereof deals with the purchase of barbed-wire and second part deals with the purchase of Sintex Water Storage Tanks (hereinafter referred to as 'Tanks'). As per the prosecution the petitioner is connected with the second part. The allegations against the petitioner are that he sent a letter to all the District Horticulture officers/Plant Protection Officers Himachal Pradesh, appreciating the usefulness of the tanks and asked them to purchase HDPEW tanks from M/s Gupta Pipes Dharampur although there was no requirement from the field offices for the purchase thereof. As many as 122 tanks of diffferent sizes/capacity were purchased by the Field offices costing nearly seven lacs out of which payment of about six lacs had been made to the firm and the balance amount of Rs. 96,337.84 P was withheld under the orders of the Government. The allegation is that the petitioner conspired with the aforesaid Shri P. L. Gupta, Proprietor of the aforesaid firm, a co-accused and he preferred to buy the tanks through rate contract which were very high as compared to the rates already offered to and lying with him and the price prevalent in the market. The petitioner failed to point out the alarming discrepancy in rates to the Government dispite being fully aware of the fact that the rates fixed by the Controller of Stores were highly exorbitant. He along with other co-accused did the act out of the way to oblige and favour M/s Gupta Pipes Dharampur with an ulterior move prompted by consideration of financial gain to themselves. Detailing the above charges with a view to judge whether the relief sought for by the petitioner is available to him or not would be essential in the facts and circumstances of this case.
3. Petitioner was approached by Shri P. L. Gupta aforesaid, his co-accused, to accomplish his criminal design of conspiracy and for this purpose he sent his Sales Executive Shri R. M. Kashyap another accused, with letter No. GP-Tanks, dated 25-6-1985 to handover the same to the petitioner on 26-6-1985 who had taken a sumptuous dinner in the Hotel Asia the Dawn, previous night.
4. Secondly, Dr. K. C. Azad had already invited tender for HDP Water Storage Tanks through classified advertisement which were at Rs. 1900/- and 3800/- for 500 and 1000 liters tanks. But Dr. K. C. Azad, preferred to by tanks at the exorbitantly high rate contract of Rs. 2470/-and Rs. 5430/- per 500 and 1000 liters tanks respectively compared to the rates already lying with his office and prevalent in the market, for his ulterior motive. Thus Dr. K. C. Azad has failed to point out the exorbitant rates or rate contract in order to cheat the government and to provide wrongful gain to the Prop, of M/s. Gupta Pipes Dharampur by abusing his official authority, despite the fact that Shri R. C. Singh pointed out the exhorbitant nature of rate contract. Thus under the directions of Dr. K. C. Azad, total 122 tanks (Sintex) (118 of 1000 liters and 4 of 500 litres capacity) have been purchased by his various officers worth Rs. 6,79,247.75 out of which the payment of Rs. 5,82,875.71 p. had been made to the firm. The rates invited through classified advertisement by him in the March, 1985, were Rs. 1900/-and 3800/-for500 liters and 1000 litres capacity tanks respectively. The contract rates were Rs. 2470/- and 5430/- for 500 litres and 1000 litres capacity tanks. Thus by making the purchases at exhorbitantly high rate contract Dr. K. C. Azad in pursuance of criminal conspiracy had purchased 122 tanks and caused wrongful loss to the H. P. Government. Later on when the enquiries were started into the rate contract and supply of HDPEW tanks. Dr. K. C. Azad appointed a committee and preferred to buy the tanks from the Agro Industrial by fixing lower rate of Rs. 2320/ - and 5050/- for a 500 litres and 1000 litres capacity tanks to hide and screen his liability for illegal acts of commission as mentioned above to divert the attention of the Government.
5. Later on Dr. K. C. Azad, Director of Horticulture to conceal his illegal acts of commission and omission purchased 35 Sintex Tanks. 5 of 1000 litres and 30 of 500 litres at the rate of Rs. 5050/- and 2320/- respectively from H. P. Agro Industries Corporation on these newly arrived at rates through negotiation with the representative of H. P. Agro Industries Corporation, namely Sh. I. S. Azad Marketing Manager (Pesticide). As compared to the market rates this has caused further wrongful gain of Rs. 19679.40 paise to H. P. Agro Industries Corporation and corresponding loss to the H. P. Government. Thus total wrongful loss caused to the Government comes to Rs. 2,03,183.35 paise as a consequence of these illegal acts of Sh. K. C. Azad, Director of Horticulture and his co-conspirator Shri I. S. Azad and Sh. Parshotam Lal Gupta Prop. M/s. Gupta Pipes Dharampur.
6. He also managed the receipt of two letters one from M/s Amar Nath Khandelwal and the other from M/s. Agro Industries Corporation vide diary No. 48 dated 1 -4-1985 and No. 49 dated 1 -4-1985 respectively with the intention to conceal his illegal acts of commission. The receipts of these two letters on the same date i.e. 1-4-1985 is suspicious because one letter vide Dy. No. 48 is having a cutting (over writing) in the diary register of Hortculture department and the second letter vide despatch No. 349-59 dated 31 -3-1985 has (over writing) in the despatch register of Agro Industries and in this letter there is also an interpolation in the marketing where year 1986 has been changed. Shri Kahan Singh Diary Clerk of the Horticulture Department has cleared this point by stating that these two letters were got diarised by him at a later date by Sh. V. V. Sharma, Dy. Director Horticulture by coercing pressure upon him with a criminal intention.
7. The investigating agency has collected evidence (documentary as also oral) pertaining to the mode in which the rate contract of M/s. Gupta Pipes, Industiral Area, Dharampur were arrived at purporting to be as per procedure and Rules for the purchase of Stores by all the Departments and Offices of the Government of Himachal Pradesh. Material has also been collected with respect to the insertion of item "HDP - Water Storage Tanks by the Senior Technical Officer, into invitation of tenders proposed to be published in the News Papers before consideration of the Rate Contract of the said item by the concerned Committee. We are not concerned with the above said facts vis-avis the question whether the F.I.R. lodged against the petitioner is or is not liable to be quashed. The part of the petitioner allegedly starts after the aforesaid firm through Shri P. L. Gupta was approved for the purchase of the above said item against the rate contract by the Controller of Stores Department through its Committee. As regards the petitioner, documents have been collected to show the element of conspiracy in between him and Shri P. L. Gupta prior to the issuance of the letter dated 28th June 1985 by him. Oral evidence of S/Shri V. V. Sharma, Joint Director Horticulture, Shri R. C. Singh, Asstt. Fruit Technologist at the material time and clerks dealing with the despatch register etc. in the office of the Horticulture Department in the shape of their statements recorded under Section 161 Cr. P. C. has been collected, in order to show the role played by the petitioner in respect of the purchase of the aforesaid item.
8. I have heard Id. counsel Shri T. R. Chandel on behalf of the petitioner and Shri S. D. Vasudeva, Special Public Prosecutor representing the State of H. P. Ld. counsel have also taken me through the entire record. I have also carefully gone through the same minutely. Besides, I have also considered the Financial Rules with respect to the financial powers of the Director.
9. Ld. counsel for the petitioner has vehemently urged that approval of the firms with respect to the supply of the articles against the rate-contract is within the domain of the Department of Controller Himachal Pradesh. The petitioner has no link with it and once the firm is approved for the supply of an article against the rate contract, the Heads of the Departments or other officers have no option but to purchase the said article (s) from the approved firm. In case of non-availability of that article, no objection certificate has to be sought from the Controller of Stores or Additional Controller of Stores and then only he is entitled to purchase the same as per Rules after seeking quotations from the market. Further it is pointed out that the firm aforesaid was approved for the financial year commencing was approved for the financial year commencing from 1st April 1985 to 31st March 1986 and all purchases on the basis of his letter dated 28th June, 1985 was made by the officers of his department posted at various places in the State though subordinate to him. It is then pointed out that even otherwise without the intervention of the petitioner they could have purchased the articles from the approved firm. It is also pointed out that the tenders were invited by the petitioner for making purchases for the financial year 1984-85 in the month of March 1985 but the same could not be made. It is argued that, no doubt, lower rates were intimated to the petitioner but he had no link with the independent Committee approving the rate contract and bringing the firm on list. Apart from it, it is pointed out that the H. P. Agro Industries is not an approved firm on contract basis particularly for the financial year 1985-86.
10. On the contrary Shri Vasudeva has vehemently urged that before issuance of letter dated 28th June, 1985, the petitioner intentionally did not get it examined from some experts whether switching over to HDPW Storage Tank by condemning the M. S. Steel Tanks were useful/ beneficial to the department or not before recommending their use in the Horticulture Department nor he brought the fact that rate fixed by the Controller of Stores were highly exorbitant in comparison to the rates earlier offered about two or three months back to the knowledge of the petitioner. Further it is urged that even the HP Agro Industries has supplied the aforesaid article at a much lower rates to different persons. It is also pointed out that the large scale purchases of the aforesaid article was intentionally sought by the petitioner without (i) having indents from his subordinate offices, (ii) examining the usefulness of the tanks particularly and (iii) without assigning or recording the reasons for the condemning of M. S. Tanks which were in use earlier. Even, according to him, the subsequent formation of the Committee in September 1985 and recommending the purchase of the same article at a lower rates than that of the approved firm further indicates the involvement of the petitioner. It has been vehemently contended that the huge difference of rates existed which was brought to the notice of the State Government by Shri Dev Raj Negi in August 1985 and the aforesaid purchase of the commodity subsequent thereto the Departmental Purchase Committee was merely with a view to conceal his own mis-doings. Attention has been drawn to the oral material collected in the form of statements of witnesses, S/Shri. V. V. Sharma, and R. C. Singh etc.
11. The apex Court has laid down the principles in plethora of cases, namely, R.P. Kapur v. State of Punjab 1960 Cri LJ 1239 : AIR 1960 SC 866; The Delhi Development Authority v. Sardari Lal and the State 1975 Cri LJ 435 : AIR 1975 SC 495; State of Karnataka v. L. Muniswamy 1977 Cri LJ 1125 : AIR 1977 SC 1489; State of West Bengal v. Swapan Kumar Guha 1982 Cri LJ 819 : AIR 1982 SC 949; MadhavraoJiwajiRaoScindia v. Sambhijirao Chandrojirao Angre 1988 Cri LJ 853 : AIR 1988 SC 709; State of U. P. through C.B.I.S.P.E. Lucknow v. R. K. Srivastava AIR 1989 SC 2222 and State of Haryana v. Ch. Bhajan Lal 1992 Cri LJ 527 : AIR 1992 SC 604.
12. Out of them, it would be material to lay down the main guidelines given in the case of Ch. Bhajan Lal (supra). In para 108 of this case, S. Ratnavel Pandian, J., speaking for the Court seven categories of cases by way of illustration where powers under Article 226 of the Constitution of the inherent powers under Section 482 of the Criminal Procedure Code can be exercised either to prevent the abuse of the process of any Court or to secure the ends of justice. Of course, clerly pointing out that' it may not be possible to lay down any precise, clearly definite and sufficiently channalised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. The circumstances laid down are :
(1) Where the allegation 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 F.I.R. 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.
(3) Where the uncontrovertcd 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 allegation 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 concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, 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.
13. The basic principle emerging from the above said guidelines is that the High Court cannot embark upon an enquiry as to whether the case is reliable or not. It is only where the allegations in the F.I.R. or the complaint taken at their face value and accepted in their entirety does not 'Constitute the offence alleged, the High Court is empowered to quash the proceedings.
14. The perusal of the record in the instant case Shows the existence of some material in the statements of S/Shri V. V. Sharma, R. C. Singh, the concerned despatch cleark etc. the reliability of which cannot be gone into by this Court at this stage. Without going into the merits or demerits of the material collected by the prosecution, it would not be proper for this Court to comment upon the veracity thereof at this stage.
15. It is not the case of the petitioner that before lodging the First Information Report, no effort was made for conducting an inquiry. Rather the record shows that case against the petitioner was got registered after examining the records and after making a detailed inquiry. The said inquiry is the basis of the impugned First Information Report. The allegations with respect to serious lapses having been committed by the petitioner resulting into the substantial loss to the Govt. and consequent gain to others at his behest have been made. Admittedly, he was a public servant and in that capacity, the allegations with respect to the misuse of his official position to 'achieve his own ends and misappropriation of Govt. funds also exists. As observed above, the investigating agency has also collected some material in support of the allegations made in the First Information Report by way of oral as also documentary evidence.
16. At the cost of repetition, it may be stated (that at the stage of First Information Report, the courts are required to refrain themselves from interfering when First Information Report discloses the commission of a cognizable offence ., and the statutory power of the police to investigate cannot be interfered in the exercise of the inherent powers of the Court.
17. Even consideration of documents/records produced by the accused or any other person by way of affidavit or otherwise along with or during the investigation, by the High Court for the purpose whether any cognizable offence is or is not disclosed, is not permissible. This approach, to say the least, to some extent amounts to investigation by the Court whether the offence alleged in, the First Information Report is made out or not. In the instant case, the challan has already been filed.
18. The defence raised by the petitioner-, accused is that he never participated in the conspiracy hatched at the Asia, the Dawn on the alleged date nor he forced his subordinate officials to make the purchases as the latter were themselves competent to purchase the Syntex Tanks against the rate contract from M/s. Gupta Pipes, Dharampur, an approved firm. Further, his diffence that he was not associated with the independent committee approving the rate contract and bringing the aforesaid firm on approved list and that H. P. Agro Industries Corporation was also not an approved firm on rate contract basis, particularly for the financial year 1985-86, cannot be appreciated by this Court at this stage for the purpose of exercising its inherent powers for directing the quashing of the impugned First Information Report. These matters can be agitated by the petitioner before the trial court by way of his defence. By no stretch of imagination, it can be said that the allegations made in the impugned First Information Report, if taken at its face value and if accepted in its entirety, does not even prima facie constitute any offence or make out a case against the petitioner. The records constituting material collected by the police annexed with the challan against the accused rather cements the conclusion with respect to the existence of a prima facie case against the petitioner. In that view of the matter, it would not be proper for this Court to weigh the evidence collected by the investigating agency to see whether a case is or is not made out against the accused.
19. In view of the above discussion, the petition is dismissed. The Registry is directed to send back the record to the trial court forthwith. Any expression of opinion used in the decision of this petition shall not be deemed to affect the main case on merits.