Man Singh vs Central Bureau Of Investigation on 3 September, 2020

[Cites 13, Cited by 2]

Allahabad High Court

Man Singh vs Central Bureau Of Investigation on 3 September, 2020

Equivalent citations: AIRONLINE 2020 ALL 1946

As both these petitions, filed separately by co-accused in a case, seek quashing of the same first information report (for short FIR) dated 17.01.2018, registered as Case Crime No. RC/DST/2018/A/0004/CBI, under Section 120B I.P.C. and Section 13(2) read with Section 13(1)(b) and 13(1)(d) of the Prevention of Corruption Act, on same ground, with the consent of learned counsel for the parties, they are being decided by a common order.

For convenience, we would be referring to the record of CRLP No.7707 of 2020 (Man Singh versus CBI), which shall be referred to as the leading petition.

We have heard Sri Manish Gupta and Sri Shiv Sagar Singh Advocates for the petitioners; Sri Gyan Prakash, Senior Advocate, assisted by Sri Sanjay Kumar Yadav, for the Central Bureau of Investigation; and have perused the record.

The only ground pressed before us, on behalf of the petitioners, for quashing the impugned first information report is that the impugned first information report is a second first information report of the same offence which was reported earlier on 30.07.2015 and, therefore, it is liable to be quashed.

To test the above submission, we have gone through the record of the leading petition. The 1st FIR is at page 26 of the paper book, which has been e-filed. The contents of which are extracted below:

"In the Misc. Bench No. 12396 of 2014 (Dr. Nutan Thakur Vs. State of U.P. & others), the Hon'ble High Court of Judicature at Allahabad, Lucknow Bench at Lucknow vide order dated 16.07.2015 has directed CBI to conduct investigation into all allegations of corruption and amassing of unaccounted money against 9th respondent, one Sh Yadav Singh, the then Chief Engineer, Noida, Greater Noida and Yamuna Express Authorities and in regard to all transactions, persons and entities connected thereto.

It has been disclosed that an FIR was registered against Sh Yadav Singh & others, vide Case Crime No. 371 of 2012 u/s 409, 420, 466, 467, 469, 471 and 120-B of Indian Penal Code and u/s 13(1)(d) r/w 13(2) of the PC Act, 1988 on 13.01.2012 at PS Sector 39-Noida, Gautam Budh Nagar and UP for alleged corrupt practices while executing engineering work between 14.12.2011 and 23.12.2011 in which agreement bonds for Rs.954.38 crores were executed by Engineering Department of NOIDA. The investigation of the case was completed and the State Police submitted closure report, which was accepted by the District & Sessions Judge, Gautam Budh Nagar on 27.11.2014.

After hearing the petition, the Hon'ble High Court vide order dated 16.07.2015 has directed for investigation by CBI and a copy of the order of Hon'ble High Court is enclosed as Annexure-I. In compliance of the order of the Hon'ble High Court, a regular case is registered against Shri Yadav Singh, the then Chef Engineer, NOIDA, Greater NOIDA and the Yamuna Express Authorities and unknown others u/s 409, 420, 466, 467, 469, 471 and 120-B of the IPC and u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and the investigation of the case is entrusted to Sh. Rajesh Kumar, Dy SP, CBI, STF, Delhi. The copy of the FIR earlier registered by PS Sector 39 Noida, Gautam Budh Nagar is enclosed as Annexure-II."

The second impugned FIR is at page 82 of the paper book. The same is extracted below:

"This Regular Case is registered on the basis of the findings of a Preliminary Enquiry No. PE DST 2017 A 0002, which was registered on the basis of inputs received out of the investigation in two cases against Sh. Yadav Singh the then CME, Noida, his family members and associates i.e. RC DST 2015 A 0003 and RC DST 2015 A 0004. The above mentioned two cases were registered in the CBI, STF Branch, New Delhi on 30.07.2015 in compliance of the orders of Hon'ble High Court of Judicature at Allahabad.

During the course of enquiry of the said PE, it is prima-facie found that the five firms/companies of the associates/friends of Sh. Yadav Singh and his family members were also allegedly favoured unduly by Sh. Yadav Singh, the then CME, Noida in conspiracy with other officers/officials of NOIDA Authority and private persons in getting several contracts in NOIDA in gross violation of tender norms and procedures, thereby, causing loss to the NOIDA Authority. These include the following:-

(1) M/s Gul Engineers Co., Proprietor, Shri Javed Ahmed (2) M/s SMP Technology Pvt. Ltd., Directors, Shri Sai Raju, Shri Manish Kumar and Shri Prem Pradeep (3) M/s Abu Infracon Pvt. Ltd., Directors, Shri Kumar Saurav and Shri Prem Pradeep (4) M/s Sanjay Electricals, Proprietor, Shri Sanjay Kumar Gupta (5) M/s Shakambari Projects, Ranchi, Proprietor, Shri Sanjay Kumar Sharma It is alleged that Sh. Yadav Singh while posted and functioning as CME, Noida had favoured M/s Gul Engineers Co. by awarding 31 contracts of electrical work amounting to Rs. 37.99 crores to it during the period 2007-2012, in criminal conspiracy with other officers/ officials of Noida Authority and Sh. Javed Ahmed, Proprietor of the said firm, who also happens to be a friend of Yadav Singh since long. Out of the 31 contracts, two have already been investigated in case RC DST 2015 A 0004 and the remaining 29 contracts are the subject matter of the instant case. It is alleged that M/s Gul Engineers Co. did not fulfill the eligibility criteria as far as the work experience is concerned and was also found engaged in cartelization of the bidders. Sh. Yadav Singh in conspiracy with the other accused persons also awarded the said contracts on exorbitant rates, thereby causing wrongful loss of Rs.2.2 crores approximately. It is also alleged that Sh. Javed Ahmed used to pay bribe to Sh. Yadav Singh regularly and had also given an Innova Car No. UP-16AJ-6363 as quid-pro-quo.

It is further alleged that Sh. Yadav Singh in criminal conspiracy with other officers/officials of Noida Authority and the Directors of M/s SMP Technology Pvt. Ltd., namely, S/Sh. Prem Pradeep, Manish Kumar and Sai Raju awarded five projects to the said company amounting to Rs.2.19 crore approximately related to computerization of water billing in NOIDA. The above named Directors of the said company were the class mates of Sh. Sunny Yadav s/o Sh. Yadav Singh at the Engineering College in Solan (HP). In one project amounting to Rs. 53 lacs, the contract was awarded to the said company on the basis of calling quotations only and the tendering procedure was not followed which is a blatant violation of the laid down procedures and guidelines of the NOIDA Authority. It is also alleged that the contracts were given to the said company even though it did not fulfill the eligibility criteria.

It is alleged that M/s SMP Technology Pvt. Ltd. had hired premises No. H-60, Sector-63, Noida belonging to M/s Kusum Garments Pvt. Ltd., a company of Smt. Kusum Lata w/o Yadav Singh and Sunny Yadav s/o Yadav Singh at an exorbitant rate of Rs. 4.5 lacs per month. Further, the registration papers of one Volvo Car bearing Regn. No. DL-8CAB-8055 registered in the name of M/s SMP Technology Pvt. Ltd. were recovered from the house of Sh. Yadav Singh.

It is also alleged that Sh. Yadav Singh in criminal conspiracy with other officers/officials of Noida Authority and Sh. Kumar Saurav and Sh. Prem Pradeep, Directors of M/s Abu Infracon Pvt. Ltd. awarded 16 projects to the said company pertaining to Jal, Electrical and Maintenance work etc. during 2011 to 2014 by abusing his official position as Public Servant and also in gross violations of the tender norms as the company did not fulfill the eligibility criteria. A number of suspicious transactions are alleged to have taken place between M/s K.S. Ultratech Pvt. Ltd., a company of Kusum Lata and Sunny Yadav and M/s SMP Technology Pvt. as well as M/s Abu Infracon Pvt. Ltd. which are controlled by the close friends of Sunny Yadav.

It is further alleged that Sh. Yadav Singh in criminal conspiracy with other officers/officials of Noida Authority and Sh. Sanjay Kumar Gupta, Proprietor of M/s Sanjay Electricals awarded 37 electrical projects amounting to Rs. 76 crores approximately to the said firm during 2007 to 2012 by abusing his official position as Public Servant and also in gross violations of the tender norms as the company did not fulfill the eligibility criteria. It is also alleged that Sh. Sanjay Kumar Gupta used to pay bribe to Sh. Yadav Singh regularly as quid-pro-quo.

It is also alleged that Sh. Yadav Singh in criminal conspiracy with other officers/officials of Noida Authority and Sh. Sanjay Kumar Sharma, Proprietor of M/s Shakambhari Projects, Ranchi awarded 1 project amounting to Rs. 21 lacs approximately to the said firm in 2014 for cleaning of drains on the Noida Expressway by abusing his official position as Public Servant and also in gross violations of the tender norms as the said firm did not fulfill the eligibility criteria. It is also alleged that Sh. Sanjay Kumar Sharma along with his brother-in-law Sh. Nirbhay Shankar Harit had close relations with Sh. Yadav Singh.

The above mentioned facts prima-facie disclose commission of cognizable offences u/s 13(2) r/w 13(1)(b) and 13(1)(d) of PC Act, 1988 r/w Section 120B IPC. Therefore, a Regular Case is registered against the following:-

(1) Shri Yadav Singh, the then CME, NOIDA (2) Shri Javed Ahmed, Proprietor, M/s Gul Engineers Co.

(3) Shri Sal Raju, Shri Manish Kumar and Shri Prem Pradeep Directors, M/s SMP Technology Pvt. Ltd.

(4) Shri Kumar Saurav and Shri Prem Pradeep, Directors, M/s Abu Infracon Pvt. Ltd.

(5) Shri Sanjay Kumar Gupta, Proprietor, M/s Sanjay Electricals, (6) Shri Sanjay Kumar Sharma, Proprietor, M/s Shakambari Projects, Ranchi.

(7) Unknown officers/officials of NOIDA Authority and private persons.

Investigation of the case is entrusted to Sh. Rajesh Kumar, Dy. Supdt. of Police, CBI, STF, New Delhi."

A comparison of the two first information reports, extracted above, would reveal that the earlier FIR dated 30.07.2015 was in respect of corrupt practices while executing engineering work between 14.12.2011 and 23.12.2011 relating to agreement bonds worth Rs.954.38/- crores executed by Engineering Department of NOIDA. Whereas, the second impugned FIR has been lodged in respect of certain other corrupt practices which were discovered during the course of investigation of two cases, in respect of period 2007 to 2012 concerning award of 31 contracts of electrical works amounting to Rs.37.99/- crores, out of which two were investigated in other cases and twenty nine were the subject matter of the instant case.

The learned counsel for the petitioner highlighted the overlap in the two first information reports by submitting that out of the 31 contracts mentioned in the second first information report, two contracts had already been investigated in the earlier case. He, accordingly, submitted that the subsequent impugned first information report is in essence a second first information report. He further submitted that in any view of the matter, once the investigation of the 1st first information report was in progress, there was no need to register a second first information report as the police report could have expanded its scope by including the material discovered during the course of investigation. It is thus the case of the petitioner that the impugned first information report is in the teeth of the law laid down by the Apex Court in T.T. Antony Vs. State of Kerala and others 2001 6 SCC 181 and as such is liable to be quashed.

Sri Gyan Prakash, learned counsel for the C.B.I., submitted that the two first information reports relate to different and distinct corrupt practices in respect of award of contracts over a period of time with a different set of accused and, therefore, it cannot be considered a second first information report of the same offence. Moreover, over a period of time an accused may commit multiple offences of a similar nature. There is nothing in law that separate FIRs can not be lodged for such multiple offences. He also informed the court that after investigation of the case, under the impugned FIR, already a charge sheet has been submitted on 08.06.2020 therefore this petition is to be dismissed out right.

We have considered the rival submissions. From a bare perusal of the two first information reports, it is clear that the two first information reports relate to corrupt practices in respect of different set of contracts falling in a different time zone. Under the circumstances, it cannot be said that the two first information reports are in respect of same offence. Moreover, one set of accused can commit multiple offences of similar nature over a period of time and for each of such offence there can be a separate first information report, if need be. For example, if a person indulges in corrupt practice to award contract 'A' and, thereafter, to award contract 'B', and, thereafter, to award Contract 'C', each would amount to a separate offence for which separate FIRs can be lodged.

In the instant case, we find that the two FIRs including the FIR impugned relate to separate corrupt practices involving separate contracts executed in a some what different time zone, therefore, the argument of the learned counsel for the petitioner that the impugned first information report is a second FIR of the same offence is completely misconceived.

Apart from the above submission, the learned counsel for the petitioner, in the context of petitioner Man Singh, has stated that the said petitioner retired from office on 31st August, 2007 and has been falsely implicated.

Be that as it may, as correctness of the allegation is to be tested during the course of trial, the same would be examined at the appropriate stage. On the said ground, the prayer to quash the F.I.R. cannot be accepted. More so, when, after investigation, police report has been submitted.

For the reasons recorded above, both the petitions are dismissed.

It is made clear that we have not expressed our opinion on the merits of the police report submitted after investigation as also with regard to entitlement of the petitioners for bail.

Order Date :- 3.9.2020 Rahul.

Unlock Advanced Research with PRISMAI

Allahabad High Court