Supreme Court - Daily Orders
State Of Jharkhand Through Cbi vs Riyaz Khan Faridi on 29 September, 2015
Bench: Ranjan Gogoi, N.V. Ramana
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ITEM NO.7 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). 4259/2014
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 05/04/2013
IN CRLMP NO. 2635/2012 PASSED BY THE HIGH COURT OF JHARKHAND AT
RANCHI)
STATE OF JHARKHAND THROUGH CBI PETITIONER(S)
VERSUS
RIYAZ KHAN FARIDI RESPONDENT(S)
(WITH APPLN. (S) FOR EXEMPTION FROM FILING O.T. AND PERMISSION TO
FILE ADDITIONAL DOCUMENTS AND STAY AND OFFICE REPORT)
Date : 29/09/2015 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE N.V. RAMANA
For Petitioner(s) Mr. Tushar Mehta, ASG
Ms.Kiran Suri, Sr. Adv.
Mr. R.K. Verma, Adv.
Mr. B. V. Balaram Das, Adv.
For Respondent(s) Mr. Salman Khurshid, Sr. Adv.
Mr. Imtiaz Ahmed, Adv.
Mrs. Naghma Imtiaz, Adv.
for M/s Equity Lex Associates, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Exemption from filing O.T. is granted. Permission to file additional documents is granted. Leave granted.
The appeal is allowed in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI] Signature Not Verified COURT MASTER COURT MASTER Digitally signed by Vinod Lakhina Date: 2015.10.01 16:43:36 IST Reason:
[SIGNED ORDER IS PLACED ON THE FILE] 1 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1281 OF 2015 [ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.4259/2014] STATE OF JHARKHAND THROUGH CBI ...APPELLANT VERSUS RIYAZ KHAN FARIDI ...RESPONDENT ORDER
1. Leave granted.
2. The challenge in this appeal is to an order dated 5th April, 2013 passed by the High Court of Jharkhand by which the criminal proceeding in R.C. No. 11(A) of 2009-AHD-R including the order dated 10th August, 2011 taking cognizance of the 2 offences under Sections 120B, 420, 467, 468, 471 of the Indian Penal Code, 1860 (“IPC” for short) and also under Sections 13(1)(c), 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 have been quashed by the High Court insofar as the respondent accused Riyaz Khan Faridi is concerned.
3. The case of the prosecution in short is that one Rajesh Kumar Fogla (accused) acting on behalf of M/s Nand Kishore Fogla had submitted a tender, inter alia, for disinfectant, fogger machine and dispenser pursuant to a tender issued by the Health Department of the State of Jharkhand. The aforesaid firm represented by accused Rajesh Kumar Fogla was to procure the materials from one M/s Microgen Hygiene Pvt. Ltd. of which the respondent accused is the Executive 3 Director. According to the prosecution, though the procurement rates of the items by the accused Rajesh Kumar Fogla was low the rates which were quoted in the tender were exorbitantly high. The further prosecution case is that a tender was also submitted on behalf of M/s Microgen Hygiene Pvt. Ltd. of which the respondent accused, as already noted, is the Executive Director quoting even higher rates than the exorbitant rates quoted by the accused Rajesh Kumar Fogla. The prosecution alleges that the aforesaid tender submitted on behalf of M/s Microgen Hygiene Pvt. Ltd. by the respondent accused was to show/demonstrate “the reasonableness” of the higher rates quoted in the tender submitted by the accused Rajesh Kumar Fogla. It is on the aforesaid core allegations that the investigating agency after due 4 investigation of the entire gamut of the allegations made had submitted charge-sheet, inter alia, against the respondent accused.
4. The High Court thought it proper to quash the proceedings on the ground that according to the respondent accused the tender submitted under his signature on behalf of M/s Microgen Hygiene Pvt. Ltd. was a forged document. Additionally, the High Court took note of the fact that the accused Rajesh Kumar Fogla, though, had indicated involvement of other persons with whom he allegedly shared the booty, the name of the respondent accused or M/s Microgen Hygiene Pvt. Ltd. was not mentioned by the accused Rajesh Kumar Fogla.
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5. Before us, it is contended on behalf of the appellant that the High Court had gone wrong in quashing the criminal proceeding at the infant stage when trial is yet to commence by looking into what could have been the possible defence of the accused. According to Ms. Kiran Suri, learned Senior Counsel appearing for the appellant, whether the tender submitted by the respondent accused on behalf of M/s Microgen Hygiene Pvt. Ltd. was forged or not is a question to be determined in the course of the trial.
6. On the other hand, Shri Salman Khurshid, learned Senior Counsel appearing for the respondent accused has drawn our attention to the documents filed in Court to show that in the invoices raised by M/s Microgen Hygiene Pvt. Ltd. with regard to the very same products the prices were 6 different from what was charged by the accused Rajesh Kumar Fogla. Shri Khurshid has also referred to the notice issued by the prosecution under Section 91 of the Code of Criminal Procedure, 1973 and the reply submitted by the respondent accused wherein he had categorically stated that M/s Microgen Hygiene Pvt. Ltd. had not filed any tender. Shri Khurshid has drawn the attention of the Court to the fact that in terms of the requirements of the tender notice M/s Microgen Hygiene Pvt. Ltd. was not eligible to submit a tender and, therefore, the question of any tender being filed by the aforesaid concern cannot arise. The above apart, Shri Khurshid has drawn the attention of the Court to the statement of the accused Rajesh Kumar Fogla recorded under Section 164 Cr.P.C. wherein he categorically admitted that the signature of the 7 respondent-accused on the technical bid of the tender submitted by the M/s Microgen Hygiene Pvt. Ltd. was of some other person i.e. one Pradyut Mukherjee who had signed in his presence. The absence of any material to show that the main accused Rajesh Kumar Fogla had shared the booty with the respondent accused has also been stressed upon by Shri Khurshid.
7. We have considered the submissions advanced. At the stage where the proceedings were poised before the same were interdicted by the High Court it was wholly inappropriate for the High Court to go into the merits of the contentions raised on behalf of either side and to record its pronouncement thereon inasmuch as what was required to be considered at that stage is the existence of a strong prima facie case to go for trial. Before 8 us, what has been argued on behalf of the respondent pertains to the defence of the accused which he has to set up and prove in the course of the trial. However plausible the defence may appear at this stage and however tempting it may be to entertain the same we must hold back our consideration of the same having regard to the well established principle of law that the defence of the accused ought not to be considered while entertaining a plea for quashing of a criminal proceeding.
8. On the aforesaid basis, it is our considered view that the present is a fit case which should go for trial. Accordingly, we interfere with the order of the High Court; set aside the same and direct the prosecution against all the accused including the respondent accused to commence and conclude as expeditiously 9 as possible.
9. The appeal, consequently, is allowed in the above terms.
....................,J.
(RANJAN GOGOI) ....................,J.
(N.V. RAMANA) NEW DELHI SEPTEMBER 29, 2015