Jharkhand High Court
Dr. Sudhir Kumar vs State Through Central Bureau Of ... on 22 October, 2021
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 265 of 2013
----
Dr. Sudhir Kumar ... ... Petitioner
-versus-
State through Central Bureau of Investigation ... Opposite Party
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
----
For the Petitioner : Mr. Anil Kumar, Sr. Advocate
Ms. Chandana Kumari, Advocate
For the Opp. Party : Mr. Rohit Sinha, Advocate
----
ORDER
RESERVED ON 09.07.2021 PRONOUNCED ON 22.10.2021 30/22.10.2021 Through this criminal miscellaneous petition, petitioner has
prayed for quashing the order dated 16.01.2013 passed by the Special Judge, CBI, Ranchi in R.C. 3(A)/11-R, by which cognizance has been taken for the offences under Sections 120B of the Indian Penal Code, read with Sections 420, 468, 471 of the Indian Penal Code, Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Section 52 of the Jharkhand Regional Development Authority Act, 2001, and Section 82 of the Registration Act, 1908 and petitioner has been summoned.
2. The criminal case being R.C. 3(A)/11-R was registered on the basis of a complaint dated 25.03.2011 received from the Registrar General, Jharkhand High Court, Ranchi, which alleged rampant violation of the provisions of Jharkhand Regional Development Authority Act 2001 and other relevant bylaws by the unknown officers/officials of Ranchi Regional Development Authority (RRDA), Ranchi and unknown builders/firms and companies engaged in the development of real estate in the city of Ranchi in criminal conspiracy among themselves and in strict abuse of official positions by such officers/officials of the RRDA, Ranchi. The complaint was made in compliance to the orders passed by the Jharkhand High Court, Ranchi in W.P.(PIL) No. 1531 of 2011 dated 22.03.2011 in the matter of Har Narain Lakhotia Vs. State of Jharkhand and others. The case was registered for offences under Sections 120B r/w 420 of the Indian Penal Code, and Section 13(2) r/w 13(1)(d) of the 2 Prevention of Corruption Act, 1988 and Sections 52 and/or 55 of the Jharkhand Regional Development Authority Act, 2001.
3. The Central Bureau of Investigation took up the investigation and submitted a supplementary chargesheet being Chargesheet No.01/13 vide memo No.147/3/03(A)/2011(R)(F1) dated 11.01.2013. According to the allegations in the chargesheet, petitioner, being Director of M/s Jagannath Lifecare (P) Ltd. purchased 45 decimal land bearing plot numbers 564B, Khata No.27, under mauza Hatma on 16.10.2006 in the name of the company from Shri Basant Toppo S/o late Kaila Oraon, resident of Karamtoli, Ranchi. The approach road for the plot was from the Radium Road side. Subsequently, during February 2008, M/s Jagannath Lifecare (P) Ltd. Booty Road (through Radium Road), Ranchi submitted building construction plan vide BC 269/08 in the name of Dr. Sudhir Kumar & Others. It is alleged that from the available records maintained in the RRDA, it was found that BC Case No.269/08 was applied for construction on plot number 564, under mauza-Hatma. The plan was submitted through Shri Sandip Kumar Jha, Architect. During processing of the file, it was found that the land on which plan was proposed, falls under Public Open Space and as such the plan can not be sanctioned. File of BC Case No.269/08 is not traceable in RRDA, records however show that it has not been disposed off i.e. either sanctioned or rejected. It has further been alleged that while the plan vide BC Case No.269/08 was still in process at the RRDA, Dr. Sudhir Kumar in the capacity of Director M/s Jagannath Life Care (P) Ltd. submitted a fresh plan (vide BC 531/2008 dated 30/04/2008) for sanction of construction of a B+G+4 structure through Shri Anupam Tirkey of M/s. Grids Consultants Ranchi. The file relating to the BC Case No.531/2008 is also not traceable in the RRDA, but, the Building Construction Case Register maintained for the year 2008 shows that BC Case No.531/08 was filed by M/s Jagannath Lifecare (P) Ltd. through Director Dr. Sudhir Kumar. Surprisingly this time, the plot number was shown as RS 568 in place of plot number RS 564, under mauza Hatma which M/s Jagannath Lifecare (P) Ltd. or Dr. Sudhir Kumar did not possess. It has been alleged that the plan vide BC Case No.531/08 was sanctioned by the RRDA under desception by showing plot number 564 as 568. It is alleged that the above deliberate and dishonest misrepresentation is also evident from the fact that in the forwarding letter issued along with the sanctioned plan also plot number 3 568 was mentioned in place of plot number 564. It is alleged that since the land of the plot number RS 564 under mauza Hatma was Public Open Space (POS) and the building construction plan could not have been passed on the POS, the plot of land was wrongfull shown as RS 568 to avoid chances of rejection. It is alleged that the plan was submitted by Dr. Sudhir Kumar vide BC 531/08 only 2 months after submission of earlier plan vide BC 269/08 on the same plot by dishonestly changing the plot number. It is further alleged that Dr. Sudhir Kumar, his architects and erring RRDA Officials in pursuance to the criminal conspiracy among themselves also displayed nonexistent roads in the plan to get additional floors. In the site plan one road was shown to the north of the plot in which width of the road was not shown and the plot was also shown abutting a 9 meters wide road coming from the Radium Road side. Though, as per the approved plan there were two roads shown in the front of the plot, it is alleged that there was no road to the north of the plot leading to Booty-Bariatu Road and land on which such road was shown was the land actually recorded as "Kaisare Hind' It is also alleged that the road coming from Radium Road was also not 9 meters wide as dishonestly shown in the plan. It is alleged that physical inspection disclosed the road to be only 17'4", 13'9", 20', 12'6", 14', 13'6", 18'6' wide. It is also alleged that with dishonest intention the non- existant roads to the north of the plot was also shown in the site map enclosed with the sale deeds of the land purchased by M/s. Jaganath Lifecare (P) Ltd. It is also alleged that physical verification of the building disclosed that building was constructed on the Public Open Space on which sanction of building construction plan and building construction was not permitted. It further disclosed deviations from the sanctioned plan and the approach road was very narrow. It is also alleged that the safety norms taken by the hospital is inadequate and norms suggested by the Fire Safety Department during the processing of plan were not complied. It is alleged that occupancy certificate was not issued as the director of M/s Jagannath Life Care (P) Ltd. did not intimate regarding the completion certificate to suppress sanction of plan on public open space, major deviations in the construction, narrow approach road as well as inadequate fire safety norms.
It is alleged that in pursuant to the criminal conspiracy, the accused in willful commission of criminal misconduct, dishonestly sanctioned the building construction plan of commercial apartments on a 4 land earmarked as Public Open Space in the existing master plan of Ranchi where construction of building was not permitted by adopting fraudulent means of changing plot numbers. It is alleged that Ranchi Regional Development Authority had rejected a building construction plan in BC 424/2007 on the same plot of land. It is alleged that the plan for G+4 commercial apartment was sanctioned on an irregular and narrow approach road and the petitioner with the help of architects M/s GRIDS Consultants in a deceitful manner fraudulently displayed on the copy of the plan that there existed two roads in front of his plot. It is also alleged that the original files relating to BC 948/2007, BC 269/2008 and BC 531/2008 are missing from RRDA, Ranchi for which RRDA has lodged a separate FIR at Kotwali PS, Ranchi.
4. After submission of the aforesaid supplementary chargesheet, by order dated 16.01.2013 passed in R.C. 3(A)/11-R, the Special Judge, CBI, Ranchi, took cognizance of the offences under Sections 120B of the Indian Penal Code, read with Sections 420, 468, 471 of the Indian Penal Code, Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Section 52 of the Jharkhand Regional Development Authority Act, 2001, and Section 82 of the Registration Act, 1908 and summoned the petitioner. Challenging the said order the petitioner has moved before this Court by filing this criminal miscellaneous petition.
5. Learned senior counsel appearing for the petitioner submits that the petitioner has not constructed any building or hospital over R.S. Plot No.568. He submits that only because the petitioner has not constructed building over Plot No.568 and has constructed over plot No.564 does not involve any criminal liability, inasmuch if BC Case No.269/08 would have been rejected, the matter would have been different. He further submits that it is not the case that the State Government has acquired the land appertaining to plot No.564 in terms of Section 29 of the Jharkhand Regional Development Authority Act, 1974. He refers to Section 29(2) of the Jharkhand Regional Development Authority Act, 1974 and submits that if the State Government fails to acquire the land within the period of six months from the date of receipt of notice, the master plan shall have an effect as if the land was not required to be kept as open space. He further submits that Section 73 of the Jharkhand Regional Development Authority Act, 5 1974 suggests that no prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction by the authority or the Chairman or any officer authorized by the authority or the Chairman on his behalf, but no such sanction has ever been taken in the present case before institution of the prosecution. He submits that without passing any order with respect to building plan in BC Case No.269/08, only because a direction was given by the Hon'ble High Court in Public Interest Litigation, the investigating agency has implicated the petitioner in the present case though there is no criminal liability against the petitioner. He submits that the Court below committed grave illegality in taking cognizance under Section 82 of the Registration Act, 1908, inasmuch as, the sale deed has been executed by Basant Toppo in favour of Jagarnath Life Care Pvt. Ltd. pursuant to permission granted in terms of Section 49 of the Chhota Nagpur Tenancy Act vide order dated 01.09.2006 in Case No.1/2006-07.
6. Counsel appearing on behalf of the Central Bureau of Investigation, submits that in the instant case, the order taking cognizance and the order issuing summons cannot be quashed. He submits that the investigation revealed that the petitioner was one of the directors of Jagarnath Life Care Pvt. Ltd. He submitted that two building construction plans vide BC No.269/08 on 01.02.2008 and BC No. 531/08 on 03.04.2008 were submitted with the Ranchi Regional Development Authority, requesting to sanction the plan in respect of same building. This fact came to light when the registers were seized from the office of the Ranchi Regional Development Authority. It is submitted that both the building plans were filed under the signature of the petitioner. Counsel further submits that the plan, which was submitted and was numbered as BC No.531/08, was filed mentioning a wrong plot number, i.e., R.S. Plot No.568, at a stage when his earlier application being BC No.269/08 was still pending. He submits that one Satyadeo Prasad, who is an officer of Ranchi Regional Development Authority, raised objection and only on raising of objection, the new plan (subsequent one being B.C. No. 531/08) was filed, giving a wrong plot number. Further, it revealed that the file of BC No.269/08 went missing from the office of the Ranchi Regional Development Authority, but, the building construction case register clearly shows that the petitioner was the applicant of the said plan, as the register also bears his signature. It 6 is submitted that knowing fully well that by giving the actual plot number in BC No. 269/08, the plan would not have been sanctioned, the petitioner and others conspired and filed a second plan, giving a different plot number. He submits that thereafter, the file of the second plan also went missing from the Office of the Authority, which clearly suggests foul play. He submits that in fact plot No.568 did not belong to the petitioner, but, by showing plot No.568, the plan was sanctioned. The petitioner was owner of plot No.564, which is a "public open space"
and if that plot number, which belonged to the petitioner, was projected in the plan, the plan would not have been sanctioned, for that reason, in the subsequent application, wrong plot number, which even did not belong to the petitioner, was reflected deceitfully. With the connivance of some officers, the plan was got sanctioned. He submits that this entire fact clearly suggests that there is a criminal conspiracy and tampering of record with ulterior motive. He submits that this is a criminal offence. Counsel for the Central Bureau of Investigation, lastly refers to the decision of the Hon'ble Supreme Court in the case of State of Gujrat versus Afroz Mohammad Hasanfatta reported in (2019) 20 SCC 539.
7. After hearing the counsel for the parties, I find that the petitioner has challenged the order taking cognizance and the order issuing summons. The Hon'ble Supreme Court, in the case of State of Haryana versus Bhajan Lal reported in (1992) Supp. (1) SCC 335 at paragraph 102 thereof, has laid down the categories of cases where a criminal proceeding can be quashed in exercise of powers under Section 482 of the Code of Criminal Procedure. Paragraph 102 of the said judgment reads as under: -
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations 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 7 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 FIR 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 uncontroverted 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 allegations 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 proceedings 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.
8. From the aforesaid law laid down by the Hon'ble Supreme Court, it is clear that if no offence is made out from the bare perusal of the FIR, then only the criminal proceeding and/or cognizance order can be quashed. Quashing of a cognizance order means throttling of criminal proceeding at a very initial stage. Whether the accused is innocent or not cannot be decided at this very initial stage. At this initial stage only the allegations, which are levelled in the FIR and materials of the chargesheet has to be taken on its face value. Nothing can be added or subtracted. If on the face value of the prosecution story, it is seen that no criminal offence is made out, then only FIR can be quashed. The Hon'ble Supreme Court in the case of XYZ versus State of Gujarat & Another reported in (2019) 10 SCC 337 has held that when there are serious triable allegations in complaint, it is improper to quash the FIR in exercise of inherent powers of High Court under Section 482 of the Code of Criminal Procedure. The said view has also 8 been taken note by the Hon'ble Supreme Court very recently while passing judgment dated 13th August, 2021 in the case of Kaptan Singh versus The State of Uttar Praesh & Others [2021 SCC Online SC 580].
9. Keeping the aforesaid principle in mind, it is to be seen whether on the facts narrated in the First Information Report and the Chargesheet, any offence is made out or not. In the present case, the criminal case has been registered for offences under Sections 120B r/w 420 of the Indian Penal Code, and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 52 and/or 55 of the Jharkhand Regional Development Authority Act, 2001.
10. Section 420 of the Indian Penal Code provides for punishment for the offence of cheating. Cheating is defined in Section 415 of the Indian Penal Code. It is necessary to quote Section 415 of the Indian Penal Code, which reads as under: -
415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
11. From perusal of Section 415 of the Indian Penal Code, I find that if any person intentionally induces any person by deceit to do or omit to do anything, which he would not have done or omitted, if he was not so deceived, is said to have cheated.
12. In this case, as per the prosecution case, the petitioner initially applied for sanction of building construction plan by giving a plot number, which belonged to him. That particular plot number being R.S. Plot No.564 is alleged to be a "Public Open Space". It is the case of the prosecution that no building plan could have been sanctioned on the application of the petitioner, which contained the aforesaid plot number.
It is the case of the prosecution that when a query was raised in this regard, a new building plan was submitted and a separate plot number was mentioned in that application. The different plot number was '568' which was mentioned. In fact, the said plot did not belong to the petitioner. By putting the said wrong plot number, the petitioner got his 9 entire land out of ambit of "Public Open Space" and got the plan sanctioned. This act, prima facie, is a deceitful act, as it is the case of the prosecution that if correct plot number would have been given, the building plan would not have been sanctioned. This act, prima facie, can come within the definition of cheating as defined in Section 415 of the Indian Penal Code, punishable under Section 420 of the Indian Penal Code. It is the case of the prosecution that files of both the applications filed by the petitioner for sanctioning the building plan, went missing from the office of the Ranchi Regional Development Authority. This also suggests foul play, involving some Public Servants also.
13. As referred earlier, at the very initial stage, only the prosecution case has to be seen, the arguments advanced by the counsel for the petitioner, at this stage, cannot be looked into. The same are his defence and in a proceeding under Section 482 of the Code of Criminal Procedure, where cognizance order is challenged, defence of the accused cannot be weighed. Furthermore, whether it is the petitioner, who has committed the offence or not, is a matter of trial, thus, the grounds raised by the petitioner in his defence, also cannot be appreciated without taking evidence. Chargesheet, which has been filed by the Central Bureau of Investigation, suggests the aforesaid act, which, prima facie, constitutes an offence under the Indian Penal Code. The entire prosecution also involves government officials, thus, the provisions of Prevention of Corruption Act is also attracted.
14. From the aforesaid findings and the facts and law, which have emerged during investigation, I find that a prima facie case for taking cognizance of the offence is made out and the submissions of the petitioner which are mere his defence, can be looked into at an appropriate stage and not at this stage where the order taking cognizance is challenged. Thus, I find no merit in this criminal miscellaneous petition. This criminal miscellaneous petition is, accordingly, dismissed.
(Ananda Sen, J.) Kumar/Cp-03