Jharkhand High Court
R. K. Anand vs The State Of Jharkhand on 6 July, 2021
Equivalent citations: AIRONLINE 2021 JHA 1337
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
W.P. (Cr) No.274 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.274 of 2019
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R. K. Anand, aged about 76 years, son of Late R.L. Anand, resident of 13,
Darbhanga Farm, D.L.F. Chattarpur, P.O. Chattarpur, P.S. Chattarpur,
New Delhi .... .... .... Petitioner
Versus
1. The State of Jharkhand
2. Anti-Corruption Bureau (Vigilance), State of Jharkhand, Ranchi, P.O.
G.P.O., Ranchi, P.S. Kotwali, District Ranchi .... .... .... Respondents
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For the Petitioner : Mr. Sidharth Luthra, Sr. Advocate
Mr. Indrajit Sinha, Advocate
For the A.C.B. : Mr. Suraj Verma, Spl. P.P.
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 07.04.2021 PRONOUNCED ON 06.07.2021
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Anil Kumar Choudhary, J.
Heard the parties through video conferencing.
2. This Writ Petition has been filed by the petitioner invoking the jurisdiction of this court under Article 226 of the Constitution of India for the following reliefs:-
(a) For issuance of a writ/ order/ direction for quashing of the entire criminal proceeding including the First Information Report No. 49/ 2010/ Vigilance dated 06.10.2010 registered for the offences punishable under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) (d) of the Prevention of Corruption Act, 1988 and further setting aside the proceedings thereunder as nonest and illegal.
(b) For issuance of a writ/ order/ direction for calling the order granting sanction passed in July, 2019 for prosecuting the petitioner in F.I.R. Case No.49/ 2010/ Vigilance and thereafter quashing of the same 1 W.P. (Cr) No.274 of 2019 being nonest and illegal.
As during the pendency of this criminal miscellaneous petition charge sheet (Final Form) was submitted and cognizance of the offence was taken by the learned Special Judge (ACB), Ranchi vide order dated 02.12.2019 for the offences punishable under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) (d) of the Prevention of Corruption Act, 1988 and directed for the issue of summons against the petitioner along with the co- accused person by way of interlocutory application the following additional prayer was made by the petitioner.
(c) Quashing the summoning /order on cognizance and the charge sheet in the aforesaid matter.
3. The brief facts of the case is that the FIR of this case was registered consequent upon the order passed by a bench of this court dated 12.09.2010 in WP (PIL) no.4597/2009, WP (PIL) no.2772/2009 of which inter alia the petitioner is the named accused person being cited as accused number one in the FIR. It has been alleged in the said FIR that the petitioner hatched a criminal conspiracy with the co-accused persons including the public servants and in furtherance of such criminal conspiracy, by intentional and deliberate violation of the Financial Rules and by misusing official position of him and the co-accused persons, caused wrongful loss to the government exchequer and corresponding wrongful gain to him and the co-accused persons of huge amount of money in purchase of sports articles in connection with organizing the 34th National Games at Ranchi. After investigation of the case report under Section 173 of the Code of Criminal Procedure was submitted inter alia against the petitioner and the co-accused Bandhu Tirkey who was the Sports Minister of the Government of Jharkhand at the relevant time and thus a public servant (but the co-accused Bandhu Tirkey was not named in the FIR) for having committed the offences punishable under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) (d) of the Prevention of Corruption Act, 1988. The undisputed fact of the case is that 34th National Games was 2 W.P. (Cr) No.274 of 2019 allotted to the Jharkhand Olympic Association in the year 2002. A Host City Contract was executed for the purpose on 26.06.2005. The petitioner was the president of Jharkhand Olympic Association at the relevant time. The petitioner was also the Vice President of the Indian Olympic Association (IOA). As per the terms of the Host City Contract, an organizing committee known as National Games Organizing Committee (NGOC) was registered as a society under the Societies Registration Act, 1860. In his capacity as the president of Jharkhand Olympic Association, the petitioner was designated as the Working Chairman of the said National Games Organizing Committee. The allegations against the petitioner are of three folds which are as follows:
i) The petitioner caused a wrongful loss to the tune of ₹ 50 lakhs to the state exchequer by being instrumental in payment of ₹ 50 lakhs by the State of Jharkhand to the Indian Olympic Association (IOA) as a sequel of the letter of Mr. Suresh Kalmadi the then President of Indian Olympic Association on the alleged account of delay in making preparation of the National Games; and this was done by the petitioner despite the fact that though the petitioner being the Working President of the National Games Organizing Committee was very much aware about the ground realities which did not justify payment of ₹ 50 lakhs to the Indian Olympic Association and in capacity of the Vice President of Indian Olympic Association, the petitioner instead of dissuading the Indian Olympic Association from making such demand, in criminal conspiracy with the co-accused Mr. Bandhu Tirkey-who was the then Sports Minister of the Government of Jharkhand, by his acts of omission and commission ensured the said wrongful loss of ₹ 50 lakhs to the State of Jharkhand and corresponding gain to himself and others.
ii) For the event management of the opening and closing of ceremony of the 34th National Games upon the recommendation of the tender committee notified by the state government M/s. Wizcraft was chosen and work order was issued as well as 30% of mobilization advance to the tune of ₹ 2 ,59,54,000/-was paid to the said firm. In the meanwhile as the date of the games was deferred on several occasions the said firm 3 W.P. (Cr) No.274 of 2019 expressed his inability to do the work at the old price but the said firm was interested to do the work in spite of deferring of dates of the said games on several occasions. But without terminating the agreement with the said firm under the direction of the petitioner, re-tender of the opening and closing ceremony was again initiated and the second tender was published in the newspaper. Though the meeting of the tender committee was scheduled to take place at 5.00 PM on 05.10.2009 but the said meeting took place on 06.10.2010 and along with the tender process the meeting of the executive board under the chairmanship of the petitioner was held. In that meeting, the petitioner took the decision to complete the process by persons; different from the members of the notified tender committee.
Though the notified committee was approved by the then Chief Minister of Jharkhand but the four member tender committee, the recommendation of which was approved by the petitioner, was neither approved by the Chief Minister, Jharkhand nor approved by the advisor to the Hon'ble Governor of Jharkhand, during the President's Rule in the state of Jharkhand. Three out of the four members of the committee constituted by the petitioner were private persons and the fourth person was a government servant in the Clerk grade. Because of this decision of the Executive Board under the chairmanship of the petitioner, the then Sports Secretary, Government of Jharkhand and the then Director of Sports, Government of Jharkhand dissented and walked out from the meeting. Apart from this in that meeting decision was taken to terminate the tender of M/s Wizcraft. The Executive Board instead of allotting the work to the L-1 bidder namely, Carving Dreams quoted ₹7,96,64,175/-without the price for the film actors allotted the work to the L-2 bidder Cineyug who quoted ₹ 8,49,00,000/-without the price of film actors, after negotiation for ₹ 8,25,00,000/-that is at a higher rate of ₹ 28,35,825/-ignoring the remarks of the Accountant General in connection with the first work allotted to M/s. Wizcraft that finalization of the tender on the basis of C.D. presentation leaves room for manipulation and fraud and the same is contrary to transparency. The said decision was also contrary to the provisions of the Bihar Financial Rules. Though in the meeting of the 4 W.P. (Cr) No.274 of 2019 Executive Board under the chairmanship of the then Chief Minister Mr. Arjun Munda it was acknowledged that the selection of M/s. Cineyug cannot be recognized as the same was not approved by the duly constituted committee as well as the Executive Committee of the National Games Organizing Committee but the petitioner at that time in an arbitrary manner during the President's Rule in capacity of Chairman of National Games Organizing Committee approved the tender of M/s. Cineyug, causing wrongful loss of ₹ 28,35,825/- to the Government of Jharkhand as a part of well-planned conspiracy with an intention to cause wrongful gain to M/s. Cineyug and others involved in the said criminal conspiracy.
iii) The petitioner was accorded the status of a Minister for State and in the relevant notification it was mentioned that the petitioner during his visit to Jharkhand in connection with the National Games will be provided with accommodation in the government guesthouse, transport facility and security facility and the expenses of the same would be borne by National Games Organizing Committee but the petitioner instead of staying in government guesthouse, stayed in hotel for which the National Games Organizing Committee has to bear an additional unnecessary expenses of ₹ 9,81,477/-.
4. After submission of charge-sheet No. 11/19, the learned Special Judge (ACB), Ranchi vide order dated 02.12.2019 has taken cognizance of the offences punishable under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c)
(d) of the Prevention of Corruption Act, 1988 and directed for the issue of summons against the petitioner and the co-accused person by splitting up of the case record of other accused persons against whom investigation was pending and fixed the case for appearance of the petitioner and the said co-accused person.
5. Mr. Siddharth Luthra, the learned senior counsel for the petitioner submits that till September 2009, all actions relating to the said National Games work were done by the Government of Jharkhand to the exclusion of the petitioner as is evident from the Audit Report. It is then submitted 5 W.P. (Cr) No.274 of 2019 that according to the said report prior to September 2009, all actions were taken at the instance of the co-accused person who was the Senior Vice- Chairman, National Games Organizing Committee- cum-Sports Minister namely Mr. Bandhu Tirkey and the petitioner was not privy to the said decisions of the said co-accused. It is then submitted that the order dated 02.12.2009 by which the learned trial court has taken cognizance of the offences is liable to be quashed as it places the petitioner as the person who was working in consort with the said co-accused causing loss to the Government exchequer to the tune of ₹ 28,38,09,000/-though no such allegation is made in the police report.
Mr. Luthra relied upon the judgment of the Hon'ble Supreme Court of India in the case of Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 wherein in a case instituted on the basis of a criminal complaint the Hon'ble Supreme Court of India reiterated the settled principle of law that in such cases the allegations in the complaint and the complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused while also reiterating the settled principle of law in paragraph 36 that at the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders and also referred to its judgment in the case of Jagdish Ram v. State of Rajasthan(2004)4 SCC 432 wherein inter alia it has been held that at the stage of issuing the process to the accused, the Magistrate is not required to record reasons and in the facts of that case which inter alia related to the offence of theft vis-à-vis a document and there were several litigations going on between the parties and as the magistrate in that case took cognizance in a presumptive footing, the Supreme Court held that in that continuation of the case amounts to an abuse of process of court.
6. Mr. Luthra next submitted that the petitioner is the first informant of the offences and on the basis of the complaint of the petitioner PE No. 46/2009 was registered and to the knowledge of the petitioner the said preliminary enquiry has not been closed hence the FIR No. 49/2010 of this case cannot be treated as the first FIR for the alleged offences involved in 6 W.P. (Cr) No.274 of 2019 this case.
Regarding the settled principle of law that apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report -- FIR postulated by Section 154 Cr.P.C. and all other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 Cr.P.C. and no such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. In this regard, Mr. Luthra relied upon the judgment of Hon'ble Supreme Court of India in the case of T.T. Antony v. State of Kerala, (2001) 6 SCC
181. In respect of this settled principle of law Mr. Luthra also relied upon the judgment of Hon'ble Supreme Court of India in the case of Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 wherein the Hon'ble Supreme Court of India reiterated the settled principle of law that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution and also went on to observe that in C. Muniappan & Others Vs. The State of Tamil Nadu reported in (2010) 9 SCC 567 the Hon'ble Supreme Court of India enunciated the "consequence test" i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law or in other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR.
7. It is then submitted by Mr. Luthra as the report under section 173 of the Code of Criminal Procedure is a half-baked one and filed on 7 W.P. (Cr) No.274 of 2019 extraneous considerations and also there is a delay in lodging of the FIR hence the same amounts to an abuse of process of court therefore the same is liable to be quashed.
8. It is then submitted by Mr. Luthra that as the charge-sheet of the co- accused Mr. Bandhu Tirkey is contradictory to the charge-sheet of the petitioner hence the two cannot sustain together. Mr. Luthra also defended the awarding of contract to M/s. Cineyug on the ground that the same is more attractive as that included the payment to be made to the film actors and the State at a later date in the year 2011 awarded the contract to M/s. Cineyug at a higher rate.
9. So far as the allegation against the petitioner of causing loss to the government exchequer to the tune of ₹ 9,81,477/-is concerned, it is submitted by Mr. Luthra that the petitioner being the Vice President of the Indian Olympic Association was entitled to be accommodated in a hotel as per clause 24 of the Host City Contract. Further it is submitted that by virtue of being designated as Minister, the petitioner was entitled to stay in hotel accommodation as per the code of conduct for ministers issued by the PMO.
10. So far as the allegation against the petitioner regarding payment of ₹ 50 lakhs to the Indian Olympic Association is concerned, it is submitted by Mr. Luthra that as mentioned in the charge-sheet against the co- accused Mr. Bandhu Tirkey, the co-accused showed undue haste in payment of the said amount but the same was a unilateral decision of the said co-accused in capacity of Minister (Sports) and the petitioner was no way responsible for the same.
11. Regarding the ingredients of the offences punishable under section 120B of the Indian Penal Code, Mr. Luthra relied upon the judgment of Hon'ble Supreme Court of India in the case of P.K. Narayanan versus State of Kerala reported in 1994 (3) Crimes 850, wherein the Hon'ble court has observed in paragraph 10 that to constitute the offence punishable under section 120 B of Indian Penal Code there should be an agreement between the persons who are alleged to have conspired and the said agreement should be before doing of an illegal act or for doing by illegal 8 W.P. (Cr) No.274 of 2019 means an act which by itself may not be legal and such agreement can be proved either by direct evidence or by circumstantial evidence or by both. The Hon'ble Supreme Court of India further went on to add that it is a matter of common experience that direct evidence to prove conspiracy is rarely available. It is pertinent to mention here that in the said case the principal offence involved was punishable under section 302 of the Indian Penal Code.
12. Though Mr. Luthra also relied upon the judgment of Delhi High Court in the case of L. K. Advani and others versus Central Bureau of Investigation reported in 66 (1997) Delhi Law Times 618 but the same is not relevant because to this case as the facts of that case are entirely different from the facts of this case.
13. Mr. Luthra next relied upon the judgment of Hon'ble Supreme Court of India in the case of State of Gujarat versus Mohammed Atik and others (1998)4 SCC 351 wherein the Hon'ble Supreme Court of India has inter alia held that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of section 10 of the Evidence Act.
14. It is lastly submitted by Mr. Luthra that the entire criminal proceeding including the First Information Report No. 49/ 2010/ Vigilance dated 06.10.2010, the charge-sheet and the cognizance/ summoning order be quashed.
15. Mr. Suraj Verma the learned Special Public Prosecutor on the other hand vehemently opposes the prayer of the petitioner and submitted that during the course of investigation the petitioner was examined by the investigating officer several times but he failed to justify his misconduct in capacity of the working chairman of National Games Organizing Committee. It is then submitted by Mr. Verma that the facts of the case gives rise to a conclusion and irresistible inference that an agreement existed between the petitioner and the co-accused persons including Mr. Bandhu Tirkey for causing wrongful loss of the government money and the corresponding wrongful gain to them, in criminal conspiracy with each other. It is then submitted that the audit report of the Accountant 9 W.P. (Cr) No.274 of 2019 General, Jharkhand contains the financial irregularity to the amount of ₹28,38,09,000/- as mentioned in detail at pages 7 to 14 of the counter affidavit dated 15.10.2019 filed in this case. It is then submitted that as mentioned in paragraph-14 of the said counter affidavit the sanctioning authority has accorded the sanction for prosecution against the petitioner after application of its judicious mind hence there is no abuse of any process of law in this score.
16. It is then submitted by Mr. Verma that the petitioner was never a Minister in the Government of Jharkhand and he was only accorded the status of a Minister in terms of the relevant notification which made him entitled to stay only in Government guesthouses at the expenses of the State of Jharkhand; so the Code of Conduct for Ministers issued by the PMO which is for the ministers of the central government is certainly not applicable to the petitioner. It is then submitted that the petitioner has failed to produce any document to show that he stayed in the hotel in capacity of the Vice-President of the Indian Olympic Association during the investigation of the case and if it is his defence he can take it during the trial of the case and certainly at this stage a mini trial cannot be conducted by this writ court on the basis of affidavits and counter- affidavits to arrive at any conclusion regarding the justification on the part of the petitioner for defrauding the state of Jharkhand to the tune of ₹9,81,477/-and without a full dress trial being conducted, hence it is submitted that this writ court ought not quash the entire criminal proceeding on this score.
17. Mr. Verma next submits that the contention of the petitioner that he was not in picture till September 2009 and that the petitioner had no role in defrauding the State of Jharkhand to the tune of ₹ 50 lakhs and he had no nexus with the co-accused Bandhu Tirkey is a fallacious statement and belied from the facts available in the record as it is evident from the admitted documents filed in this writ application itself by the petitioner in shape of annexure-10, which is a copy of the minutes of the Annual General Meeting of the Indian Olympic Association dated 16.11.2007 that on that day the petitioner himself introduced the co-accused Bandhu 10 W.P. (Cr) No.274 of 2019 Tirkey who was the then Sports Minister of the Government of Jharkhand and spoke highly about him which is one of the admitted facts which go to show that the petitioner was working in tandem with the said co- accused person. Further the statement of the witnesses as well as the documents which were collected during the investigation of the case go to show that the petitioner in criminal conspiracy with the co-accused Bandhu Tirkey was instrumental in defrauding the State of Jharkhand to the tune of ₹ 50 lakhs and by no stretch of imagination it can be said that continuing with the instant criminal proceeding in which charge-sheet has already been submitted against the petitioner and cognizance of the offences has been taken by the learned trial court amounts to abuse of process of the court.
18. Mr. Verma next submitted that there is no dispute about the settled principle of law as has been held by the Hon'ble Supreme Court of India in a Catena of cases including the case of T.T.Antony Versus State of Kerala (supra) and Amit Bhai Anil Chandra Shah versus Central Bureau of Investigation (supra) that for the same offences the second FIR cannot lie and is to be quashed by the competent court but the fact is that FIR of this case is the only FIR relating to these offences and the petitioner has failed to bring on record any document to show that there was ever any preliminary enquiry registered in connection with these offences.
19. Mr. Verma relying upon the judgment of Hon'ble Supreme Court of India in the case of Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 paragraphs 8 and 9 of which read as under:-
"8. Xxxxxxxxxxx. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.
9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is 11 W.P. (Cr) No.274 of 2019 required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial." (Emphasis supplied) next submitted that it is a settled principle of law that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether prima facie case has been made out for summoning the accused persons and at this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. It is further submitted that as the cognizance has been taken of the offence and not the offender-petitioner hence the cognizance of the offence cannot be quashed.
20. Regarding the principle of criminal conspiracy and the scope of interference in exercise of the power under section 482 of the Code of Criminal Procedure at the stage of framing of charge Mr. Verma relied upon the judgment of Hon'ble Supreme Court of India in the case of State through Central Bureau of Investigation v. Dr. Anup Kumar Srivastava, (2017) 15 SCC 560 wherein in paragraph 26 and 30, the Hon'ble Supreme Court of India held as under :
"26. Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in 12 W.P. (Cr) No.274 of 2019 question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do.
30. Xxxxxx The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court, a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exist, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."
And submitted that the scope of interference in exercise of the power under section 482 of the Code of Criminal Procedure by the court for quashing the FIR or charge sheet is much less in comparison with the scope of interference at the stage of framing of charge.
21. Mr. Verma next submitted that there is ample evidence in the record to ensure conviction of the petitioner in the trial and the validity of the sanction can also be examined by the trial court during the trial, hence it is submitted by Mr. Verma that there is no rhyme or reason to quash the criminal proceeding against the petitioner or for that matter the FIR and it is submitted that this petition being without any merit be dismissed.
22. Having heard the submissions made at the bar and after carefully going through the materials in the record, so far as the contention of the petitioner regarding the sanction order of prosecution of the petitioner being improper is concerned it is a settled principle of law that the 13 W.P. (Cr) No.274 of 2019 invalidity of the sanction is to be raised during the trial as has been held by the Hon'ble Supreme Court of India in the case of C.B.I. vs. Mrs. Pramila Virendra Kumar Agrawal & Another reported in 2019 SCC OnLine SC 1265 wherein the Hon'ble Supreme Court of India has held as under in paragraph-13:-
13. "Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of nonapplication of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial". (Emphasis Supplied) Hence this court is of the considered view that the second prayer of the petitioner to quash the order granting sanction passed in July, 2019 for prosecuting the petitioner in F.I.R. Case No.49/ 2010/ Vigilance and thereafter on the ground that the same being nonest and illegal is not tenable at this stage and the petitioner is free and is at liberty to raise the same during the trial of the case.
23. Now coming to the first and third prayer of the petitioner for quashing the entire criminal proceeding as well as the FIR as also the cognizance order on the ground that this is not the first information report of the offences is concerned, as has rightly been pointed out by the learned special public prosecutor, though the petitioner has filed several voluminous documents by way of annexures and affidavits yet no material could be produced by the petitioner before this court to suggest that any preliminary enquiry involving the same offences for which F.I.R. Case No.49/ 2010 has been registered is pending before any competent investigating agency or even was ever registered. Hence this court has no hesitation in holding that this ground of the petitioner has no legs to stand.
14 W.P. (Cr) No.274 of 201924. So far as the contention of the petitioner that the continuation of this criminal proceeding amounts to an abuse of process of court is concerned, this court being conscious of the fact that observations on the merits of the case at this stage may affect one or the other party during the trial restricts itself by not discussing in detail the materials available in the record against the petitioner but the undisputed fact remains that ₹ 50 lakhs of government money was undeservingly paid to the Indian Olympic Association. Even the petitioner did not justify payment of the said amount to the Indian Olympic Association. The only contention of the petitioner in this respect is that the petitioner was not privy to the said act rather the co-accused Bandhu Tirkey was wholly and solely responsible for the same was but as rightly pointed out by the learned special public prosecutor that it is the admitted case of the petitioner as is evident from the documents filed by the petitioner in this writ application itself vide annexure -10, that the petitioner was known to the co-accused in connection with the holding of the 34th National Games and the petitioner introduced him way back on 16.11.2007 in the meeting of the Indian Olympic Association and spoke highly about him. In view of this admission of the petitioner based on the documents filed by himself in this writ application the contention of Mr. Luthra the learned senior counsel appearing for the petitioner that till September 2009, all actions relating to the said National Games work were done by the Government of Jharkhand to the exclusion of the petitioner does not inspire confidence and certainly this ground is not of such nature for which a criminal proceeding be quashed without a full dress trial.
25. The contention of Mr. Luthra that issuing work order to M/S. Cineyug in preference over the lowest bidder on the basis of C.D. presentation also is not of such nature so as to come to a conclusion that continuation of this criminal proceeding will amount to an abuse of process of court because contrary to the submission of Mr. Luthra, the documents in the record show that M/s Carving Dreams quoted a much less price and the higher negotiated price of M/s. Cineyug does not include the cost of payment to the film actors and this was done violating 15 W.P. (Cr) No.274 of 2019 the Financial Rules of the government and ignoring the deprecation of the Accountant General of the practice of issuing work orders to a bidder other than the lowest bidder in the tender process on the basis of C.D. presentation as the same leaves room for fraud as has exactly alleged to have been done in this case by the petitioner.
26. So far as the contention of the petitioner justifying his accommodation in a hotel though he was entitled to stay only in a government guesthouse is concerned, the submissions of Mr. Luthra the learned senior counsel for the petitioner justifying such accommodation in hotel is at best a defence of the petitioner which is open to be taken by him during the trial. In the absence of any document available in the record of this case, suffice is to say that the documents available in the record do not suggest that the petitioner stayed in the hotel in capacity of Vice President of the Indian Olympic Association.
27. After carefully going through the materials in the record this court finds that there is specific allegation against the petitioner of being involved in criminal conspiracy and thereby causing wrongful loss to the State of Jharkhand of huge amount of money as already mentioned above and wrongful gain of the corresponding amount to himself and the co- accused persons. Thus certainly this is not a case where it can be said that continuing the criminal prosecution of the petitioner for specific allegation against him for the offences- the cognizance of which has already been taken by the learned trial court, be termed as an abuse of process of court. As already discussed above, the reason for which quashing of the criminal proceeding is sought are basically the defences of the petitioner, the veracity of which can be examined only in a full dress trial of the case. Thus in the considered view of this court, there is no justifiable reason for quashing of the entire criminal proceeding including the First Information Report No. 49/ 2010/ Vigilance dated 06.10.2010 registered for the offences punishable under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) (d) of the Prevention of Corruption Act, 1988 or for that matter order dated 02.12.2019 passed by the learned the Special Judge (ACB), Ranchi whereby 16 W.P. (Cr) No.274 of 2019 and where under the learned court below has taken cognizance of the offences punishable under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) (d) of the Prevention of Corruption Act, 1988 and directed for the issue of summons against the petitioner along with the co-accused person. For the same reasons there is also no justification to quash the charge-sheet.
28. Accordingly this petition being without any merit is dismissed. In view of the dismissal of the petition all interim orders passed in this case stand vacated and the interlocutory application if any stand disposed of.
29. It is made clear that this Court has not expressed any opinion regarding the validity or otherwise of the sanction for the prosecution or for that matter on the merits of the case and the trial court is directed to proceed with the case without being prejudiced by any observations made in this order.
(Anil Kumar Choudhary, J.) In the High Court of Jharkhand, Ranchi Dated 06/07 /2021 AFR/ Animesh 17