Patna High Court - Orders
Madhusudan Mukherjee & Anr vs The State Of Bihar & Anr on 31 March, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.39666 of 2007
1. Madhusudan Mukherjee, son of late Prabhalo Nath Mukherjee,
Resident of Sri Nagar Hata, P.S. Khazanchi Hat, District-Purnea
2. Shankar Prasad Sahu, son of Late Ram Swaroop Sahu, Resident of
Goraiya Bathan, P.S. Gogari, District0-Khagaria ..... Petitioners
Versus
1. The State of Bihar
2. The Inspector General-cum-Special Secretary, Cabinet Vigilance
Department, Bureau of Investigation, Bihar, Patna
............ Opposite Parties.
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For the petitioner:- M/S Sanjeev Kumar, Ritesh Kumar Narayan Singh
and Pawan Kumar, Advocates
For the State: Mr. Z. Hoda, APP
For the Vigilance: Mr. Rajendra Prasad Giri, Addl. Spl. P.P. Cabinet
(Vigilance) Department.
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12. 31.03.2009Heard learned counsels for the parties.
The two petitioners seek quashing of the order dated 24.4.2007 passed by Special Judge, Vigilance, Patna in Special Case Nos. 18/1992/ 21/2005 by which cognizance has been taken against them and others under Sections 420, 477(A) and 120(B) IPC and Section 5(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
The short facts leading up to the taking of cognizance in the present matter is that on the basis of the written report dated 15.2.1983 of the Assistant Secretary, Road Construction Department, Government of Bihar before the Officer-in-charge, Vigilance Police Station, Patna irregularities were alleged to have been committed in the purchase of building materials in the Building Division, Purnea under Public Works Department since March, 1980 to 1981. It was alleged that for the purchase of material an amount of Rs. 84 lacs was -2- allotted by the Chief Engineer and against the same the Executive Engineer invited two tenders. The Superintending Engineer and the Chief Engineer had approved Rs. 5,41,689/- and Rs. 4,80, 050/- only but without making agreement against each of the said amounts as many as 65 and 105 agreements of Rs. 50,000/- each were made with M/S Apna Construction Society, Barh and Shashi Bhushan Prasad Singh, Bhatgama, Barh and against the said agreements Rs. 32,34,825/- and Rs. 56,36,325/- were passed. The said persons were neither manufacturer nor stockist of the said articles and the articles were not such which were available with difficulty. It was further alleged that the articles in question were normally supplied by the contractor undertaking main construction or the contractor carrying out repair works but the said articles in the present case were purchased in such excessive quantity that they cannot be utilized in many years and are likely to be destroyed after a lapse of time and thus the funds have been misused. The further allegation is that the article had been purchased many times over the scheduled rate or the market rate and thus the articles worth Rs. 21.80 lacs have been purchased at a price of Rs. 89.72 lacs as a result of which Rs. 67.92 lacs have been paid in excess. It is also alleged that the two advertisements were, as a matter of fact, not published in the newspapers rather the notice of the said advertisement were sent to a few contractors. For all the aforesaid allegations the Executive Engineer, Shiv Mangal Singh was found to be responsible and accordingly it was requested to institute a case under Section -3- 5(1)(d)/5(2) of the Prevention of Corruption Act and Section 420 of the IPC against the said Executive Engineer. On the basis of the said written report Vigilance P.S. Case No. 1/83 dated 25.2.1983 was registered under the aforesaid Sections against Sheo Mangal Singh, Executive Engineer, Building Construction Department, P.W.D., Purnea. After investigation chargesheet no. 18 was submitted on 11.8.1994 against the aforesaid Sheo Mangal Singh, Executive Engineer, Ravi Bhushan Prasad, Superintending Engineer, Dinanath Verma, Junior Engineer and other clerical and Accounts staff of the Building Division, Purnea but not the petitioners.
By letter No. 001/83-3520 dated 4.8.93 of the office of Inspector General-cum- Special Secretary, Cabinet Vigilance Department, Investigation Bureau, Patna addressed to the Engineer-in- Chief-cum- Additional Commissioner-cum- Special Secretary, Road Construction Department for sanction for prosecution in the aforesaid case was sought against the petitioner, Madhusudan Mukherjee and Shanker Prasad Sahu as also three others. Both the petitioners were Junior Engineers at the relevant time. The Engineer-in-Chief-cum- Additional Secretary-cum-Special Secretary, Cabinet Vigilance Department by his memo no. 2-037/94 dated 7.8.95 (Annexure-2) sent to Inspector General-cum-Special Secretary, Cabinet, Vigilance Department after referring to the provisions of the Bihar Financial Rules, Bihar Public Works Accounts Code and Bihar Government Servants Conduct Rules, 1976 came to the conclusion that under the aforesaid provisions the Junior Engineers have no role to play either -4- in the matter of approving the tender which power has been exclusively provided to the Executive Engineer, Superintending Engineer, Chief Engineer or the concerned Works Department on the basis of recommendation of the Tender Committee and further the only duty of the said Junior Engineers is to receive the building materials and to test, count and measure them and to enter the materials in the measurement book and also enter them in the stock register and to grant receipt, and on the orders of the Executive Engineer or Sub-Divisional Officer to issue the materials on indent forms. The Junior Engineers are further required to send the monthly accounts of the materials in the stores to the Sub-Divisional Officer. It was thus concluded by the Engineer-in-Chief that the concerned Executive Engineer on the basis of the provisions of the Bihar Government Servants Conduct Rules must have purchased the aforesaid materials on the basis of his best judgment and not that of Junior Engineers who are two stages lower in hierarchy than him. For the said reasons, it was held by him in the said letter that there was no justification for grant of sanction for prosecution against the said Junior Engineers including these two petitioners.
Subsequently, after a long gap of time by office order dated 20.1.2006 of the Commissioner-cum-Secretary, Road Construction Department and 20.5.2006 of the Secretary, Law Department, Government of Bihar sanction for prosecution was accorded against petitioner no. 2 and others and petitioner no. 1 and others respectively. On the basis of the sanctions thus accorded a -5- second supplementary chargesheet no. 45/06 dated 2.9.2006 was submitted against the two petitioners and others under Sections 420,477A, 120B IPC and Section 5(2) read with Section 13(1)(d) of the Prevention of Corruption Act. On the basis of the second supplementary chargesheet by the impugned order dated 24.4.2007, the Special Judge, Vigilance-I, Patna has taken cognizance against the two petitioners and others.
Learned counsel for the petitioner submits that the FIR was filed against the Executive Engineer only and these two petitioners were not named in the FIR; subsequently, these petitioners were not named as accused persons even in the charge-sheet submitted on 11.8.1994 or in the supplementary chargesheet submitted on 13.8.1998 and thus it has to be presumed that there was no material against these petitioners till the submission of either the first chargesheet or the supplementary chargesheet; thereafter all of a sudden, the petitioners have been named in the second supplementary chargesheet filed on 2.9.2006 but from perusal of the said chargesheet no fresh material appears to have been placed before the Court to come to any conclusion regarding the guilt of the petitioners so as to take any cognizance against them. It is submitted that the submission of the second supplementary chargesheet after 23 years of the filing of the FIR in the case that too without any further investigation and without any fresh material would go to show that it was not a fit case for taking cognizance against these petitioners. Learned counsel submits that without any fresh material in the second supplementary -6- charge sheet the court below has taken cognizance against the petitioner. Since the said supplementary chargesheet was without any further investigation and fresh materials, it would be contrary to the provisions of Section 173(8) of the Code of Criminal Procedure. In this regard, learned counsel for the petitioner refers to the decision of a Division Bench of this Court in the case of Yamuna Pathak Vs. The State of Bihar & anr: 1994(2) PLJR 96, in paragraph nos. 9 to 12 of which it was held as follows:-
" 9. From a simple perusal of the above provision of law, it is crystal clear that a supplementary charge- sheet can legally be submitted provided "further investigation" in respect of an offence after the first charge-sheet is submitted is held and upon such further investigation, "further evidence" is obtained. Thus a supplementary charge-sheet can be submitted in respect of additional evidence collected in course of further investigation held which could not be available in course of the investigation held earlier.
10. In the instant case, no further investigation appears to have been held and no fresh or additional evidence has been obtained which was not available during the investigation held before submission of the charge-sheet No. 19, dated 17.3.1985. What has been done is reconsideration of the evidence which was already before the investigating agency prior to submitting the first charge-sheet No. 19 dated 17.3.1985 after consideration of which the learned Chief Judicial Magistrate had discharged petitioner Yamuna Pathak by his order dated 6.7.1985.
11. In view of the above, we are of considered view that the charge-sheet No. 49, dated 17.3.1989, which has been called supplementary charge-sheet as envisaged under Section 173(8) of the Code of Criminal Procedure. It is a subsequent charge-sheet submitted on the basis of the same material which had already been collected before submission of charge-sheet No. 19, dated 17.3.1985.
12. We, therefore, find that the impugned order dated 30.7.1992 passed in T.R. No. 35 of 1991 is without jurisdiction and bad in the eye of law and cannot -7- legally be sustained."
He also relies upon a decision of a learned Single Judge of this Court in the case of S.N.Singh Vs. The State of Bihar:
1996(2) PLJR 158, in para-6 of which it has been held as follows:
" In support of the supplementary charge-sheet, practically, nothing could be submitted before this Court, against the contention of the petitioner that due to political pressure, he was made to be an accused in the case although on the materials on records, there is nothing against him and when in the first charge-sheet, it has been stated specifically that no materials could be found against the petitioner, then in the supplementary charge-sheet submitted under Section 173(8) of the Cr.P.C. unless there is fresh investigation and fresh materials, no charge- sheet can be submitted against the petitioner"
Learned counsel also relies upon a decision on the same point of learned Single Judge Bench of this Court in the case of Manilal Keshri & Ors. Vs. The State of Bihar: 2006(4) PLJR 32, in which relying upon the aforesaid two decisions, in para-12 it has been held as follows:-
"In the present case, admittedly, there was no fresh material for submission of the second charge-sheet. The second charge-sheet was submitted only on reconsideration of evidence already collected at the time of earlier submission of the charge-sheet. In this view the second charge-sheet as well as order taking cognizance cannot be considered in consonance with the provision of Section 173(8) of the Criminal Procedure Code."
Learned counsel has also sought to argue that the sanctions for prosecution accorded on 20.1.2006 and 19.5.2006 are contrary to law and without any independent application of mind on -8- the dictates of the Deputy Inspector General, Cabinet(Vigilance) Department since no reason has been assigned for the same.
It is also urged by learned counsel for the petitioner that cognizance could not have been taken after a delay of nearly 23 years of the filing of the FIR. Such delay, according to learned counsel, defeats the right of the petitioner for speedy trial and when nothing was stated against the petitioner either in the first charge-sheet or the supplementary charge-sheet there was no occasion for the Court to have taken cognizance on the basis of the supplementary charge- sheet which does not disclose any fresh material. In support of the said proposition, learned counsel relies upon a decision of the Supreme Court in the case of Mahendra Lal Das Vs. The State of Bihar & ors:
2001(4) PLJR 183 (SC) in which the Supreme Court had quashed the criminal proceedings under the Prevention of Corruption Act against the petitioner of that case on the ground of delay of 13 years in granting sanction for prosecution holding in paragraph nos. 5 to 8 as follows:-
"5. It is true that interference by the Court at the investigation stage is not called for. However, it is equally true that the investigating agency cannot be given the latitude of protracting the conclusion of the investigation without any limit of time. This Court in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. [(1992) 1 SCC 225] while interpreting the scope of Article 21 of the Constitution held that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and re- trial. While determining the alleged delay, the court -9- has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work- load of the Court concerned, prevailing local conditions, etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a presentive proof of prejudice.
6. In this case the prosecution has miserably failed to explain the delay of more than 13 years by now, in granting the sanction for prosecution of the appellant- accused of possessing disproportionate wealth of about Rs. 50,600/-. The authorities of the respondent- State also appear to be not satisfied about the merits of the case and were convinced that despite granting of sanction the trial would be a mere formality and exercise in futility.
7. In cases of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay. As and when delay is found to have been caused during the investigation, inquiry or trial, the concerned appropriate authorities are under an obligation to find out and deal with the persons responsible for such delay. The delay can be attributed either to the connivance of the authorities with the accused or used as a lever to pressurize and harass the accused as is alleged to have been done to the appellant in this case. The appellant has submitted that due to registration of the case and pendency of the investigation he lost his chance of promotion to the post of Chief Engineer. It is common knowledge that promotions are withheld when proceedings with respect to allegations of corruption are pending against the incumbent. The appellant has further alleged that he has been deprived the love, affection and the society of his children who were residing in foreign country as on account of the pendency of the investigation he could not afford to leave the country.
8. This Court in Ramanand Chaudhary Vs. State of Bihar & Ors. [AIR 1994 Sc 948] quashed the investigation against the accused on account of not granting the sanction for more than 13 years. The
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facts of the present case are almost identical. No useful purpose would be served to put the appellant at trial at this belated stage."
Learned counsel for the Vigilance, on the other hand, submits that the Court below has rightly taken cognizance on the basis of the supplementary charge-sheet that has been submitted. It is stated that there was sufficient material against the petitioner in the original charge-sheet and only on account of sanction not having been accorded earlier the charge-sheet had not been submitted against the petitioners. It is contended that the Administrative Department had refused to accord sanction on flimsy ground and ultimately when the matter was re-considered by them and sanction was accorded on the basis of the materials found against them during the course of investigation, the second supplementary charge-sheet was submitted against the petitioners. It is urged that the petitioners ought not to be permitted to go unscathed due to the fact of the sanction not having been accorded earlier when the Investigating Agency, i.e., the Vigilance Department, had been constantly approaching the authorities for grant of sanction. It is thus contended by learned counsel that when the charge-sheet had been filed on the basis of sufficient materials collected during the course of investigation cognizance ought not to be quashed except in the rarest of the rare cases as held by a learned Single Judge of this Court in the case of Md. Nasimuddin Vs. The Union of India: 1997(2) PLJR 405, in para-7 of the judgment wherein it has been held as follows:-
" The contention of the learned counsel for the petitioner that in case of false statement regarding
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annual income the Indian Oil Corporation could have terminated the dealership and in that view no other action is warranted, it may be said that the Indian Oil Corporation had reserved the right to terminate the dealership being any statement regarding income was found to be untrue but that by itself did not absolve a person from criminal liability if when an offence has been committed by making false statement or representation. According to the first information report as well as the charge sheet the dealership was obtained by making false statement and concealing the real income and this was done in order to show the petitioner to be a person who was having annual income not exceeding Rs. 50,000/- so as to be eligible to apply for the dealership. I have also perused the case diary which has been produced by the learned counsel for the CBI. No reference to the evidence collected in the investigation is to be made here. Suffice it to say that the charge-sheet is based on the basis of materials collected during investigation. If a charge sheet has been led after investigation the cognizance order ought not to be quashed under inherent powers of the Court. The Supreme Court in the case of State of H.P. Vs. Pirthi Chand (1996)2 Supreme Court Cases 37) has observed that after the investigation is concluded and the charge sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure in support of the charge sheet and at that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance as it would be done after the trial is concluded. It has further observed that the court has to prima facie consider from the averments in the charge sheet and the statements of the witnesses on the record in support thereof whether the court could take cognizance of the offence on that evidence and proceed further with the trial. It is also observed that when Investigating Officer spends considerable time to collect the evidence and places the charge sheet before the court, further action should not be short circuited by resorting to exercise inherent power to quash the charge sheet. The Supreme Court has held that only in exceptional cases i.e. in rarest of rare cases of malafide initiation of the proceedings to wreak private vengeance the criminal process is availed of in laying a complaint or FIR which itself does not disclose at all any cognizable offence and
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the court may embark upon the consideration thereof and exercise the power. Keeping in view the principles laid down by the Apex Court in the said case it does not appear to be a rarest of rare case so as to exercise inherent power of the court to quash cognizance order which is based on the charge sheet and the materials contained in the case diary. If the petitioner has any defence he can make it at the trial at the proper stage and the trial court may consider the same. In my opinion, it is not a fit case for quashing the cognizance order under the inherent powers of this Court. The application is dismissed accordingly."
Learned counsel also relies upon a decision of the Gujarat High Court in the case of Deepak Dwarkadas Patel and another Vs. State of Gujarat: 1980 Cri.L.J.29 (Gujarat).
So far as the contention of learned counsel for the petitioner that a supplementary charge sheet filed without any fresh materials on the basis of the further investigation is contrary to Section 173(8) of the Code of Criminal Procedure is concerned, the same although supported by a Division Bench and two Single Judge h judgments of this Court, does not appear to be correct. The aforesaid Division Bench judgment and the decisions of the two learned Single Judges of this Court has not taken into account the decision of a Full Bench of this Court in the case of Shankar Ram Vs. The State: 1986 PLJR 287. In the said decision the Full Bench had specifically referred to decisions of a Division Bench in Suresh Singh Vs. The State & Ors: 1977 PLJR 523 followed by another Division Bench in Phulena Rai V. State of Bihar and others: 1979 BBCJ 219, which in turn were followed by a learned Single Judge in Reshamlal Vs. State of Bihar:
1981 Cr.L.J. 976, wherein it was held that Section 173(8) does not
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necessarily contemplate reopening of the investigation and the same can also be done on materials available or obtained earlier and all the three said decisions were overruled. Interpreting Section 173(8) of the Cr.P.C. it was held by the Court in para 15 of the judgment as follows:-
"..... Indeed the use of the terminology of reopening the investigation in the context of the express provision of sub-section (8) of Section 173 is somewhat unhappy. The statute does not employ any such terminology of reopening investigation thereunder. It expressly talks of further investigation or of further report or reports. Furtherance is not reopening. Consequently such police reports under section 173 (8) may be more aptly named either as further police reports or additional, supplementary or revised police reports. As already noticed, they may not imply any semblance of any reopening of a completed investigation against some of the accused at all."
The Full Bench, in para 16 of the judgement, approved the observations quoted below of a learned Single Judge of the Madras High Court in the case of P.G. Periasamy Vs. Inspector of Police, Pennagaram: 1984 Cr.L.J. 239, which had expressly dissented from the view of the learned Single Judge of this Court in Reshamlal Vs. State of Bihar:1981 Cr.L.J. 976: 1981 PLJR 176 (supra):-
"....... Section 173 of the Code does not say anything about the filing of one or more charge- sheets on the basis of the same investigation. There is no specific provision empowering an investigating officer to file a revised charge-sheet on the basis of the same materials on which the first charge-sheet was filed nor does the section prohibit the filing of a revised charge-sheet on the basis of the same materials. On the other hand, all that sub-section (2)
(i) of S. 173 states is that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a
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report in the form prescribed by the State Government. Section 173(8) has been newly added in order to make it expressly clear that merely because an Investigating Officer has sent a police report to the Magistrate he will not stand precluded from making further investigation in the case and submitting a further report or reports to the Magistrate regarding the additional evidence gathered by him in the further investigation. Because of this express provision, it should not be taken that if a police officer had committed an error in giving full and proper particulars regarding the names of parties, the nature of information, the names of witnesses, etc. in his first report, he cannot correct the mistake by filing a second report. When the Code provides for even further investigation being done after a report is filed before a Magistrate, there can be no bar whatever for the police filing a second or revised report on the materials already gathered during the investigation, especially when the second report is intended to set right certain mistakes or omissions in the first report. The matter should therefore, be viewed in its proper perspective. Otherwise, the interests of the State, which in other words, would mean the interests of society, would suffer. On the contrary, if the contention of Mr. Krishnan is accepted, the resultant position would be that even if there are adequate materials against a person, he can get away without even trial on account of a mistake or error committed by the investigating Officer in laying a proper report before the Magistrate."
It is evident from the aforesaid decision of the Full Bench in Shankar Ram's case (supra) approving the above observations of the Madras High Court that there can be no bar whatever for the police filing a second or revised charge sheet on the materials already gathered during the investigation, holding that in the interest of the State, i.e., the interest of the society, if there are adequate materials against a person then he can not be allowed to get away without even a trial on account of mistake or error committed by the Investigating Officer in not laying a proper report before the
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Magistrate.
Thus, in view of the aforesaid decision of the Full Bench it has to be held that the decisions of the Division Bench in the case of Yamuna Pathak (supra) and the two Single Judges of this Court in the case of S.N.Singh (supra) and Manilal Keshri (supra) having not taken into account the earlier decision of the Full Bench in Shankar Ram's case (supra) are per incuriam. However, in fairness to the Division Bench in Yamuna Pathak's case (supra) it must be pointed out that the petitioner Yamuna Pathak in that case had been discharged earlier on a consideration of the materials in the first charge sheet, and without any fresh material on further investigation but only on reconsideration of the evidence before the first charge sheet, he was again charge sheeted. Similarly, in S.N.Singh's case (supra) in the first charge sheet it was specifically stated that no material could be found against the petitioner and yet on the same material due to political pressure the supplementary charge sheet was filed against him. Thus, it appears that the said two cases were otherwise correctly decided in the facts and circumstances of those cases, although the wide observations made therein regarding the scope of Section 173(8) Cr.P.C. run contrary to the Full Bench in Shankar Ram's case and would therefore have no binding force as precedent.
It is therefore, held that it is open to the Investigating Agency to file supplementary charge-sheet without there being any additional investigation or fresh materials on the basis of the materials
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which had already been collected in the course of the previous investigation.
This Court, however finds force in the submission of learned counsel for the petitioners regarding grant of sanction after such an inordinate delay of nearly 23 years without assigning any reasons when earlier the sanction for prosecution was refused for reasons clearly stated in the letter dated 7.8.1995 of the Engineer-in- Chief-cum- Additional Commissioner-cum-Special Secretary, Road Construction Department. It is evident that the subsequent sanction has been granted on the same materials which was before the Engineer-in-Chief and after considering which and recording detailed reasons the Engineer-in-Chief had earlier refused to accord sanction. There is nothing in the sanction orders of 2006 to show as to what reasons have weighed with the sanctioning authority to come to a different conclusions on the basis of the same materials and without meeting the reasons which have been given in the earlier order dated 7.8.1995 refusing the sanction. The orders dated 20.1.2006 and 20.5.2006 according sanction for prosecution therefore suffer from the vice of non-application of mind, in the circumstances of the case, and are accordingly quashed in relation to the two petitioners.
It is also to be considered that the occurrence itself is of the year 1980-81 and the FIR was lodged on 15.2.1983. The present case thus stands on a much better footing than Mahendra Lal Das's case (supra) which in its turn relied upon the case of Ramanand Chaudhary Vs. State of Bihar & Ors: AIR 1994 SC 948, in both of
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which the Apex Court had quashed the proceedings/ investigation on the ground of non-grant of sanction after 13 years. In Mahendra Lal Das' case the Supreme Court had also taken into account the fact that the authorities of the Respondent-State appear to be not satisfied about the merits of the case and were convinced that despite granting of sanction the trial would be a mere formality and exercise in futility. Much stronger reasons had been assigned by the Engineer-in-chief in his letter dated 7.8.1995 while refusing the sanction for prosecution.
Thus, taking into account the entire facts and circumstances of the case, it is evident that the taking of cognizance and the holding of trial in the present matter amounts to denial of the right of speedy trial to the petitioners under Article 21 of the Constitution. In that view of the matter the order dated 24.4.2007 taking cognizance in so far as it concerns these two petitioners is fit to be quashed and is accordingly quashed.
The application is accordingly allowed and the criminal proceedings against the petitioners in Special Case No. 18/92 / 21/2005 are quashed.
S.Pandey/AFR (Ramesh Kumar Datta, J.)