Jharkhand High Court
Baleshwar Ram vs The Union Of India Through Central ... on 29 March, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.1014 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.1014 of 2020
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Baleshwar Ram, aged about 50 years, son of late Badhan Bedia, residing at Matwari, Hazaribagh, Post Hazaribagh, Police Station Hazaribagh, District Hazaribagh ... Petitioner Versus The Union of India through Central Bureau of Investigation ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mrs. Ritu Kumar, Advocate
Ms. Shreyanshi Verma, Advocate
Mr. Samavesh B. Deo, Advocate
Mrs. Shatakshi, Advocate
For the C.B.I. : Mr. Prashant Pallav, A.S.G.I.
Mr. Navneet Sahay, A.C. to A.S.G.I
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed under Section 482 Code of Criminal Procedure invoking the jurisdiction of this Court with a prayer for quashing the entire criminal proceeding including the Order dated 30.09.2019 taking cognizance for the offences punishable under Section 120 (B), 201, 420, 468, 471 of the Indian Penal Code and under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 in R.C. Case No. 04(A)/2013-R inter alia against the petitioner and the co-accused persons.
3. The brief facts of the case is that the co-accused persons respectively being the member, examination controller-cum-secretary of the Jharkhand Public Service Commission along with private personnel of M/s. Global 1 Cr. M.P. No.1014 of 2020 Informatics and inter alia the petitioner entered into a criminal conspiracy and in pursuance of the said criminal conspiracy, the public servants in abuse of their respective official positions, dishonestly and fraudulently ensured that the petitioner who secured less marks than the cut-off marks, was fraudulently and dishonestly declared successful in the result published by the Jharkhand Public Service Commission and was appointed as Lecturer in Hindi on the basis of eligibility attained by their fraudulent J.E.T. (Jharkhand Eligibility Test) results and the co-accused persons including the brother of the then Member of the Jharkhand Public Service Commission, sister of one of the members of the then member of Jharkhand Public Service Commission. It is further alleged that the co-accused public servants in criminal conspiracy with the petitioner and the other co-accused persons, using their official position dishonestly and fraudulently manipulated the merit list, assessment charts to extend undue benefit to their preferred candidates including the petitioner and under the guidance of Jharkhand Public Service Commission, the petitioner was declared qualified even though he secured marks less than the candidates who even after securing more marks, could not qualify for the post of Lecturers and the recruitment test was conducted in complete violation of the Jharkhand Public Service Commission (Rules of Procedure), 2002. It is further alleged that the allegation against the petitioner is that petitioner only received 100 marks in Paper III of the Jharkhand Eligibility Test whereas the minimum marks required for Hindi was 105 but still in criminal conspiracy with the co-accused public servants by committing cheating and forgery managed to get him appointed as lecturer in Hindi.
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4. After completion of investigation of the case, the Central Bureau of Investigation submitted charge-sheet inter alia finding that the petitioner along with the co-accused persons having committed the offences punishable under Sections 120 B, 201, 420, 468, 471 of the Indian Penal Code and under Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 though, as pointed out by the learned counsel for the petitioner also, in the individual page in the internal page-42 of the charge-sheet in serial No. (xvi) it has been mentioned that the petitioner has committed offences punishable "Under Acts & Sections- u/s 120B, 420, 468 & 471 of IPC" only and there is no reference of either under Section 201 of the IPC or the penal provisions of Prevention of Corruption Act, 1988 though in internal page-92 of the charge-sheet, it has categorically been mentioned that the facts and circumstances, prima facie disclose the commission of offences punishable u/s 120-B r/w 201/420/468/471 of IPC and Section 13 (2) r/w 13 (1) (d) of P.C. Act, 1988 in respect of all the accused persons including the petitioner. The learned trial court on perusal of the relevant documents found that the offence punishable under Sections 120 B, 201, 420, 468, 471 of the Indian Penal Code and under Section 13 (2) read with 13 (1)
(d) of the Prevention of Corruption Act, 1988 is made out inter alia against the petitioner and vide order dated 30.09.2019 took cognizance for the said offences inter alia against the petitioner.
5. Mrs. Ritu Kumar- learned counsel for the petitioner submits that the petitioner is not named in the F.I.R. and the name of the petitioner has been inserted by the investigating agency in the charge-sheet without any evidence against him. It is next submitted that the allegation inter alia 3 Cr. M.P. No.1014 of 2020 against the petitioner is highly absurd, obnoxious and concocted and only for the purpose of his false implication in this case in absence of any evidence of any overt act on the part of the petitioner, still the petitioner has been projected by the prosecuting- agencies during the investigation of the case as an accused person of this case. It is next submitted that the prosecuting agency has misunderstood and misinterpreted the facts and circumstances of the case entirely. As per the advertisement, three papers were prescribed for declaration of the candidates eligible for the post of Lecturer and the aggregate marks of these three papers were to be considered and not that minimum marks for Paper III. It is next submitted that because of this misconception, the Central Bureau of Investigation has alleged that securing of 105 marks in the Paper III was a sine qua non for being selected as a Lecturer in Hindi.
6. Drawing attention of this Court towards the copy of the order passed by a co-ordinate Bench of this Court in the case of Amardeep Vs. State of Jharhand and Others in W.P. (C) No.5095 of 2007 decided on 05.03.2009, learned counsel for the petitioner submits that as the said Amardeep, who was the unsuccessful candidate for selection of Lecturer in English, has obtained 60 marks in Paper I, 58 marks in Paper II and 104 marks in Paper III, thus, the average marks were 56 and the co-ordinate Bench allowed the writ petition of Amardeep and directed the respondent of that case to consider the case of Amardeep and declare him successful candidate in the test conducted by J.P.S.C. and similarly in the case of Manoj Kumar Gupta Vs. The State of Jharkhand & Another in W.P. (C). No.3705 of 2015 also the Division Bench of this Court held that the J.P.S.C. would not fix the 4 Cr. M.P. No.1014 of 2020 minimum marks for Paper III though the said judgment has been set aside by the Hon'ble Supreme Court of India subsequent to filing of the charge- sheet by the C.B.I. in this case vide its judgment dated 18.12.2019 in Jharkhand Public Service Commission Vs. Manoj Kumar Gupta & Another in Civil Appeal No.9441 of 2019 arising out of Special Leave Petition (Civil) No.14926 of 2017 by observing as under in paragraph-8:-
8. "In view of the above, we are of the considered opinion that the High Court erred in holding that the JPSC could not fix the minimum marks for Paper III. Hence, we set aside the judgment of the High Court dated 09.11.2016. The Civil Appeal No. 9441 of 2019 @ Special Leave Petition (Civil) No.14926 of 2017 filed by the Jharkhand Public Service Commission is allowed and C.A. No. 9442 of 2019 @Special Leave Petition (Civil) No.31106 of 2017 filed by the other side (writ petitioner) is dismissed."
7. Lastly, it is submitted that the entire criminal proceeding of R.C. Case No. 04(A)/2013-R as well as impugned order dated 30.09.2019 passed in R.C. Case No. 04(A)/2013-R, be quashed and set aside.
8. Mr. Prasahant Pallav-learned A.S.G.I. appearing for the C.B.I. on the other hand submits that this being a case of criminal conspiracy, direct evidence of involvement of the petitioner in any overt criminal act is not a sine qua non and the fact that even though the petitioner did not secure the minimum marks, still he has been selected as a Lecturer of Hindi speaks volumes about his complicity in the criminal conspiracy. It is further submitted that the minimum qualifying marks for English in the case of Amardeep was 100 in Paper III and Amardeep secured more than the minimum qualifying marks so on this score, the facts of case of Amardeep stand on different footing than this petition but as is in the case of Jharkhand Public Service Commission Vs. Manoj Kumar Gupta & Another in Civil Appeal No.9441 of 2019 arising out of Special Leave Petition (Civil) No.14926 of 2017, the Hon'ble Supreme Court of India, has 5 Cr. M.P. No.1014 of 2020 in no uncertain terms, held that the Jharkhand Public Service Commission has rightly fixed the minimum marks for Paper III. Hence, the said judgments of Amardeep (supra) or Manoj Kumar Gupta (supra) certainly cannot be a valid ground to quash the entire criminal proceeding.
9. It is next submitted by the learned counsel for the C.B.I. that there is no merit in the contention of the petitioner that no illegality was done in the selection process of the petitioner. It is then submitted that the impugned order taking cognizance categorically reflects the application of the judicial mind on the part of the learned trial court and there is no illegality in the impugned order and merely because the offence punishable under Section 201 of the Indian Penal Code or for that matter the penal provisions of Prevention of Corruption Act, 1988 was not mentioned in one of the formats of the description in the accused persons in the opening part of the charge- sheet because of oversight or printing error though the same has categorically been mentioned in paragraph 92 of the charge sheet; certainly the printing error in a particular page cannot debar the trial court when there are materials in the record to suggest that the petitioner was involved in criminal conspiracy in respect of the offence punishable under Section 201 of the Indian Penal Code and the offences punishable under the penal provisions of Prevention of Corruption Act, 1988 besides the other offences punishable under the Indian Penal Code when in the concluding page of the charge-sheet itself, it has categorically been mentioned and urged upon the Court by the C.B.I. to take cognizance for the all the said offences including the offence punishable under Section 201 of the Indian Penal Code and the penal provisions of Prevention of Corruption Act, 1988 against the 6 Cr. M.P. No.1014 of 2020 petitioner as well. It is further submitted that the prayer for quashing of the order taking cognizance made by the co-accused Dr. Satish Kumar Singh, the allegations against whom are similar to the instant petitioner, has already been dismissed by this Court vide judgment dated 17.04.2021 passed in Cr.M.P. No.1058 of 2020 and the same prayer of the co-accused Ashok Kumar Singh has also been dismissed by this Court vide judgment dated 09.12.2021 passed in Cr.M.P. No.2161 of 2020. It is then submitted that there is neither any illegality in the impugned order nor is there any justifiable reason to quash the entire criminal proceeding. Hence, it is submitted that this petition, being without any merit, be dismissed.
10. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is crystal clear that there is specific allegation against the petitioner that the petitioner, in criminal conspiracy with the co-accused public servant member and controller of examinations of the Jharkhand Public Service Commission, by fraudulent and dishonest means, ensured that the petitioner is declared qualified in the result published by the J.P.S.C. and appointed as Lecturer on the basis of the eligibility obtained by the said fraudulent means.
11. It is a settled principle of law that cognizance is in regard to the offence and not the offender. At the stage of taking cognizance, the court concerned is not required to consider the defence version or the materials or arguments in that respect nor is it required to evaluate the merits of the materials or evidence of the prosecution 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 pertinent to mention that taking cognizance 7 Cr. M.P. No.1014 of 2020 does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate, as the case may be, as such applies his mind to the suspected commission of an offence. Taking cognizance of an offence is not the same thing as issuance of process, as has been observed by the Hon'ble Supreme Court of India in the case of State of Karnataka & Another v. Pastor P. Raju, (2006) 6 SCC 728 paragraphs- 10 and 13 of which read as under:
"10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word "cognizance". The very first section in the said Chapter viz. Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is -- "judicial hearing of a matter".
The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P., (AIR 1951 SC 207) wherein it was held: (SCR p. 320) "... 'taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence."
13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out." (Emphasis supplied)
12. Considering the overwhelming materials in the record alleging that the co-accused public servants in criminal conspiracy with the petitioner and the co-accused persons, using their official position dishonestly and fraudulently manipulated the merit list, assessment charts to extend undue benefit to their preferred candidates including the petitioner and under the guidance of Jharkhand Public Service Commission, the petitioner was declared qualified even though he secured marks less than the candidates who even after securing more marks, could not qualify for the post of 8 Cr. M.P. No.1014 of 2020 lecturers and the recruitment test was conducted in complete violation of the Jharkhand Public Submits Service Commission Rules of Procedure, 2002 and that though the petitioner secured 100 marks on paper III of the Jharkhand Eligibility Test whereas the minimum mark was 105 but still in criminal conspiracy with the co-accused public servants, by committing cheating and forgery the petitioner managed to get him appointed as Lecturer in Hindi, this Court is of the considered view that there are ample materials in the record for the learned trial court to take cognizance of the offences punishable under Section 120B, 201, 420, 468, 471 of the Indian Penal Code and under Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 and that the uncontroverted allegations, as made, establish a prima facie case against the petitioner of having committed the said offences. Accordingly, this Court does not find any justifiable reason to quash the entire criminal proceeding against the petitioner either.
13. Accordingly, this criminal miscellaneous petition, being without any merit, is dismissed.
14. This Cr.M.P. is disposed of accordingly.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th March, 2022.
AFR/ Animesh 9