Jharkhand High Court
Maheshwar Prasad Mishra vs State Of Jharkhand Through Vigilance on 10 June, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 470 of 2019
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Maheshwar Prasad Mishra .... .... Petitioner(s).
Versus
State of Jharkhand through Vigilance, Ranchi ........ Opp. Party(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Petitioner(S) : Mr. Rahul Kumar, Advocate
For the ACB : Ms. Niki Sinha, Advocate
15/10.06.2022
Heard the counsel for the parties.
2. Petitioner initially challenges the order dated 26.3.2019 passed by the Special Judge, ACB, Ranchi in Vigilance (Spl.) Case No. 25(A)/2009 by which his discharge application was dismissed. Thereafter charge was framed. The order framing charge dated 5.7.2019 has also been challenged.
3. Counsel for the petitioner submits that from bare perusal of the FIR, charge-sheet and also from the case diary, there are no materials to attract Section 406, 420, 408, 409, 120B IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988, so far as this petitioner is concerned, thus petitioner ought to have been discharged. As per him, at best the case would have been for negligence in performing official duty. A departmental proceeding was also initiated against the petitioner and the same was dropped which suggest that there are no materials against the petitioner to proceed against. He submits that admittedly the petitioner was Vice-Chairman of Ranchi Regional Development Authority and was responsible for sanctioning building plans. The petitioner sanctioned the building plan but according to the prosecution case the same was not according to the Rule, laws and by-laws of the Ranchi Regional Development Authority (hereinafter called as RRDA). It is his contention that even if petitioner has sanctioned the building plan which is not in accordance with the rules, laws and by-laws, that by itself cannot draw a presumption that the petitioner has passed the said plan for obtaining illegal gratification which would attract penal provisions of law. He lastly submits that how the section 406, 420, 408, 409, 120B IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 are attracted has not be dealt with by the Special Judge, ACB, Ranchi in his order while dismissing the application for discharge.
-2-4. Counsel appearing on behalf of ACB submitted that since the petitioner was admittedly a Vice Chairman of RRDA and was responsible for sanctioning building plan and as the building plan was not in accordance with the by-laws and there was a deviation, he is responsible for the same. She submits that thus it can be presumed that he has sanctioned the plan by giving undue advantage to the builder and has obtained illegal benefits for the said act.
5. An FIR was lodged being Vigilance P.S. Case No. 20 of 2009 registered under section 406, 420, 408, 409, 120B IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 against several accused including this petitioner. At that relevant point of time, this petitioner was the Vice-Chairman of RRDA. There is an allegation that in respect of sanctioning some building plan, the building by-laws were not adhere to and the plans were sanctioned when there were deviations, which were not permissible. The police investigated the case and thereafter filed charge-sheet being Charge Sheet no.2 of 2018 wherein amongst others name of this petitioner also includes for allegedly committing an offence punishable under Section 406, 420, 408, 409, 120B IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The petitioner thereafter filed a discharge application which was dismissed by the impugned order.
6. I have gone through the impugned order. The FIR alleges that a building plan was sanctioned ignoring the provisions of the building by-laws. Sanctioning of building plan, ignoring the building by-laws itself cannot attract penal provision of the Indian Penal Code or provision under Prevention of Corruption Act. There has to be some material collected during investigation by way of evidences and overt-acts, which should attract the provision of the Indian Penal Code and Prevention of Corruption Act. Be it noted that Special Judge, ACB, Ranchi did not find any material to frame charge under Section 420 of the Indian Penal Code but held that there are materials to frame charge under Sections 406, 420, 408, 409, 120B IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The impugned order suggests that the material on whose basis the Special Judge, ACB, Ranchi arrived at the aforesaid conclusion is that No Objection Certificate from the concerned Authority was not obtained since height of the building was 38.25 meters, mutation certificates were not available and the petitioner after taking affidavit on oath only have sanctioned the building plan.
-3-These allegations itself do not attract any provision under Indian Penal Code and provision of Prevention of Corruption Act, 1988. Sections 406 and 408, 409 deals with punishment for criminal breach of trust. Criminal breach of trust is defined in Section 405 of IPC which is quoted herein below:-
"405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharge, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
7. On query learned counsel appearing on behalf of the State-Vigilance submitted that there is nothing in the case diary to suggest that as to what was the property entrusted with the petitioner which was dishonestly misappropriated by the petitioner or was converted for his own use. She further submits that there is nothing in the case diary to suggest that he dishonestly disposed the property in violation of any direction of law. There is nothing in the impugned order to suggest as to what was the material to frame charge under the aforesaid sections.
8. Further Section 13(2) of the Prevention of Corruption Act provides for punishment to a public servant who commits criminal misconduct. Admittedly the petitioner is public servant. In the entire impugned order that there is no material to suggest that as to what are the factual background or the act done by the petitioner which would attract the aforesaid provision and what are the acts which can be said to be a "criminal misconduct". Further what are overt-acts which would attract Section 13 (1) of the Prevention of Corruption Act, is not dealt with by the Court in the impugned order.
9. While dealing with the discharge application the court has to apply his mind and arrive at a conclusion as to whether the facts and allegations and the overt-acts of a person which has been collected during investigation attracts any of the proposed offences under which the charge is to be framed. The Court should match the ingredients of the penal Section with the acts of the accused and the materials collected during investigation.
-4-In this case, I find that Special Judge, ACB, Ranchi has failed to match the sections of IPC and the Prevention of Corruptions Act with the materials which is available in the case diary, so far as this petitioner is concerned. Special Judge has mechanically held that there are materials to frame charge under section 406, 420, 408, 409, 120B IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 but materials which has been referred to by the Special Judge in the impugned order, will not attract the aforesaid offences for which the Special Judge was of the opinion that charge has to be framed.
10. Thus, the impugned order dated 26.3.2019 passed by the Special Judge, ACB, Ranchi in Vigilance (Spl.) Case No. 25(A)/2009 is set aside and the matter is remanded to the Special Judge, ACB, Ranchi for passing a fresh order on the discharge application taking into consideration as to whether the allegation against petitioner which surfaced during investigation at all attracts any of the provision of the Indian Penal Code and Prevention of Corruption Act or not.
11. Accordingly, this application stands allowed with the aforesaid direction.
(ANANDA SEN , J) anjali/cp2