Jharkhand High Court
Shiv Shankar Choudhary @ Sheo Shanker ... vs The State Of Jharkhand Through C.B.I. ... on 2 April, 2019
Equivalent citations: AIRONLINE 2019 JHA 105
Author: B.B. Mangalmurti
Bench: B.B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.781 of 2016
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Shiv Shankar Choudhary @ Sheo Shanker Choudhary, son of Late Kameshwar Choudhary, Resident of Aam Bagan, New PWD Campus, P.O. & P.S. Jamtara, District Jamtara (Jharkhand) .... .... .... Petitioner Versus The State of Jharkhand through C.B.I. .... .... .... Opp. Party CORAM : HON'BLE MR. JUSTICE B.B. MANGALMURTI For the Petitioner : Mr. Krishna Murari, Advocate For the C.B.I. : Mr. Rajiv Nandan Prasad, Advocate
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20/02.04.2019 Heard learned counsel for the petitioner and learned counsel for the C.B.I.
2. Instant application was initially filed challenging the order dated 22.04.2016 passed by Additional Sessions Judge VIII-cum-Special Judge, C.B.I., Dhanbad in R.C. Case No.09A/2010(R) by which the prayer for discharge of the petitioner was rejected. During the pendency of this case, the court below subsequently by order dated 14.09.2016 framed charge against this petitioner under Section 120B read with Sections 420, 468 and 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and same was also challenged by filing I.A. No.6601 of 2016 and additional prayer was made for quashing subsequent order of framing charge.
3. Learned counsel for the petitioner submitted that at the relevant time, this petitioner was posted as Assistant Engineer in Road Construction Department, Jamtara and as per allegation he connived with the other accused persons and committed criminal misconduct as well as counter signed the forged bitumen invoices submitted by the contractor as genuine, although no procurement of bitumen was made through the oil company. This allegation is not supported with the provisions of the P.W.D. Code as Executive Engineer is required to take necessary steps in this regard. The Rule 38 and 39 of the P.W.D. Code requires the Executive Engineer to see the correctness of the 2 original records, receipts and correspondence as well as vouchers and he is also entrusted to carefully examine the books, returns and papers. This was not the business of this petitioner. He has been falsely implicated in this case by making allegation in the charge sheet that this petitioner has made endorsement that bitumen was genuine, procured from the Government Oil Company, although he has not made any such remarks, rather this petitioner has simply written "original bitumen challan serial no.1-17 submitted with the bills". Therefore, inference arrived at by the Investigating Officer is not correct. He also submitted that office of Executive Engineer issued the D.O. letter to the oil company for supply of bitumen to the contractor M/s Usha Consortium with direction that information for issuance of bitumen be also furnished to his office. This bitumen was to be utilized in the Government work. Learned counsel further submitted that it was the duty of Executive Engineer to verify the genuineness of the vouchers and the bitumen challans with the original vouchers issued by the oil company and the petitioner in no way was authorized to verify the genuineness and comparing of issuance of bitumen by the oil company. Lastly, he submitted that the Investigating Officer has found Executive Engineer liable for misconducts only and his matter was referred to the Department for initiating the regular departmental action with major penalty but made this petitioner and other as accused in this case. He relied on a decision in the case of Dhariwal Tobacco Products Limited & Others Versus State of Maharashtra & Another reported in (2009) 2 SCC 370. Paragraph 10 of the judgment is quoted hereinbelow:-
10. We may notice that in G. Sagar Suri v. State of U.P. this Court has held (SCC pp. 642-43, paras 7-8) "7. It was submitted by Mr. Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate and Ashok Chaturvedi v. Shitul H. Chanchani wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be 3 groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.
8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence.
Criminal Proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.
This Court therein noticed a large number of decisions to opine that whenever the High Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so.
Learned counsel submitted that the Magistrate trying the case has jurisdiction to discharge the accused at any stage of trial if he considers the charge to be groundless but that does not mean that accused cannot approach High Court under Section 482 of the Code of Criminal Procedure or Article 227 of the Constitution of India to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial. The case of petitioner is fit case in which the charge could be quashed as the main person who was In-charge of the whole affair, was given clean chit by referring his matter for departmental action. The court below has relied on the information mentioned in the charge sheet that this petitioner had presented invoices before the Executive Engineer and the certification of genuineness was given by the then Junior Engineer which was counter signed by this petitioner as the then Assistant Engineer for passing those bills for payment by the Executive Engineer.
4. Learned counsel appearing on behalf of C.B.I. opposed and submitted that the court below while rejecting the discharge application has taken care of the materials collected against this petitioner and passed its order that no bitumen was procured from the oil company and the invoices produced by the contractor were fake 4 and even the payments were made to the contractor without being verified its genuinity or without any enquiry regarding the completion of the work. The work order was issued on 02.03.2007 and the work was to be completed by 25.03.2007. So in such short period, the accused persons by making criminal conspiracy misused the official position and committed misconduct by counter signing forged invoices submitted by the contractor and the payment was made causing loss to the Department. Basing his argument on the proposition laid down by the Hon'ble Supreme Court in the matter of Asian Resurfacing of Road Agency Pvt. Ltd. & Another Versus Central Bureau of Investigation reported in 2018 (2) JLJR 320 SC submitted that only in case of patent illegality or want of jurisdiction, the High Court may exercise its jurisdiction. The order of framing charge may not require meticulous examination of voluminous material which may be in the nature of a mini trial. The court has only to see as to whether materials on record reasonably connects the accused with the crime. This petitioner at the relevant time was posted as Assistant Engineer and he had placed the vouchers to the Executive Engineer with the bill form. This amounts to involvement of this petitioner with other accused persons in facilitating the payment to the contractor without carrying out the work within a short span of time.
5. Considering the above submission of the parties and on perusal of the papers attached with this application as well as judgment cited above on behalf of petitioner as well as from the side of prosecution, it appears that this petitioner at the relevant time was posted and discharging the function of Assistant Engineer in Road Construction Department, Jamtara and the surface renewal work of road was executed which is subject matter of this case and the contract awarded to the contractor had submitted 17 invoices showing procurement of bitumen issued by Indian Oil Corporation, Haldia but during investigation it was found that the same was never supplied to this contractor. The court below after taking consideration of materials collected against this petitioner found prima facie charge against this 5 petitioner. Therefore, after discussing the case at length came to the finding that act of petitioner caused wrongful gain to the contractor and corresponding wrongful loss to the Government of Jharkhand and found sufficient material on record for framing charge against this petitioner. By filing I.A. No.6601 of 2016 additional prayer was made for quashing the order framing charge upon this petitioner as the court below had framed charge upon the petitioner on 14.09.2016. The Hon'ble Supreme Court in the case of Dhariwal Tobacco Products Limited (supra) has held that the High Court has to exercise the jurisdiction under Section 482 of the Code of Criminal Procedure to prevent abuse of process of any court for securing the ends of justice. In the instant matter, the prosecution side has relied upon the decision rendered in the case Asian Resurfacing of Road Agency Pvt. Ltd. (supra) that at the time of framing charge, the meticulous examination of voluminous materials is not required as the court has only to see whether material on record reasonably connects the accused with the crime. In this case, the court below has found sufficient prima facie material against this petitioner and even after framing of charge, the trial is also going on.
6. Therefore, in such circumstances, finding no occasion to interfere so instant application is dismissed.
7. Let a copy of this order be transmitted to the court concerned.
(B.B. Mangalmurti, J.) Anit