Patna High Court
Surendra Mohan Sahay vs The State Of Bihar Through Vigilance on 25 June, 2018
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.49939 of 2015
Arising Out of Vigilance Case No. -8 Year- 2004 District- PATNA
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Surendra Mohan Sahay Son of Late Justice Kamala Sahay Resident of 77A,
Patliputra Colony, P.S. - Patliputra, District & Town - Patna.
.... .... Petitioner
Versus
The State of Bihar through Vigilance
.... .... Opposite Party
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Appearance :
For the Petitioner/s : Mr. Ganjendra Pratap Singh, Advocate
For the State Mr. Jharkhandi Upadhyay, APP
For the Vigilance Mr. Ramakant Sharma,Sr. Advocate.
Mr. Rakesh Kumar Sharma, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
Date: 25-06-2018
The petitioner has filed this application to quash the
order dated 26.08.2011 passed by the learned Special Judge,
Vigilance-1 in Special Case No. 11 of 2004, arising out of Vigilance
P. S. Case No. 8 of 2004 whereby the court has taken cognizance
against the petitioner and others under Sections 465, 467, 468, 471,
474, 477A, 409, 418, 420, 218, 109 and 120B of the Indian Penal
Code and Sections 7 and 13(2) read with 13(1) (c) and (d) of the
Prevention of Corruption Act, 1988.
2. Vigilance P. S. Case No. 8 of 2004 was lodged on the
basis of written report of Mr. Arun Kumar Sinha, Deputy
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Superintendent of Police, Cabinet (Vigilance) Department,
Electricity Cell, Patna alleging inter alia as follows:-
(i) That the Bihar State Electricity Board (for short
'Board') invited tenders for purchase of 132 KV
isolators and 33 KV isolators. Initially it was decided
on 28.10.1995 to purchase 57 isolators at the price of
Rs.57 lacs, but after completing the formalities of the
tender, the Central Purchase Committee enhanced the
number of purchase of isolators to 90. The purchase
orders were issued on 18.02.1997 in favour of M/s
Hindustan Electrical & Switch Gear Corporation
(HESCO) and M/S Elite Light Engineering Company
(ELCO). Both the Companies were ordered to supply
45 isolators of 32 KV each. After manufacturing 15 set
of isolators, HESCO informed the BSEB for
inspection of the manufactured isolators. The
inspection was conducted by Sri Ram Kripal Singh,
the then Electrical Executive Engineer and Sri S.K
Prasad, the Assistant Executive Engineer. After their
inspection, the Chief Engineer (Transmission) directed
the HESCO to supply the isolators to Assistant
Electrical Engineer, Transmission Circle Store, Fatuha
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but the same was not supplied by HESCO. On the
other hand, ELCO upon manufacture of 15 sets of
isolators requested for inspection upon which the
inspection was conducted by Sri Ram Kripal Singh,
the then Electrical Executive Engineer, who found the
product to be in accordance with the technical standard
fixed by the Board. After the inspection, the Chief
Engineer (Transmission) directed ELCO to supply 03
sets to the Assistant Executive Engineer, Transmission
Circle Store, Deoghar and 12 sets to the Electrical
Executive Engineer, Transmission Central Store,
Namkum. ELCO made the supply accordingly and
received payment of Rs.87,041/- for supply to the
Deoghar store and Rs.5,48,166/- for supply to the
Namkum store. The rest 30 sets of isolators were also
manufactured by ELCO and upon inspection made by
Sri Vivekanand, the then Electrical Executive
Engineer, ELCO was directed to supply 15 sets to the
Fatuha store, 06 sets to Namkum store and 09 sets to
the Purnea store but ELCO did not supply these 30
isolators.
(ii) That initially on 28.10.1995, it was decided to
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purchase 50 isolators of 33 KV at a price of Rs.20 lacs
but later on, the Central Purchase Committee enhanced
the quantity to be purchased to 59. HESCO was given
supply order for supply of 29 sets isolators and ELCO
was given supply order for supply of 30 sets of
isolators. HESCO manufactured 29 sets of isolators,
which was inspected by Sri M.K. Sinha, the Electrical
Executive Engineer and Sri Bhim Prassad, Assistant
Executive Engineer and thereupon the Chief Engineer
(Transmission) directed HESCO to supply the 29
isolators of 33 KV to Fatuha store. HESCO supplied
these 29 isolators to the Fatuha store, which was
received by Sri Arun Kumar Srivastava, Assistant
Executive Engineer with a note that the isolators
supplied are defective and have been supplied with
delay. On the other hand, the ELCO also manufactured
30 sets of isolators, which were inspected by Sri Ram
Kripal Singh, Electrical Executive Engineer and upon
being found to be in accordance with the norms and
standard, the Chief Engineer (Transmission) directed
ELCO to supply 21 sets of 33 KV isolators to the
Central store at Muzaffarpur and 09 sets of 33 KV to
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the store at Deoghar. ELCO supplied 21 sets to
Muzaffarpur and received payment of Rs.4,49,018/-. It
also supplied 09 sets of isolators to Deoghar store and
received Rs.1,67,738/-.
(iii) That the informant also pointed out certain
issues with regard to publication of tender, purchase
process, supply of items and payments. The informant
pointed out that altogether 05 companies participated
in the tender process. Firstly, discrepancies were found
in the technical and commercial part of the bid in the
context of specifications of the Board with the regard
to all the five bidders. On the request of all the bidders,
discrepancies were removed and thereupon, the
financial bid was opened and the rate quoted by
HESCO and ELCO was found to be the lowest and it
was decided to distribute work order equally between
the two Companies. It was found to be surprising for
the informant. When HESCO supplied 29 sets of 33
KV isolators to the Fatuha store, it was not initially
received by the Assistant Executive Engineer, Sri A.K.
Srivastava rather he requested from the Chief Engineer
(Transmission) to provide the attested copy of drawing
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and test certificate so that the quality and specification
of the isolators supplied may be inspected. After
repeated reminders, when the said documents were not
provided it was received with objections and
deficiencies in the Store on 10.03.1998. He also
recorded that the amount may be deducted from the
bill of HESCO for deficiency in the supplied isolators.
The informant alleged that Sri Srivastava was in
complicity with HESCO in receiving supply of the
isolators. The informant has also alleged that in the
work order No. 10/97, it has been specified that nuts
and bolts of stainless steel is to be used in the isolators
but in the isolators supplied by HESCO, the nuts and
bolts of mild steel were used. Later on, the Chief
Engineer (Transmission) modified the work order and
stainless steel was replaced with the words 'mild
steel'. The Chief Engineer got obtained supporting
noting form other Engineers to the effect that stainless
steel was inadvertently used in place of mild steel.
This was done despite the fact that it was held that the
work order is the supreme and no change can be made
in the light of the drawing.
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(iv) That the enquiry on the matter of supply of
defective isolators was given to Sri S.P. Seth, the then
Member (Finance), BSEB, who submitted his report
on 17.04.1998. Even after start of the enquiry, the
Chief Engineer (Transmission) vide his letter dated
22.05.1998issued supply orders in favour of ELCO with an intention to provide immediate and wrong benefit. During the enquiry, one 33 KV isolators supplied by ELCO was examined and several deficiencies in its quality were detected. From the enquiry report, it appears that large scale illegality was committed in supply of isolators and the isolators have not been supplied with the quality and specification. Certain officials of the Board, who were instrumental in getting the supply order issued in favour of the suppliers, have been proceeded against. M/s ELCO and M/S HESCO were blacklisted vide order dated 29.01.1999 and it was directed by the Chief Engineer (Transmission) to return back the unused isolators.
(v) That the officers and employees of the Board in complicity with the suppliers hatched criminal conspiracy to obtain wrongful gain and misused their Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 8/15 official position to cheat the Board.
3. On completion of investigation, the Investigating Officer found the allegations made in the first information report (for short 'FIR') to be true and thus submitted Charge-Sheet No. 62 of 2011 dated 23.08.2011 in the court of Special Judge, Vigilance-1, Patna.
4. On perusal of the FIR, the materials collected in course of investigation and the police report submitted under Section 173 of the Code of Criminal Procedure, the learned Special Judge-1, Patna found a prima facie case to be made out against the petitioner and others and, thus, took cognizance of the offences mentioned above and summoned the accused persons vide impugned order dated 26.08.2011.
5. Assailing the impugned order, Mr. Gajendra Pratap Singh, learned advocate for the petitioner submitted that the allegations made in the FIR against the petitioner do not warrant any criminal prosecution as the isolators were supplied under a circular issued by the Board itself. Paragraphs 14 and 15 of the letter issued by the Board deals with suppliers guarantee. Paragraph 14 is specific on the point that all equipments/materials to be supplied against this order will be guaranteed against bad workmanship, defective materials and unsatisfactory service for a period of one year from the Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 9/15 date of commissioning or 18 months from the date of receipt by the consignee and if the materials are found defective during this period, the same shall be replaced or rectified by the suppliers free of cost whatsoever. Paragraph 15 further stipulates that the supplier is required to furnish performance guarantee immediately after the supply of the goods. The officials of the Board never invoked the warranty clause against the petitioner meaning thereby that the petitioner was never intimated that the isolators supplied by him are defective and some rectifications are required.
6. He has further submitted that in stead of invoking the performance warranty, without issuing any show-cause notice, the company of the petitioner was blacklisted vide order no. 8ED dated 29.01.1999. The petitioner challenged the order passed by the Board before this Court by filing a writ petition vide CWJC No. 2598 of 1999. In the said case, this court not only set aside the order of blacklisting rather directed the Board to make payment of second installment of 15 sets of isolators of 132 KV to the petitioner's company within a period of two months from the date of the order. This Court also directed the Board to accept the further 15 sets of isolators of 132 KV and the Board was directed to issue necessary orders within one month from the date of order and the payment shall be made within a period of two months from the date of supply. This Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 10/ 15 Court also directed the Board to pay a cost of Rs.10,000/- to the petitioner's company and apart from that the Board was directed to pay a cost of Rs.10,000/- with Patna High Court Legal Aid Society. The Board challenged the order passed by the learned Single Judge by filing an intra court appeal vide LPA No. 313 of 2000. The intra court appeal was disposed of with an observation that the Board can constitute a committee of technical persons to inspect the goods supplied by the petitioner's company after issuing notice of the date of inspection. If the committee feels that the goods are defective, the same can be returned back to the petitioner's company without any value of the goods.
7. He also submitted that the Board did not undertake any exercise as observed by the Division Bench and on the other hand, it proceeded with the criminal proceeding with an intention to twist the arms of the petitioner. He submitted that the Board is acting with mala fide intention, which would be apparent from the fact that this Court in letters patent appeal filed by the Board directed for constituting a committee of experts to examine the isolators supplied by the petitioner in presence of the representative of the petitioner, but no such exercise was undertaken by the authorities of the Board. He submitted that the FIR itself is based on conjectures and surmises inasmuch as there is no specific allegation against anybody rather a Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 11/ 15 general and sweeping allegation has been made against the petitioner and the officials of the Board that they came in complicity and criminal conspiracy to cheat the Board by supplying defective isolator. According to him, the prosecution is based upon a civil liability. Even if it is presumed for the sake of argument that the petitioner supplied defective isolators, even then, the remedy before the Board was not of lodging a criminal case rather to ask the petitioner to remove the defects in the isolator supplied by him. The Board, however, neither asked the petitioner to remove the defects in the isolators nor it ever returned back the isolators supplied by the petitioner.
8. Per contra, Mr. Ramakant Sharma, learned Senior Advocate appearing for the Vigilance submitted that the petitioner is trying to mix the two separate actions, i.e. civil and criminal case taken against the petitioner and his company. He submitted that this Court interfered with the order of blacklisting of the company on the ground of violation of principle of natural justice as no opportunity of hearing was granted to the company of the petitioner prior to passing the order of blacklisting and debarment. However, the allegations made in the FIR are sufficient to show that the petitioner and others entered into a criminal conspiracy with the officials of the Board in order to cause financial loss to the Board and corresponding Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 12/ 15 gains for themselves. He submitted that a preliminary inquiry was conducted by the vigilance prior to the institution of the FIR and since the ingredients of criminal offence were clearly attracted, it was decided after the preliminary inquiry to institute FIR and investigate the same. According to him, the vigilance case is an independent action, separate from commercial dispute between the Board and the company of the petitioner. The vigilance inquiry had no connection with the action taken by the Board against the petitioner's company bearing civil consequences due to supply of defective and substandard items contrary to terms of contract/tender. The inquiry was carried out to find out and fix the criminal liability on the officials who did not place recommendation of lodging the FIR before the Director General (Vigilance) for his approval rather the erring officials chose to proceed against the officials departmentally and further just blacklisting and debarment of the suppliers that too without following the proper procedure to save the accused from criminal prosecution and concrete action.
9. He has further submitted that the inquiry and investigation clearly disclosed involvement of the petitioner and others in the alleged offence causing pecuniary loss to the Board and the corresponding gains to the petitioner and others. He also submitted that the petitioner does not deserve any relief from the Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 13/ 15 court for the simple reason that though FIR was instituted on 28.07.2004 and charge-sheet in the case was submitted long back in 2011 whereafter impugned order taking cognizance of the offence was passed on 26.08.2011 and the petitioner was summoned for trial, the instant application under Section 482 of the Code of Criminal Procedure has been filed on 16.10.2015 and till date the petitioner has not appeared before the court below.
10. In reply, Mr. G. P. Singh, learned advocate for the petitioner submitted that the petitioner is a senior citizen and is maintaining very poor health. His non-appearance before the court is not deliberate rather the same is because of his critical health condition.
11. I have heard learned counsel for the parties and carefully perused the record.
12. It is true that in a writ petition filed by the company of the petitioner, this Court set aside the order of blacklisting and directed the Board to make payment of second installment of 15 sets of isolators of 132 KV to the petitioner's company. The Court also directed the Board to accept the further 15 sets of isolators of 132 KV and the Board was directed to issue necessary orders within one month from the date of order and the payment was directed to be made within two months from the date of supply, but in the writ Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 14/ 15 petition order had been passed taking into consideration various factors including the factor that principle of natural justice was not followed by the Board while passing the order of debarment or blacklisting of the company of the petitioner. However, the Court while exercising the writ jurisdiction had no opportunity to take into consideration the allegation that the officers of the Board in complicity with the supplier hatched up criminal conspiracy by misusing their official position and in furtherance thereof they acted in a manner which caused financial loss to the Board and corresponding gain to them. The learned Special Judge had occasion to see the materials collected during investigation while passing the impugned order and he was satisfied that those materials constituted a prima facie case against the petitioner and others and, thus, took cognizance of the offences under which charge-sheet was submitted. It has not been controvered by the petitioner that after the FIR was instituted in the year 2004 the petitioner has neither obtained bail nor appeared before the court pursuant to the issuance of summons. The plea of ailment of the petitioner can be a ground for grant of bail but on that account the criminal prosecution cannot be quashed.
13. It is well settled position in law that the power of quashing of criminal proceeding has to be exercised very sparingly with circumspection and that too in the rare of rarest cases and the Patna High Court Cr.M isc. No.49939 of 2015 dt.25-06-2018 15/ 15 court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR unless the allegation are patently absurd and inherently improper. Further, the allegations of mala fide are of no consequence and cannot be the basis for quashing of criminal proceedings.
14. Keeping in mind the facts and circumstances of the case and arguments advanced on behalf of the parties, in the opinion of this Court, it would not be proper to quash the order impugned at this stage.
15. Accordingly, the application is dismissed.
16. However, the petitioner would be at liberty to raise all the points before the Court below at the stage of framing of charge.
(Ashwani Kumar Singh, J.) Kanchan/-
AFR/NAFR NAFR CAV DATE 21.06.2018 Uploading Date 26.06.2018 Transmission 26.06.2018 Date