Patna High Court
Santosh Kumar @ Santosh Kumar Jha vs State Of Bihar on 29 June, 2012
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.37502 of 2006
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Santosh Kumar @ Santosh Kumar Jha, S/o Sri Bhagwan Lal Jha, resident of
Village Sangi, P.S. Phulparas, Dist. Madhubani, At present residing at 9, Saketpuri,
P.S. Patrakarnagar, Patna.
.... .... Petitioner
Versus
1. State of Bihar.
2. The District Magistrate, Nalanda, Biharsharif.
.... .... Opposite Parties
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Appearance :
For the Petitioner : Mr. Ajit Kumar, Adv.
For the State : Mr. Jharkhandi Upadhyay, APP
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 29-06-2012 Heard Mr. Ajit Kumar, learned counsel for the petitioner and Mr. Jharkhandi Upadhyay for the State.
This application has been filed for quashing of the order taking cognizance for offence under Section 420 of the Indian Penal Code dated 25.8.2006 passed by the Chief Judicial Magistrate, Nalanda in Bihar P.S. Case No. 01 of 2003 (G.R. No. 07 of 2003).
Mr. Ajit Kumar, learned counsel for the petitioner, has submitted that even if the averments made in the entire First Information Report is accepted to be entirely true, no offence yet can be said to have been committed by the petitioner so as to make him liable for prosecution for offence under Section 420 of the I.P.C. or any other offences punishable under any law. In this regard, he has explained that the petitioner in capacity of proprietor of M/s Punam Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 2 Printing Works, Patna had been favoured with a supply order of 3,81,121 pieces of Abhyas Pustika (Exercise Book) and after execution of agreement, supply of 2,91,719 pieces of exercise book had already been made and while remaining supply was yet to be made, a First Information Report was instituted at the instance of the District Magistrate, Nalanda, the opposite party no.2 without taking into consideration that the only remedy for the alleged breach of agreement for short supply of exercise books was either taking action contemplated in the agreement itself or institution of a civil suit claiming damages. In this regard, he has also explained that the delay in supply of exercise book could not be attributed to the firm of the petitioner, inasmuch as, even when the process of tender of supply of exercise book was initiated in October, 2001 and was completed by selecting the petitioner as the lowest bidder in December, 2001, the actual decision for execution of agreement and consequential supply order were issued only on 24.10.2002, just at the nick of the moment when the literacy mission was to commence in Nalanda district with effect from 30.10.2002. He has thus submitted that the First Information Report was lodged only with a vengeance for making the petitioner an escape goat for the failure on the part of the district administration in completing the project of literacy mission. He has also placed reliance on the judgment of the Apex Court in the case of Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 3 Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr. reported in 2007(7)SCC 373, in the case of All Cargo Movers (India) Private Limited & Ors. Vs. Dhanesh Badarmal Jain & Anr. reported in 2007(14)SCC 776 and Sharon Michael & Ors. Vs. State of Tamil Nadu & Anr. reported in 2009(3)SCC 375.
Mr. Jharkhandi Upadhyaya, learned APP appearing on behalf of the State and the District Magistrate, Nalanda on the other hand having filed a counter affidavit, has submitted that the petitioner had promised to supply 3,81,121 pieces of exercise book (Abhyas Pustika) by an agreement in writing dated 24.10.2002 and when he did not complete the supply within the prescribed period of fifteen days and also became traceless, inasmuch as, the letters sent by way of reminder for supply had returned unserved, the ingredients of cheating as defined under Section 415 of the I.P.C. were fulfilled and as such, the petitioner's short supply of 89,402 pieces of exercise book being punishable for offence under Section 420 of the I.P.C. when the said allegation was found to have been substantiated in course of investigation by the police, which had filed a charge-sheet against the petitioner, no error can be said to have been committed by the court below in taking cognizance and issuing summons to him to face trial. He has also submitted that the petitioner has a chequred past and he is also facing another criminal prosecution for sub- Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 4 standard supply of materials.
As with regard to the ingredient of the offence under Section 415 of the I.P.C., he has submitted that since the Magistrate on perusal of the case diary and specially its paragraph nos. 3, 7, 9, 11, 12, 13, 65, 76 and 86 was satisfied as with regard to committing offence by the petitioner under Section 420 of the I.P.C., such satisfaction of the Magistrate could not be questioned much less interfered by this Court in exercise of its power under Section 482 of the Cr.P.C. In this regard, he has also placed reliance on the judgment of the Apex Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose alias Chabi Bose & Anr. reported in AIR 1963 SC 1430, in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors. reported in 1976 SC 1947, in the case of Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha reported in 1983 PLJR 34 SC, in the case of ANZ Grindlays Bank Ltd. Vs. Union of India & Ors. reported in 2006 SC AIR 296, in the case of Kishan Lal Vs. Dharmendra Bafna & Anr. reported in 2009(7)SCC 685, in the case of Munilal Thakur & 3 Ors. Vs. Vs. The State of Bihar & Anr. reported in 1984 PLJR 774 and a judgment of this Court in the case of Naresh Singh & Ors. Vs. The State of Bihar reported in 1988PLJR 216.
Mr. Upadhyay has alternatively submitted that even if it be held that the offence under Section 420 IPC cannot be made out, Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 5 the petitioner still will be liable for prosecution under Section 4 of the Bihar Prevention of Specified Corrupt Practices Act, 1983 (hereinafter referred to as 'the 1983 Act') under which a Contractor is liable for being punished for violation of terms of contract.
Mr. Ajit Kumar, learned counsel for the petitioner, in reply has submitted that first of all none of the paragraphs of the case diary referred to by the learned counsel for the State, in anyway contains an iota of allegation against the petitioner so as to constitute an offence of cheating under Section 420 of the I.P.C. He has further submitted that even the provision of 1983 Act will not be attracted to the facts of the present case, inasmuch as, the petitioner cannot be held to be a contractor in relation to a work as defined under Section 3(b) of the Act nor the supply of exercise book by the petitioner to the literacy mission can be held to be a 'work' as referred under the 1983 Act. In this regard, Mr. Kumar has also submitted that the First Information Report against the petitioner having been filed by Secretary of District Literacy Committee, Nalanda cannot be held to be by an officer of the State Government as required under Section 39 of the 1983 Act. Reliance in this regard has been placed by him on the judgment of this Court in the case of Shyam Chandra Sharma Vs. Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna, through its Chairman & Ors. reported in 2011(3)PLJR 1.
Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 6 In the considered opinion of this court, the contents of First Information Report even if it is read together with the statement in the case diary in the paragraphs referred to by the learned counsel for the State, it would not make out the offence under Section 420 of the I.P.C. or in fact any other offence under the penal code. It has to be noted that the only specific assertion against the petitioner in the First Information Report is that he had made a short supply of 89,402 pieces of exercise books by supplying only 2,91,719 out of total of 3,81,121 pieces of exercise books. Such relevant portion of the First Information Report reads as follows:-
"lk{kjrk dsUnz fnukad 30 vDVwcj 02 ls izkjaHk gks x;k gS] ij buds }kjk vkt rd 89]402 vH;kl iqfLrdk dh vkiwfrZ ugha dh x;hA blds fy, bUgsa bl dk;kZy; ds i=kad 273 fnukad 06-11-02 i=kad 295 fnukad 20-11-02 ,oa i=kad 328 fnukad 11-12-02 ds }kjk Li"Vhdj.k ,oa Lekfjr fd;k x;k] fdUrq bldk bUgksua s iw.kZr;k vuns[kh dhaA foyEc ls rFkk de la[;k esa vkiwfrZ djus ds dkj.k dsUnz lapkyu ckf/kr gqvk rFkk vHkh Hkh 89]402 fuj{kj] vH;kl iqfLrdk ls ckf/kr gSA buds }kjk O;kikj LFky dk irk 503 txr lsUVj V~sM Qzstj jksM] iVuk 800001 crk;k x;k gSA i=kpkj djus ij ogka ugh arks Lo;a u rks buds dksbZ deZpkjh ds jgus ds dkj.k i= ykSV vkrk gSA bl izdkj buds }kjk O;kikj LFky dh lgh tkudkjh Hkh ftyk lk{kjrk lfefr dk;kZy; dks ugha nh x;h gSA bUgksua s nks efguk ls vf/kd ftyk iz'kklu dks va/kdkj esa j[kk] ljdkjh vkns'k dh vogsyuk dh] ,djkjukek dks Hkax fd;k rFkk lk{kjrk :ih jk"V~h; ioZ dks ckf/kr djus dk iz;kl fd;kA"
A question would thus arise as to whether short supply of exercise book by the petitioner or ignoring reminders sent by the Secretary, District Literacy Committee by itself can be said to be an offence of cheating specially when the agreement entered into Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 7 between the Secretary District Literacy Committee with the petitioner dated 24.10.2002 reading as follows;
",djkjukek"
eSa esllZ larks"k dqekj] iwue fizfUVax oDlZ] Qzt s j jksM] iVuk] lfpo ftyk lk{kjrk lfefr] ukyUnk ds lkFk foKkiu dh 'kRrksaZ ds v/khu laiw.kZ lk{kjrk vfHk;ku ds fy;s vko';d lkefxz;ksa ftudk O;ksjk fuEukafdr gS%& ¼1½ vH;kl iqfLrdk vkdkj ¼6-5^^ X 5**½ 48 i`"Bksa esa iw.kZ la{;k esa vkiwfrZ gsrq ,djkjukek djrk gwW fd %& ¼1½ vkiwfr vkns'k esa fn;s x;s le; lhek 15 ¼iUnzg½ fnuksa ds vUrxZr fu/kkZfjr iz[k.M eq[;ky;ska esa fu/kkZfjr la[;k esa vkiwfrZ lqfuf'pr djus ds iwoZ ftyk lk{kjrk dk;kZy;] ukyUnk ds dks"kk/;{k ls lEidZ d:axk ,oa xfBr lfefr nokjk xq.koRrk dh tkWp djkmWaxkA ¼2½ lkefxz ds vkiwfrZ ds mijkUr ftyk inkf/kdkjh lg v/;{k] ftyk lk{kjrk lfefr] ukyUnk nokjk xfBr lfefr nokjk lkexzh dh xq.koRrk dh tkWp gksus ds mijkUr Hkqxrku gsrq nkok is'k d:axkA ¼3½ xq.koRrk tkWp esa uewuk ds vuq:i lkexzh ugha ik;s tkus ij ftyk lk{kjrk lfefr dh lkexzh ykSVkus vFkok vuqikfrd dVkSrh djus dk vf/kdkj lqjf{kr jgsxkA ¼4½ lHkh izdkj ds djksa dh dVkSrh Hkqxrku Jksr ij gh djus esa eq>s vkifRr ugh gksxh ¼5½ xq.oRrk tkWp gksus ds mijkUr ,d lIrkg ds vUnj vkiwfrZ fd;s x;s lecfU/kr iz[kUM ls Hkqxrku lqfuf'pr djk;k tk;sxkA ¼6½ lkexzh viwfrZ esa foyEc gksus ij vkiwfrZ vkns'k jn~n fd;k tk ldrk gS vkSj teku dh jkf'k tIr djrs gq, mlh nj ij vkiwfrZ gsrq rS;kj nwljs fufonknkrk dks vkiwfrZ vkns'k nsus esa eq>s dksbZ vkifRr ugha gksxhA Lfpo] g0@& g0@& 24&10&02 ftyk lk{kjrk lfefr] ukyUnk vkiwfrdrkZ izfr"Bku dk gLrk{kj xokgksa dk gLrk{kj 1- g0@& 2- g0@& 3-"
(underlining for emphasis) by itself provided the remedy of forfeiting the security amount as Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 8 also cancellation of the supply order followed by giving order for such supply to any other tenderer. Thus, in terms of the agreement, the petitioner was not liable for being criminally prosecuted specially when Clause-6 of the agreement underlined above would in no uncertain terms go to show that for breach of contract, the remedy was to cancel the supply order, forfeit the security amount and award the contract/tender to other tenderer. This having been not done, the recourse taken to filing of the criminal case in fact would amount to blatant abuse of exercise of executive power by the concerned District Magistrate, Nalanda who probably had nurtured an opinion that he is the Lord of all, he surveys. The District Magistrate of a district has to also act well within the parameters of law and cannot dictate the criminal prosecution at the drop of the hat. Such an intimidating attempt on the part of the District Magistrate, Nalanda far from creating a cardial atmosphere would actually cause hinderance and obstruction in the development of the projects undertaken in the district.
It has to be kept in mind that even as per the terms of agreement, not a single paise by way of advance was given to the petitioner for supply of 3,81,121 pieces of exercise books. In fact it was only after completing the supply that the petitioner could have got the payment as has been explained in the letter of the Secretary of Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 9 the District Literacy Mission dated 17.3.2003 brought on record by the petitioner in the reply to the counter affidavit wherein it has been admitted that for supply of 2,91,719 exercise books by the petitioner, no payment at all had been made even till March, 2003.
It is in this background that one has to take into account the ingredient of Section 415 IPC which defines cheating to mean "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, any which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "chear".
From reading of the aforementioned definition of cheating under Section 415 I.P.C., it becomes absolutely clear that in order to hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the inception i.e. at the time of making promise with an intention to retain property. This aspect of the matter infact stands well explained by the Apex Court in the case of Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. reported in 2000(4)SCC 168.
Judged in the aforementioned background, when the allegation made in the First Information Report is taken into consideration, it will be difficult for this Court to hold that the Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 10 petitioner while agreeing to supply 3,81,121 exercise books without receiving any payment from the society and/or the District Magistrate, Nalanda being the Chairman of the District Literacy Society had played any fraud or had any dishonest intention in not supplying the balance of 89,402 exercise books. The 'property' being of exercise book to be supplied by the petitioner and his firm, in absence of any payment made by the District Administration and/or the Society, was not of the State or its Agency and, therefore, even if the petitioner had refused to make supply of remaining exercise books, he could not have been held guilty for committing offence under Section 420 of the I.P.C. It is not the case of the prosecution in the First Information Report nor any material has been collected in course of investigation that the petitioner had already received advance against the supply to be made by him and that he had pocketed such amount by not fulfilling the promise of supplying the exercise books. It is also not a case of the enforcement of contract in the First Information Report and in fact no material has been gathered by the police even in course of investigation to show that when the petitioner had supplied 2,91,719 exercise books out of the supply order of 3,81,121, such exercise books were found to be bad in quality or quantity so as to make him liable for duping the authorities.
This Court, in fact, has carefully gone into the Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 11 paragraphs of the case diary referred to and relied by the learned counsel for the State and from them, not a word of improvement can be found beyond the aforesaid allegation made in the First Information Report. In fact, when in the agreement there is disclosed address in the name of firm of the petitioner and still the petitioner in person has been blamed for the return of the letter sent to him on an incorrect address, it becomes absolutely clear that the district administration was somehow adamant in launching a false prosecution for only demoralizing the petitioner. This Court, however, must clarify that the District Magistrate, being Chairman of the District Literacy Society or the Secretary of the District Literacy Society could have in their own rights forfeited the amount of security and cancelled the contract of the petitioner and in fact also could have claimed damages for adversely affecting the progress of literacy program but in no event, they could have launched a criminal prosecution against the petitioner.
The Apex Court in the case of Sharon Michael (supra) has clearly held that in absence of any allegation of criminal misconduct before formation of the contract, a person cannot be held to be guilty for offence under Section 420 of the Indian Penal Code. In fact, for such contractual obligation, the Apex Court has held it to be a purely civil liability as would be apparent from the following Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 12 passage:-
"18. The liability of the Company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The first information report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As admittedly Respondent 2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature."
The same view has been taken by the Apex Court in its earlier cases in the case of Vir Prakash Sharma (supra) and in the case of Anil Mahajan Vs. Bhor Industries Ltd. & Anr. reported in 2005(10) SCC 228, wherein it had been held as follows:-
"8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay."
Yet again, the apex court in the case of Hira Lal Hari Lal Bhagwati Vs. CBI, New Delhi reported in 2003(5)SCC 257, the Apex Court had held as follows:-
Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 13
"40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise. We have read the charge-sheet as whole. There is no allegation in the first information report or the charge-sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what were the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens rea of evasion of customs duty or cheating the Government of India as the Cancer Society is a non-profit organization and, therefore, the allegations against the appellants leveled by the prosecution are unsustainable.--
----"
The reliance placed by the learned counsel for the State Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 14 on the judgment of the Apex Court in the case of Chandra Deo Singh (supra) is wholly misplaced, inasmuch as, that case deals with the procedure to be followed in a complaint case under Section 202 and 203 of the Cr.P.C. The present case is a police case and thus will not be guided by the procedure of complaint case. Reference to the judgment of Smt. Nagawwa (supra) in fact far from supporting the learned counsel for the State would go against him, inasmuch as, the following four principles as laid down by the Apex Court, for quashing the order of the Magistrate issuing process against the accused, would also directly cover the case of the petitioner:-
"5. Mr. Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 15 of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit ofan inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) where the allegations made in complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
Reliance placed by of Mr. Upadhyaya, learned counsel for the State on the order of the Supreme Court in the case of Gopal Vijay Verma (supra), seems to be equally misplaced, inasmuch as, in this case, the Magistrate had never refused to take cognizance on an Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 16 earlier occasion nor the impugned order of cognizance has been passed on a second complaint. Yet again, his reliance on the judgment of Kishan Lal (supra) is also wholly uncalled, inasmuch as, that case deals only with the scope of further investigation in terms of Section 173(8) of the Cr.P.C. The further reliance placed by him on a Division Bench judgment of this Court in the case of Munilal Thakur (supra), will also have no bearing on the present case, inasmuch as, the Division Bench in that case had only considered the aspect that the Magistrate even after accepting the final report of the police can take cognizance of an offence upon a complaint or objection on the same or similar allegation of fact. Here there is no complaint case nor a final form has been submitted in the police case and, therefore, the ratio of the aforesaid judgment cannot be made applicable.
This Court, however, must take into account an interesting ancillary and/or alternative argument of the learned counsel for the State as with regard to the petitioner still being liable for prosecution under the 1983 Act. The 1983 Act while prohibiting the specified corrupt practices and providing punishment for prevention of such specific corrupt practices has very carefully defined the expression "contractor in relation to the work" in the following terms:-
"3. (b) "Contractor in relation to a work" means a person who undertakes to execute the work under a works department in Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 17 pursuance of a contract and includes where the context so requires, a sub-contractor, Mukhiya, Gram Panchayat, Co- operative and all other agencies and persons employed by him or working under him or under his control for execution of such work; and the expression "works contract" shall be construed accordingly;
In fact, the expression "work" also has been separately defined under Section 3(f) which reads as follows:-
"3(f) "Work" means any work relating to survey, construction, repairs or maintenance of any building, super-structure, dam, weir, canal, reservoir, tank, take, road, bridge, culvert, well including tubewells, factory workshop, water supply system, electric installation system or any other work which the State Government may, by notification, specify in this behalf and includes surveying, planning, drawing, designing, purchase, supply or storage of goods, mechanically propelled or electrically operated vehicles of all descriptions, plants, machinery, tools, spares or all other materials and equipments relating to the construction, maintenance or repairs of any to the aforesaid works;"
It is in the light of the aforementioned definition that the scope of Section 4 of the Act has to be examined which provides interlaia:-
"4. Punishment to Contractor for violation of contract etc.-
Whoever being a contractor of a works contract entered into with a works department, intentionally, knowingly or with a corrupt motive executes the work in material violation of the terms of the contractor or in flagrant disregard of the standards, specifications, orders or directions given by the works department, or its officers, so as to adversely affect the qualify, workmanship, strength of life of the work or part of it, shall be punished with imprisonment of either description Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 18 which may extend to three years or with fine or with both."
A question would be whether the petitioner in the first place, when he was given supply order by the District Literacy Society for supplying exercise book, was he a contractor in relation to the work, inasmuch as, the work as defined under the 1983 Act means any work relating to survey, construction, repairs or maintenance of any building, super-structure, dam, weir, canal, reservoir, tank, take, road, bridge, culvert, well including tubewells, factory workshop, water supply system, electric installation system or any other work which the State Government may, by notification, specify in this behalf and includes surveying, planning, drawing, designing, purchase, supply or storage of goods, mechanically propelled or electrically operated vehicles of all descriptions, plants, machinery, tools, spares or all other materials and equipments relating to the construction, maintenance or repairs of any to the aforesaid works.
Admittedly, the supply of exercise book has not been notified as work as defined under Section 3(f) of the 1983 Act.
There would be yet another reason for non-application of 1983 Act, inasmuch as, Section 39 thereof reads as follows:-
"39. Cognizance of offence. - No Court shall take cognizance under this Act against any person unless a report in writing is made by such an officer of the State Government as it may, by a notification, specify:
Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 19 Provided that no such report shall be made against a member of Judicial Service of State except with the prior concurrence of the High Court."
As with regard to the impugned order of cognizance even if it be assumed for the sake of argument that an offence under Section 4 of the 1983 Act, had been allegedly committed by the petitioner and his firm, can the resultant prosecution through the impugned F.I.R. against the petitioner be said to have been filed by the competent officer of State government as prescribed under Section 39 of the 1983 Act. In this regard, it has to be taken into consideration that such officer of the State Government has to be specifically notified but there is nothing on record to show that the Secretary to the District Literacy Society, Nalanda was ever notified in terms of Section 39 of the Act. To that extent, Mr. Ajit Kumar learned counsel for the petitioner, has rightly placed reliance on the judgment of this Court in the case of Shyam Chandra Sharma wherein considering the scope of a similar provision contained in Section 135A of the Electricity Act, 2003, it has been held that in absence of authorization in favour of any officer of the Board to lodge First Information Report for commitment of theft of electricity, the criminal prosecution could not be sustained. As a matter of fact, Mr. Kumar is also correct that if the 1983 Act was to be made applicable against the petitioner in the present case, his prosecution even otherwise Patna High Court Cr.Misc. No.37502 of 2006 dt.29-06-2012 20 could have failed because from the case diary produced, it is clear that only an officer in the rank of Sub-Inspector who had investigated the case whereas Section 40 of the 1983 Act specifically prohibits any officer below the rank of Inspector from investigating the criminal case under the 1983 Act.
That being so, in the considered opinion of this Court, neither the allegation nor the capacity of the informant nor the manner of investigation would attract the provision of 1983 Act and therefore, the impugned order taking cognizance cannot be justified even in terms of Section 4 of the 1983 Act.
Thus, having given anxious consideration to the entire materials on record and in the light of the discussions made above, this Court must hold the impugned order taking cognizance to be bad. This application is, accordingly, allowed and the impugned order taking cognizance dated 25.8.2006 and the resultant entire criminal proceeding against the petitioner are hereby quashed.
(Mihir Kumar Jha, J) Patna High Court Dated 29th of June, 2012 A.F.R./Rishi