The State of Bihar through Vigilance vs ORAL ORDER

PACS) Sri Rudra Nand Jha and the Chairman of the Society Sri Pancha Nand Biswas and other unknown accused. The allegation was with regard to financial irregularities owing to mismanagement of funds received under the Indira Awas Yajna. The allegation as set out in the F.I.R. charges the accused persons of depositing the funds received under the said scheme in PACS when it was to be maintained in the nationalized Banks. It is alleged that an amount of Rs. 6,19,06,287/- was deposited in the Dehti PACS Ltd. Patna High Court Cr.Misc. No.39490 of 2011 (6) dt.23-02-2012 2 in its Accounts No. 163 and 3220. Allegation is that Rs. 25 lacs was withdrawn from the different nationalized banks, which was not disbursed to the beneficiaries. A number of advices bearing Nos. 1 to 24 was issued in favour of 1826 beneficiaries for disbursement of Rs. 4,38,24,000/- but without making payment to the beneficiaries the amount was reduced from the accounts and the advices were returned. It is further alleged that the amounts deposited in the PACS Banks was to be returned through bank draft which had not been carried out. The F.I.R. was instituted on the basis of fardbeyan dated

19.12.2008 of the Block Development Officer, Sikti and registered on

20.12.2008. The petitioner at the relevant time was holding the post of Block Development Officer, Araria. Mr. Giri, learned Senior counsel for the petitioner with reference to the F.I.R. submits that the petitioner is not named therein and his name has transpired during the course of investigation as he held the post of Block Development Officer, Araria in the year 2006. Learned counsel further submits that although no instance of misappropriation of fund has been made out against the petitioner, his only involvement in the present case is for the reason that the funds received under the Indira Awas Scheme were deposited with the PACS. It was submitted that in the process of advancing the Co-operative movement the funds received under the various Schemes of the Government were deposited with the PACS and that there was no law prohibiting the same rather the Deputy Development Commissioner by letter dated 02.12.2000 had accorded approval to this practice. It is submitted that for the first time a letter was issued by the Chief Secretary, Government of Bihar on 13.10.2008 issuing directives not Patna High Court Cr.Misc. No.39490 of 2011 (6) dt.23-02-2012 3 to maintain the funds received under the Schemes of the State Government in its Rural Development Department with the PACS/ Co-operative Bank as it was not secured and that it delayed the execution of the schemes. Learned counsel submits that the aforesaid letter of the Chief Secretary itself is confirmation of the practice prevalent at the relevant time, of deposit of funds received under the Schemes of the State Government, with the PACS or the Co-operative Banks. It is further submitted that even before the said letter was issued by the Chief Secretary, the petitioner withdrew all the money from the Dehti PACS on 25.08.2007 and whereafter no money was deposited with the PACS/Co-operative Banks. It was thus submitted that the deposit of the funds with the PACS/Co- operative Banks was neither an illegality nor any irregularity rather was a practice accepted in the Government and which practice was directed to be stopped only under letter of the Chief Secretary dated

13.10.2008(Annexure-6). Learned counsel further submits that apart from the said infirmity, if any, no other material has been gathered by the Agency supporting the allegation of misappropriation by the petitioner, of the funds allotted under the Indira Awas Scheme, for his personal gains except that the funds were maintained with the PACS in return of certain percentage as commission, which charge is yet to be proved. Learned counsel has further submitted that the charges against the petitioner were enquired into by the Divisional Commissioner and who vide his report dated 27.11.2007(Annexure-7) has merely held the petitioner guilty of opening an account with the Dehti PACS but has not found him guilty for misappropriation of public funds. It was thus submitted that in absence of materials supporting the charge of using the funds allotted under the Patna High Court Cr.Misc. No.39490 of 2011 (6) dt.23-02-2012 4 Scheme, for personal gains and in view of the findings in the Departmental Enquiry, the involvement of the petitioner is not correct. Learned counsel has relied upon the judgment of the Supreme Court reported in (2012) 1 SCC 40 to submit that pre-trial incarceration is not to be resorted to, in a punitive sense and that since the chargesheet has already been submitted in the present case, indicating completion of investigation, the continuation of the petitioner in custody is not justified. The prayer of the petitioner has been contested by Mr. Sharma, learned Senior counsel appearing on behalf of the Investigating Agency and who relying upon paragraphs 22 and 25 of the counter affidavit filed in the present proceedings has submitted that the funds allotted for disbursement to the beneficiaries did not reach them rather some were either not paid, while others were paid partially through middleman. Learned counsel while relying upon the statement made by co-accused Rudra Nand Jha submitted that the petitioner and other Block Development Officers were paid commissions for making deposits of the funds received under the Schemes, with the PACS and which was a substantial amount. Learned counsel with reference to a letter dated 29.06.2009 of the Block Development Officer, Araria addressed to the Investigation Bureau enclosing a chart showing the deposits made by this petitioner in the Dehti PACS submits that the amounts were paid to the beneficiaries directly although as per the Scheme, the amounts were to be disbursed to the beneficiaries through their respective accounts and not directly. It was thus submitted that the said action by itself is evident of the extent of bungling committed in the matter of disbursement of funds received under the Indira Awas Yojna and petitioner being the Block Development Officer, Araria at Patna High Court Cr.Misc. No.39490 of 2011 (6) dt.23-02-2012 5 the relevant time and under whose authorization the payments were to be made, has to stand the liability. Learned counsel has also relied upon the case diary to submit that the petitioner is a part of well organized network who have indulged in widespread embezzelement of Government funds at the cost of poor beneficiaries. Learned counsel, on instructions, has submitted that the disciplinary proceedings has since been completed and the petitioner has been dismissed from service. It is further submitted that the finding of the Enquiry Officer in the disciplinary proceedings was on the basis of materials available to him at the relevant time and that during the course of investigation several instances have come indicating the involvement of the petitioner in the loot of Government funds. I have heard learned counsel appearing on behalf of the petitioner and the Investigating Agency and have perused the materials on record. Undoubtedly, the petitioner held the post of Block Development Officer, Araria at the relevant time. It is also a matter of record that the petitioner had deposited a huge amount of fund received under the Indira Awas Yojna with the PACS. Nothing has been brought on record to show that this practice was contrary to the rules nor any guidelines or instructions have been placed prohibiting such practice. On the contrary the Chief Secretary taking note of the practice forbid the concerned officers from doing so as according to the Chief Secretary the funds were not safe and secured in the PACS or the Co-operative Banks. As stated by the petitioner and not controverted, the funds received by the petitioner under the Scheme and deposited with the PACS was withdrawn by him on 25.08.2007, much prior to the letter dated 13.10.2008 of the Chief Secretary. That the Patna High Court Cr.Misc. No.39490 of 2011 (6) dt.23-02-2012 6 petitioner benefited by earning commissions on deposits made with the PACS, is a matter of evidence to be tested during the course of the trial. Although sweeping statement has been made by the learned counsel for the Vigilance regarding disbursement of the funds directly to the beneficiaries and of being withdrawn without making payment of the same to the beneficiaries but no instance has been placed on record attributable to this petitioner. The Enquiry report of the Divisional Commissioner further supports the prayer of the petitioner. The arguments of learned counsel for the Vigilance that the finding of the Enquiry Officer exonerating the petitioner the matter of misappropriation and misutilization of Government funds was on the basis of the materials available at the relevant time and that sufficient materials have been collected subsequently indicating his involvement, does not reflect from the counter affidavit filed in the proceedings. Considering the circumstances aforenoted as also the fact that chargesheet has been submitted in the case, let the petitioner namely, Md. Perwezullah be released on bail on furnishing bail bond of Rs.10,000/- with two sureties of the like amount each to the satisfaction of Special Judge, Vigilance II, Patna in connection with Special Case No. 19 of 2009 arising from Sikti P.S. Case No. 165 of 2008 subject to the following conditions:- (a) That the petitioner shall accept the police papers on the given date and shall also be present on the date fixed for charge and if he fails to do so on two consecutive dates fixed for such purpose, the bail bond of the petitioner shall be liable to be cancelled. (b) The petitioner shall ensure his representation before Patna High Court Cr.Misc. No.39490 of 2011 (6) dt.23-02-2012 7 the Court below on each and every date fixed in the case and failure on the part of the petitioner to ensure his representation on two consecutive dates fixed without reasonable explanation to the satisfaction of the Court below, would entitle the Court concerned to cancel the bail bond of the petitioner and to take him into custody. Bibhash (Jyoti Saran, J)