High Court
Case Details
AB 3239/2013 BEFORE HON’BLE MR. JUSTICE B.D.AGARWAL The petitioners in AB Nos. 3212, 3239. 3281, 3319, 3320 and 3321 are the Executi ve Engineer, Assistant Executive Engineer and Junior engineers in the department of Irrigation, Assam. Petitioners in AB No.3265 of 2013 are the contractors an d they were allotted work of a construction of Suez Gate and downstream canal at Nadihagurah, Ulttaikhanda in Barpeta, district Assam under ’Flow Irrigation Sch eme’. The estimated cost of the project is Rs. 8 crores. The work was divided to the two contractors. The petitioner, Apurba Kumar Choudhury was to execute the work of Spill Ware with ancillary works for an amount of Rs.4 crores 1 lakh and 42 thousand and the petitioner Sri Nurul Islam was to execute work of Guide Bund , protection works, canal system, approach road etc. for an amount of Rs.3 crore 86 lakhs and 3 thousand and 2 hundred. Work orders were issued on 4.2.2011 and 7.2.2011 and major portion of the works have already been executed, except the a pproach road and minor finishing works. As informed to the court the contractors have been already paid more than Rs.3 crores. The petitioners are facing the c harge of mis-appropriation of the fund and cheating the Government with conspira cy.
Legal Reasoning
2. The FIR has been lodged by a group of people representing a social organ isation on 17.7.2013. The FIR has been registered as Patacharkuchi PS Case No. 2 85 of 2013 u/s 120(B)/420/409 IPC. Apprehending their arrest the aforesaid seven bail applications have been filed u/s 438 Cr.PC by the officers and contractors seeking the privilege of pre-arrest bail. 3. Heard Sri BM Choudhury, Sri BD Das, Sri AK Choudhury and Sri SK Jain, le arned counsel for the petitioners and Sri K Munir, learned Additional Public Pro secutor. I have also gone through the FIR and the documents annexed with the bai l applications as well as the case diary. It may be noted that the allegation of cracks in the Suez gate and ancil 4. lary works are not disputed by the petitioners. The I.O. has also attached as ma ny as 15 numbers of photographs showing cracks in the ’Bund’ and ancillary works as well as poor quality of construction works. Though the construction works b egan in first week of February, 2011 itself and though the officers of the depar tment were regularly visiting the site no officer took any steps to ascertain sc ientifically as to whether the works were being executed strictly in accordance with the specifications. For the first time, the petitioner Sri Dharanidhar Bhu yan, Executive Engineer noticed the cracks at different places and submitted an initial report to the Superintendent Engineer vide his letter dated 2.7.2013. No t only that, the said Executive Engineer also requested the Deputy Secretary ( B udget) of Irrigation Department not to release further fund against the said sch eme in view of various defects noticed in the work. Thereafter, the matter was b rought to the notice of superior authority and also to the Government within a f ortnight. The formal FIR was lodged by the NGO .
Legal Reasoning
5. The learned counsel for the petitioner in AB No. 3212 of 2013 submitted that the said Executive Engineer joined the Pathsala Irrigation Division only on 7.11.2012 and he was the first person to detect crack and reported it to the su perior authority vide letter dated 2.7.2013. Sri Choudhury, learned counsel for the petitioner submitted that the said petitioner did not approve any bill and b efore his joining about 70 % works were already executed and, as such, it cannot be said that the petitioner is involved in the alleged offence of mis-appropria tion, cheating in the alleged conspiracy. To some extent the submissions are worthy of consideration. At the same 6. time in his report dated 2.7.2013, it was made clear that the cracks were first noticed by the Assistant Engineer and not by the petitioner himself. Besides thi s, the petitioner joined the Pathsala Division on 7.11.2012 and the cracks in th e work came to his knowledge only in the first week of July, 2013 i.e. nearly af ter 8 months of his taking charge of the Patshala division. Had the petitioner b een diligent and sincere in his duty he could have prevented the Government loss much earlier. I have already mentioned earlier that prior to Sri Dharanidhar Bh uyan also the division was looked after by other Executive Engineers. However, n one of the them had adopted any technical method to ascertain that concrete work s were being executed as per specification. In view of the lapses on the part of Sri Dharanidhar Bhuyan in detecting the inferior workmanship in the execution o f the work it is difficult on my part to comment that the said officer is absolu tely innocent. However, the fact remains that the said petitioner brought the de fects in the work to the knowledge of his superior officers soon after noticing the same and also requested for withholding sanction of further allotment for th e scheme. Accordingly his bail prayer is accepted. The interim bail granted to t he petitioner, Dharanidhar Bhuyan on 24.7.2013 is hereby made absolute. The petitioners in AB No.3239 and 3281 are the Assistant Executive Engin 7. eers. According to Sri B.D.Das, learned senior counsel the petitioner, Binod Dek a held the charge for the said post on adhoc basis for a period of about one mon th. Similarly, the petitioner Sri Nripendra Mohan Das took charge from Binod Dek a only on 29.6.2013. Prior to that he was on deputation in another organisation. Since the major portion of the works were executed prior to June, 2013 there ap pears to be little role of the aforesaid two petitioners. Accordingly their bail prayer is accepted. The interim bail granted to the petitioners, namely, Binod Deka and Nripendra on 26.7.2013 is hereby made absolute. 8. The petitioners in AB No. 3321 Sri Binoy Talukdar is the Junior Engineer . He was given the charge of the site only for a period of one and half month f rom 7.2.2011 to 24.3.2011 during the initial period of the execution of the wo rks. In view of the short duration of the site charge I am of the view that the said petitioner is also entitled to anticipatory bail. Accordingly his bail pray er is accepted. The interim bail granted to the petitioner, namely, Binoy Taluk dar on 21.8.2013 is hereby made absolute. 9. The petitioner in AB No.3319 namely Sri Nalini Kumar Bora was Assistant Executive Engineer at Pathsala Irrigation Division. He was the in-charge of the scheme from the beginning till 31.5.2013. In this way, major portion of the wor ks were executed during his tenure. Luckily, the petitioner was promoted to the rank of Executive Engineer before the detection of the defect in the constructi on of the ’Bund’ and filing of the FIR. The petitioner has pleaded that he took all precautions not to allow the contractors to use inferior materials and alway s ensured good quality work in the construction of the aforesaid dam. However, t he plea of the petitioner is belied by large scale cracks developed in the dam . It is also strange to note that cracks were noticed almost within a month of de parture of this officer. Besides this the petitioner has taken another plea that till date only 50 % of the works have been executed and the scheme is yet to be formally commissioned. However, the case diary reveals that more than 80% works have already been executed. Except the ancillary works in the approach road res t of the works have been completely executed. The photographs of the site also s hows that the construction of Suez Gate and the canal bund have already been con structed. Looking at the photographs, it appears to me that the aforesaid works were executed during the period when the petitioner was the in-charge of the sit e. Had this officer been monitoring the execution of the work sincerely and had the officer got the materials used in the construction works tested in laborator ies at regular interval, cracks would not have developed in the dam. Hence, it a ppears to me that prima facie, that the petitioner Nalini Kumar Bora is one of t he prime accused in the offence. Hence, this petitioner do not deserve the extro -ordinary liberty of pre-arrest bail. Resultantly, his prayer for anticipatory b ail is rejected. Accordingly, interim bail granted to the petitioner on 21.8.201 3 stands vacated. 10. The petitioner in AB No. 3320 namely, Rupal Bora was the Executive Engin eer of Pathsala Division for the period between 7.2.2011 to 7.11.2012. Thereafte r the petitioner was promoted to the rank of Assistant Chief Engineer. I have al ready mentioned earlier that the work of construction of dam began in the first week of February, 2011. In this way, the petitioner was in the command of the di vision for a substantial period of 21(twenty one months). The petitioner’s plea is that he also ensured that unspecified materials are not used in the construct ion works. The tall claim of the petitioner is belied by large scale cracks app eared in the dam even before commencing of the same . The other plea of the peti tioner is that he was regularly directing his subordinate staff and contractors to ensure the construction of the dam in a planned and scientific manner so that it can withstand any natural calamity and erosion . In my considered opinion, a senior officer cannot be absolved from his responsibility and liability on such a plea. On the other hand, the petitioner was the seniormost officer in the Di vision and he should have properly guided the subordinate officers how to superv ise the workmanship technically. The petitioner has not made a single statement that while the work was in progress, he or his subordinate officers had collect ed samples of the concrete mixture to get it tested in the laboratories. Hence, it appears to me that this petitioner is also one of the prime accused in mis-ap propriation of the government money in collusion with the contractors and subord inate officers. Hence, the petitioner, Rupal Bora also do not deserve the privil ege of pre-arrest bail. Resultantly his prayer for anticipatory bail is rejected . Accordingly, interim bail granted to the petitioner on 21.8.2013 stands vacate d. 11. The petitioners in AB No.3265 are contractors and they have filed a comm on application u/s 438 Cr.PC, seeking anticipatory bail in the aforesaid case. T he petitioners are represented by Sri AK Choudhury learned counsel. The petition ers have pleaded that the FIR must have been lodged by vested interest to wreck vengeance . According to the learned counsel the petitioners have also been assi gned similar works at a different site namely, Deojara Flow Irrigation Scheme. I t has been stated in the bail application that some unsocial elements were seen damaging parts of the Suez Gate with sharp and heavy instruments. However, this plea has no relevance in considering the bail application for the simple reason that the allegation of causing damage to a Suez Gate pertains to a different sit e at Deojara and not related to Nadihagura Ulttaikhunda FIS. Besides this, there is no averment in the bail application that any FIR was lodged for the damages caused in the Suez Gate at Deojara FIS nor is there any averment that the same group of people had also damaged the Suez gate of the present scheme. During the course of hearing, Sri Choudhury learned counsel for the cont 12. ractors also handed over a Compact Disc(CD) in support of his plea that some mis creants must have damaged the construction works with malafide intention. It is made clear that the CD relates to Deojara FIS and not the scheme in dispute. I h ave viewed the CD and found that only one person was scratching the corner of a brick wall with an iron rod and even then he was able to crack the wall for mo re than a feet easily within few minutes. If the same contractors have also exec uted similar woks at Deojara FIS I can take a view that the quality of works in the other scheme is also very poor. Hence, the Chief Engineer , Irrigation Depar tment is directed to cause an enquiry for Deojara FIS dam immediately and if poo r workmanship is noticed he shall take appropriate action against the officers a nd the contractors. 13. Though no plea was taken in the bail application, the learned counsel or ally made a submission that crack in Suej Gate had developed due to defective de sign and not due to any poor workmanship. This submission was made on the basis of a report submitted by the Chief Engineer to the Government on 23.8.2013. The findings of the Chief Engineer for structural failure of the dam are reproduced below: (cid:28)Reason for failure: The nature of failure suggest that there has been undermin ing (piping) below the floor of the structure which has resulted in collapse of the left side head regulator as well as portion of the abutment wall. Insufficie nt depth of curtain walls as well as length of the floor may be primary reason f or collapse of the structure (cid:29). The above findings of the Chief Engineer do not indicate any defect in t 14. he design. It may be mentioned here that with the same design as many as 21 num bers of Flow Irrigation schemes have been taken up under AIBP fund and there is no evidence that Suez dam of any other scheme has collapsed due to defect in the design. There is also no evidence or any plea that the crack had developed due to flood or any other natural calamity. Contrary to that, photographs of the dam shows that entire river was almost dry at the relevant time. It is true that t he Chief Engineer has suggested increase in the overall length of the floor and also to provide adequate sheet piles covering the entire width of the floor and the retaining walls. The aforesaid measures have been suggested to prevent fur ther damage to the dam, but, the findings of the Chief Engineer do not support t he theory of defect in the design. 15. In my considered opinion, the contractors stand on the same footing with that of the technical officers of the department in the commission of the offen ce of cheating, mis-appropriation of money and breach of trust and without their connivance and conspiracy such large scale damages would not have occurred to the dam even before its commissioning. 16. In view of the incriminating materials available in the record against t he petitioners and also considering the gravity of the offence, the petitioners namely, Apurba Kumar Choudhury and Nurul Islam do not deserve the pre-arrest bai l. Accordingly, their prayer for anticipatory bail is rejected. Interim bail gra nted to them on 21.8.2013 stands vacated. Before closing the cases I express my displeasure the way the investiga 17. tion is carried out. Though the FIR was lodged on 17.7.013 the I.O. has done no thing except recording of statements of the officers and the contractors and tak ing certain photographs. The I.O. has failed to investigate the case technically and scientifically . No attempt was made by the I.O. to collect the samples of the concrete mixture and iron materials, used in the dam by the contractors and get it tested in laboratory. Had the I.O. obtained forensic opinion about the qu ality of the materials used in the work, perhaps he could have been in a positi on to submit the charge sheet by this time. Case diary has also been maintained in an haphazard manner. The I.O is so inefficient that he has not even paginate d the diary and has flouted the norms laid down by this court in the case of F akrul Islam &Ors. reported in 2012(2) GLT 994 . The I.O. also did not put any searching questions on his own to the witnesses to ascertain whether the officer s had visited the site, if so what was the frequency, time taken in the inspecti on nor has examined the supervisors of the contractors to ascertain the quality of materials and the proportion of the mixture used by them in the work. Hence, the Superintendent of Police, Barpeta is directed to hand over the investigatio n of this case to a senior police officer in the rank of DSP immediately. 18. With the aforesaid directions and observations all the anticipatory ba il applications are disposed of. 19. ta and Chief Engineer, Irrigation Department, Assam. A Copy of this order be furnished to the Superintendent of Police, Barpe