The High Court
Case Details
In the High Court of Jharkhand at Ranchi Cr.Rev.No.839 of 2012 Khagendra Kumar ..………………………………...Petitioner V E R S U S State of Jharkhand through Vigilance…. Opposite Party CORAM: HON’BLE MR. JUSTICE R.R.PRASAD For the Petitioner : Mr.Anil Kumar Sinha, Sr. Advocate For the Vigilance : Mr.Shailesh, Advocate 7/ 22.8.13. This revision application is directed against the order dated 5.9.2012 passed by Special Judge, Vigilance, Ranchi in Special Case no.85 of 2010 (arising out of Vigilance case no.68 of 2010) whereby and whereunder prayer made by the petitioner for his discharge from the case was rejected. It appears that in compliance of the order passed by this Court in W.P(PIL) No.1530 of 2009, a preliminary enquiry was conducted by the Vigilance Department wherein it was found that in spite of Junior Engineers of Building Division being available, Assistant Teachers, who were having diploma/degree were deputed to supervise and to construct building of primary schools and other schools situated in different blocks of Bokaro district under the sponsored programme of the Government. They in course of constructing/supervising of construction work of the building of the schools indulged themselves in corrupt practices and thereby they put the Government to heavy loss.
Facts
On the basis of preliminary enquiry, FIR was lodged wherein it was alleged that in the meeting of Reflection-cum-Planning held at Ranchi, a decision was taken on the plea of dearth of Junior Engineers to impart training to the teachers having diploma in engineering so that they may be entrusted with the job of construction/supervision of the building of the schools. Pursuant to that decision, the then District Superintendent of Education-cum-Project Officer, Sarva Shiksha Abhiyan, Bokaro deputed six teachers for having training at the District Institute of Education and Training (DIET), Ratu, Ranchi, vide its letter dated 5.5.2004. After they received training at DIET, the then Deputy Commissioner-cum-Chairman, Sarva Shiksha Abhiyan, Bokaro deputed them in different blocks for supervising the work of construction of the building of new primary schools and upgraded schools, vide its letter as contained in memo no.998 dated 1.12.2004. By the said order Ashok Kumar Bharti was deputed in Gomia block. Subsequently, the then Regional Deputy Director, Education, North Chota Nagpur, Hazaribagh vide its letter dated 7.2.2005 entrusted Ashok Kumar Bharti to take up the work of the construction of the building of the schools situated in Chandankiyari block. When the then Minister concerned came to know about the fact that from the teachers of the schools work which was supposed to be done by the engineer is being taken, he immediately passed an order for stopping that practice. Pursuant to that, the teachers were relieved from the construction work of the school. However, the petitioner, the then Regional Deputy Director, Hazaribagh, vide its letter dated 17.9.2007 entrusted Ashok Kumar Bharti with the construction work of the building of the schools situated in Petarwar block and also of the building of Kasturba Gandhi Residential School. Thus, it has been alleged that teachers in contravention of the Rule of the Government were deputed to do the construction work/supervising the construction work of the building of the schools and they in that course, misappropriated huge amount. The matter was taken for investigation and after completion of the investigation, when charge sheet was submitted, cognizance of the offences punishable under Sections 120B, 406,409, 467, 478, 471 of the Indian Penal Code and also under Section 7/13(2) read with Section 13(1)(d)(c) of the Prevention of Corruption Act was taken. Subsequently, an application was filed under Section 239 of the Code of Criminal Procedure for discharging the petitioner from the case by taking plea that this petitioner, who was posted as Regional Deputy Director of Education under the order of the Government had deputed Ashok Kumar Bharti to do construction work of the building of the school situated in Peterbar Block and also of the building of Kasturba Gandhi Residential School only and apart from that he did not do anything so as to be put on trial for commission of offence of cheating, misappropriation or forgery, still his prayer was rejected. Being aggrieved with the order dated 5.9.2012, this application was filed.
Legal Reasoning
It is well settled that in a case where upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. In this respect, I may refer to a decision rendered in a case of Union of India vs. Major J.S.Khanna [(1972) 3 SCC 873] wherein the Hon’ble Supreme Court did opine thereunder: “22. It is true that at the stage when the Special Judge drew up charges and decided to proceed with the case on the footing of a conspiracy to defraud the Government, he had only to see that there was a prima facie case against the two respondents. That could also be the basis upon which the High Court had to try upon two revision applications. Even so, there had to be some material before the Special Judge which could point towards a conspiracy in which the two respondents had joined. Such of the statements which the investigating officer could procure did not as the High Court observed, point to such a conspiracy. What appears to have been lost sight of by the Special Judge was the fact that the period during which the orders in question were placed was an emergency period, when procedure laid down for such orders could not perhaps be strictly adhered to. He also appears to have lost sight of the fact that out of the thirteen orders in question, four of the value of Rs.32,000/- and odd were placed by Brig. Mani, and orders only for the balance of Rs.8000/- and odd were placed by Res. Khanna. It may be that someone had played fraud in the matter of quotations in the name of Darrang Transport, United Motor Works, Auto Stores, etc. But unless there was some material at least to link these two officers with the person who tendered those quotations, it is difficult to say that there were conspirators who had joined with the rest of the accused to defraud the Government. In these circumstances, we find ourselves unable to agree with the contention of Mr. Mukherje that the High Court was in error in coming to the conclusion that no prima facie case had been made out against either of the two officers.” Further in a case of State of Maharashtra vs. Som Nath Thapa [(1996) 4 SCC 659] the Hon’ble Supreme Court held as under: 30. In Antulay case Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of sections, that despite the difference there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of ‘prima facie’ case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. 31.Let us note the meaning of the word ‘presume’. In Black’s Law Dictionary it has been defined to mean to believe or accept upon probable evidence. In shorter Oxford Dictionary it has been mentioned that in law ‘presume’ means ‘to take as proved until evidence to the contrary is forthcoming.’ Stroud’s Legal Dictionary has quoted in this context a certain judgment according to which ‘A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged.’ In Law Lexicon by P.Ramanatha Aiyar the same quotation finds place at P.1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of material on record, a court could come to the conclusion hat commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might be committed the offence it can frame the charge, though for conviction conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” Having noticed the said decision referred to above, the Hon’ble Supreme Court in a case as referred to on behalf of the Vigilance (Some Chakravarty vs. State through C.B.I) did hold hereunder: “ The courts although may take a strict view of an offence where fraud is alleged against a public servant, but only because it is found to have been committed, the same by itself may not be sufficient to arrive at a conclusion that all officers who have dealt with the files at one point of time or the other would be taking part of conspiracy thereof or would otherwise be guilty for aiding and abetting the offence. It is necessary to deal with the individual act of criminal misconduct for finding out a case therefore.’ However, the Hon’ble Supreme Court taking into account the fact and circumstances of the case that the appellant (Some Chakravorty) had never been assigned any duty in respect of processing or signing the bills for ad hoc advertisement, rather she was assigned duty only of re- advertisements and that those bills were not sanctioned/approved by the competent authority i.e. the Chairman/Executive Director and also on account of the fact that the prosecution had started examination of the witness, the Hon’ble Supreme Court declined to exercise discretionary jurisdiction under Article 136 of the Constitution of India. So far the instant case is concerned, I have already indicated that the prosecution has come forward with the case that the petitioner had entrusted additional job to Ashok Kumar Bharti of the construction of the building of Kasturba Gandhi Residential School and other schools situated in Petarber Block but that, as per the averment made in the petition particularly in reply to the counter affidavit, was done under the decision taken by the Government. That apart, nothing seems to be there against the petitioner and therefore, in absence of any other material showing act of connivance with other accused persons, it hardly involves the petitioner with culpability. It be stated that it is the case of the prosecution that Ashok Kumar Bharti, who happens to be an Assistant Teacher should not have been entrusted with the job of civil work but it has already been noted that he was entrusted with the said job under the decision taken by the Government. However, he seems to have committed the offence of misappropriation in connivance with others. But so far this petitioner is concerned, in absence of any other material other than what had been stated, the petitioner cannot be associated with even with the aid of Section 120B of the Indian Penal Code. For establishing Act of Criminal Conspiracy, the prosecution need to come forward with following accusation. 1. 2. 3. that the court agreed to do or caused to be done an act that such Act was illegal or was to be done by illegal means that some act was done by one of the accused in pursuance of the agreement. At the same time, it has also been well established that where the agreement is well to do or caused to be done an act which is itself an offence to the overt act be proved, the crime of offence of criminal conspiracy is established one such crime is proved. Nothing seems to be there against the petitioner to presume that the said Ashok Kumar Bharti was entrusted with the job of construction of the building of the school only for the purpose of committing offence of forgery and misappropriation, rather the fact which has emerged is that under the decision taken by the higher authority, said Ashok Kumar Bharti was entrusted with the job of doing civil work. In such situation, one can not come to conclusion that the petitioner was one of the conspirators. Thus the act done by the petitioner cannot be said to be sufficient to proceed against the petitioner. The fact of the present case is quite different from the fact of the case referred to on behalf of the Vigilance and therefore, the ratio laid down in that case is never applicable in the instant case. So far the offence under Section 13(1)(d)(c ) read with Section 13(2) of the Prevention of Corruption Act is concerned, the petitioner, according to the prosecution, by deputing the teachers for training initiated the whole process of illegal act but he has never been alleged to have done that by adopting corrupt practices or illegal means for having pecuniary advantage/ valuable thing by himself or for any other person. The aforesaid essential ingredient constituting offence under Section 13(1)(d) (c ) is completely lacking as nothing could be placed to show even an iota of evidence/material or receiving pecuniary advantage and as such, one cannot be prosecuted for an offence under Section 13(1)(d)(c) read with Section 13(2) of the Prevention of Corruption Act. The court below did not consider all these aspects of the matter at all and thereby the court can certainly be said to have committed illegality in refusing to discharge the petitioner from the case. Accordingly, it is set aside and hence, this application stands allowed. Consequently, the petitioner is discharged from the case. ND/ ( R.R.Prasad, J.)
Arguments
Mr. Anil Kumar Sinha, learned Sr. counsel appearing for the petitioner submits that when it was brought to the notice of the Hon’ble Court by way of Public Interest Litigation that one school teacher, namely, Ashok Kumar Bharti has been deputed to function as Junior Engineer to supervise the construction of the building of 124 primary schools and the buildings of other schools in the district of Bokaro, the Hon’ble Court directed the Vigilance to enquire into as to who are the persons responsible for deputation of Assistant Teachers for the purpose of civil work under Sarva Shiksha Abhiyan, Bokaro and secondly, to initiate a proceeding against the persons involved in the financial bungling of the public school. The matter was taken up for enquiry. During which it was found that pursuant to the decision taken in the Reflection-cum-Planning Meeting at Ranchi, some of the teachers having diploma in engineering were deputed to have training at DIET so that they be entrusted with the job of supervision of the construction of the building of different schools. Among them, one Ashok Kumar Bharti was also sent for training. Thereupon the then Deputy Commissioner, vide its letter dated 1.12.2004 deputed them to do construction work of the building of the schools. Subsequently, when it was felt by the higher officials of Sarva Shiksha Abhiyan that progress of the work is too slow, a decision was taken to entrust the job of construction of the building of each school so that fund may not lapsed. Pursuant to that decision, the petitioner, who was posted as Regional Deputy Director of Education, North Chota Nagpur, Hazaribagh from 4.7.2007 to 21.10.2008 entrusted work to Ashok Kumar Bharti to construct the school buildings situated in Petarbar Block and also the school buildings of Kasturba Gandhi Residential School. That apart, no role was played in any manner by the petitioner facilitating Ashok Kumar Bharti to draw money unauthorizedly or illegally, still the petitioner is being prosecuted for the offences under which cognizance of the offence have been taken. Thus, it was submitted that there is absolutely no ground for presuming that the accused has committed offence and if that is so, the petitioner deserves to be discharged from the case. In support of his submission, learned counsel appearing for the petitioner has referred to a decision rendered in a case of Amit Kapoo vs. Ramesh Chandra and another [(2012) 9 SCC 460] and also in a case of State of U.P through C.B.I vs. Dr. Sanjay Singh and another [(1994) Supp (2) SCC 707]. As against this, Mr.Shailesh, learned counsel appearing for the Vigilance submits that during investigation of the case it has been found that the then Deputy Commissioner and the Officers of the Education Department including the petitioner in connivance with each other appointed Ashok Kumar Bharti, Assistant Teacher with the job of construction of the school building who misappropriated huge amount and thereby the court has not committed any illegality in refusing to discharge the petitioner from the case. In this regard it was submitted that initially Ashok Kumar Bharti was entrusted with the job of construction of some of the buildings of the schools but this petitioner, who was posted as Regional Deputy Director of Education from 4.7.2007 to 21.10.2008 entrusted Ashok Kumar Bharti work to construct the building of the school of Kasturba Gandhi Residential School and other schools situated in Petarber Block and thereby the petitioner was very much part of the conspiracy which was hatched by the accused persons in order to misappropriate the amount. Learned counsel by placing reliance on a decision rendered in a case of Soma Chakravarty vs. State through C.B.I [(2007) 5 SCC 403] submitted that the Hon’ble Supreme Court upon only accusation that the appellant did process the bill upon which other accused persons did draw the money did find that accusation is sufficient to put the appellant to trial. According to learned counsel, similar is the case here and hence, the petitioner never deserves to be discharged from the case. Having heard learned counsel appearing for the parties, it does appear that in the entire process of the alleged acts e.g. deputing the teachers for training of the schools who were having diploma/degree in engineering, deputation in the blocks to take construction or to supervise the construction of the building of the schools and then payment of the amount to those teachers without completion of the construction of the building to that extent to which payments were taken, petitioner’s role appears to be only to entrust Ashok Kumar Bharti, who had already been entrusted with work, the job of construction of the building of the school of Kasturba Gandhi Residential School and other schools situated in Petarber Block. Thus, the question does arise as to whether this accusation would be sufficient to put the petitioner to trial ?