The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 1149 of 2012 ---- Vijay Kumar Singh son of Sri Ram Pravesh Singh, Resident of Dayal Nagar, Ratu Road More, PO Hehal, PS Sukhdev Nagar, Ranchi. The State of Jharkhand through S.P., C.B.I. -versus- … Petitioner … Opposite Party ---- WITH W.P.(Cr.) No.211 of 2012 ---- Bibhuti Bhushan Prasad Amar S/o Late Vishwanath Prasad Amar R/o 4 D, Bageshwari Apartment, PO Ratu Road, PS Sukhdeonagar, Ratu Road, Ranchi. The State of Jharkhand through C.B.I. -versus- … Petitioner … Respondent ---- CORAM : HON’BLE MR. JUSTICE ANANDA SEN ---- For the Petitioners : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate Mr. Akshansh Kishore, Advocate For the Respondents/ Opp. Party : Mr. R.N. Singh, Sr. P.P. Mr. Aditya Raman, AC to GA III Mr. Shambhu Nath Singh, Advocate Mr. Jitendra Sharma, Advocate ---- O R D E R RESERVED ON 25.11.2022 PRONOUNCED ON 05.05.2023 1. Cr. M.P. No.1149 of 2012 has been filed by petitioner Vijay Kumar Singh and W.P.(Cr.) No.211 of 2012 has been filed by petitioner, Bibhuti Bhushan Prasad Amar. Both were the Directors of M/s. Aroma Constructions (P) Ltd. 2. They have challenged the order dated 25.10.2011 passed by the Special Judge, CBI, Ranchi in RC 03 (A)/2011-R, whereby the Court took cognizance of offence under Sections 120B read with Sections 420, 468, 471 of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 52 of the Jharkhand Regional Development Authority Act, 2001 and Section 82 of the Registration Act, 1908 and thereafter summoned the petitioners; a prayer has also been made to quash the entire criminal proceeding pending against the petitioners in the aforementioned criminal case. 2 3. Criminal case was set on motion on a written complaint of the Registrar General of this Court to the Superintendent of Police, Central Bureau of Investigation, Ranchi, pursuant to the order passed by this Court in W.P.(PIL) No. 1531 of 2011. The said letter indicates that the Court had taken judicial notice of rampant unauthorized constructions being made in the city of Ranchi by making deviations from sanctioned plan. It has been further mentioned that ignoring the bylaws and planning standards of Ranchi Regional Development Authority, rampant constructions are being made. The authorities are duty bound to scrutinize the plans in terms of guidelines and bylaws and they are supposed to ensure strict compliance of the same. The letter further indicates that during last 10 (ten) years plan for 1574 multi-storied buildings were sanctioned, but only 64 completion certificates were received. There are numerous unauthorized construction cases initiated, which suggests that there is rampant violation of the bylaws and the authorities have deliberately and intentionally failed to prevent such rampant illegal constructions. Parking spaces have been converted to commercial spaces for which there was no sanction, thus, there is encroachment at the instance of builders and others. There are instances of re-sanctioning of plans by the authorities, which perfectly sought to legalise wrong doings. By referring to two judgments of the Hon’ble Supreme Court in the case of Priyanka Estates International (P) Ltd. & Others versus The State of Assam & Others [(2010) 2 SCC 27] and in the case of Dr. G.N. Khajuria and others versus Delhi Development Authority & Others [(1995) 5 SCC 762], the Registrar General informed that the persons and officers, who have misused the powers, should be properly punished. On the aforesaid facts, the Registrar General wrote to the Superintendent of Police, Central Bureau of Investigation that the erring builders and the influential persons and the officers should be punished for offences punishable under Section 120B read with Sections 420 of the Indian Penal Code read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Sections 52 and / or 55 of the JRDA Act. Thus, a direction
Facts
was given to institute a First Information Report. On the aforesaid complaint, the instant First Information Report was lodged. 4. The investigation was taken up. The investigating agency, so far as these two petitioners are concerned, filed Chargesheet No.17 of 2011 dated 25.10.2011 in RC 03A of 2011(R). Allegation against these petitioners, which transpired after conclusion of the investigation is that they are the 3 Directors of M/s Aroma Constructions (P) Ltd., which is involved in illegal construction of multistoried building. 5. This entire Chargesheet No.17 of 2011 deals with the allegations against M/s Aroma Constructions (P) Ltd. and the illegalities committed by them in construction of Chandralok Apartment. During investigation, it was found that a development agreement dated 21st August, 1994 was executed between landlords and M/s. Aroma Constructions (P) Ltd., through its
Legal Reasoning
Information Report or the complaint, prima facie an offence is made out, then the order taking cognizance cannot be quashed. 11. In the case of State of Haryana & Others versus Bhajan Lal & Others, reported in 1992 Supp(1) SCC 335, the Hon’ble Supreme Court has laid down guidelines for exercising inherent powers to quash a First Information Report. After discussing the law and the several judgments, the Hon’ble Supreme Court, in paragraph 102 of the said judgment has laid down the following principles when an FIR can be quashed: - 5 (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 12. In the aforesaid judgment, the Hon’ble Supreme Court has held that the High Court is entitled to exercise its inherent jurisdiction for quashing the criminal procedure or a First Information Report, when the allegations made in the First Information Report do not disclose commission of a 6 cognizable offence. Whether a First Information Report has to be quashed or not depends on particular facts of each case. 13. In the case of Rupan Deol Bajaj (MRS) & Another versus K.P.S. Gill & Another, reported in (1995) 6 SCC 194, the Hon’ble Supreme Court, at paragraph 23, has observed and held that:- “…………….. – the settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein…..” 14. Similarly, in the case of Rajesh Bajaj versus State (NCT of Delhi) & Others, reported in (1999) 3 SCC 259, at paragraph 9, the Hon’ble Supreme Court has held as under: - 9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal the Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder (SCC p. 379, para 103) “103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or 7 otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not counter an arbitrary jurisdiction on the court to act according to its whim or caprice” 15. In the case of Medchi Chemicals & Pharma (P) Ltd. versus Biological E Ltd. & Others reported in (2000) 3 SCC 269, in paragraph 2, the Hon’ble Supreme Court has held as under:- 2. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated 16 as rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge- sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount. 16. From the law laid down by the Hon’ble Supreme Court, which has been cited hereinabove, it is clear that an FIR can be quashed invoking inherent jurisdiction, if the allegations made in the First Information Report taken at their face value do not constitute the offence as alleged. Further, it is also clear that this power has to be exercised very sparingly. At the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein, nor can weigh the allegations, neither shift the burden. The statements made in the FIR have to be taken on their face value and accepting those statements to be true, the Court has to judge as to whether 8 any offence, as alleged, is made out or not. If on the face value, an offence is made out, the FIR cannot be quashed. This means that if an offence, or an offence, as alleged, is not made out from bare perusal of the FIR, the FIR can be quashed to prevent the abuse of the process of the Court. 17. Now, considering the aforesaid principles as laid down by the Hon’ble Supreme Court, it has to be seen as to whether composite order of cognizance and summoning can be sustained or not. 18. From the facts, which emerged after investigation with respect to these two petitioners, I find that though there was approval for construction of 6 flats by RRDA, but the Company constructed and sold 9 units in Chandralok Apartment with a dishonest intention and a common parking space was also used for such construction. Active role was played by the Director in getting the revised plan sanctioned in BC 102/07 by manipulating facts. Knowing fully well that the construction on the ground floor was not sanctioned, they constructed the same with a dishonest intention and sold the units. Further, from the chargesheet, it is clear that they have falsely mentioned in the agreement that 9 units were sanctioned vide BC 359/96 while at that time only 6 units were sanctioned. Further, it is apparent from the chargesheet that while getting the revised plan BC 102/07 sanctioned, they falsely represented that the construction of the unit at the ground floor was already sanctioned vide BC 359/96. They also dishonestly mentioned the road width to be 25’, which was, in fact, 18’. These allegations in the chargesheet, definitely, make out an offence of mis-representation, committing fraud. In Chargesheet No.17/2011, the investigating agency also found that Surendra Nath Mandilwar, Secretary of RRDA and Ram Kumar Singh, Town Planner connived with these two petitioners. In the Chargesheet No.17/2011, it is mentioned that Surendra Nath Mandilwar allowed the builders, i.e., the petitioners to use forged documents as genuine. Said Surendra Nath Mandilwar abused his official position and gave benefit to the firm of these two petitioners. 19. The case of these two petitioners and other accused, which have been dealt with in Chargesheet No.17/2011 is different from that of accused, who have been dealt with in Chargesheet No.16/2011. It is a fact that name of Ram Kumar Singh appears in both the chargesheet, but in Chargesheet No.16/2011, the builder, who is the main accused, who allegedly took undue advantage and conspired with the officers, has been granted relief by a Coordinate Bench of this Court and his criminal proceeding was quashed, which was upheld by the Hon’ble Supreme Court. When the allegation of conspiracy involves more than one accused person and in the case of 9 Ashlesha Constructions (P) Ltd. and Binay Prakash wherein it has been held that case of conspiracy has failed, meaning thereby the other accused in Chargesheet No.16/2011 also cannot be held guilty of conspiracy, but, the case here is not the same. The investigating agency found evidence of conspiracy, which has been highlighted in the chargesheet itself. The investigating agency found that forged documents were used as genuine and Surendra Nath Mandilwar and Ram Kumar Singh allowed these two petitioners to use those forged documents. These facts, which emerged in the chargesheet, need to be proved. Thus, prima facie a criminal offence is made out. Thus, I am not inclined to interfere with the order taking cognizance and issuing summons so far as these two petitioners are concerned. 20. Accordingly, these two cases, i.e., Cr. M.P. No.1149 of 2012 and W.P.(Cr.) No.211 of 2012 are hereby dismissed. 21. I.A. No. 10477 of 2022, I.A. No.11064 of 2019 in Cr. M.P. No.1149 of 2012, and I.A. No. 7367 of 2017, I.A. No.3913 of 2018 and I.A. No.10551 of
Arguments
Managing Director Shri Vijay Kumar Singh. According to the Development Agreement, on the land measuring 5 K 11 Ch., Plot No.1717, Village Chadri, Ranchi of the land owners, the builders were required to construct a multistoried apartment on turnkey basis in which the landlords were supposed to get 02 flats and Rs.2,80,000/- in lieu of the land mentioned above. It is evident from the Schedule C of the Development Agreement that the land lords were supposed to get, in addition to above, the entire roof of the proposed building (the entire fifth floor). Hence, it is clear from the development agreement that from the very beginning the builders had intention to construction a G+4 structure. 6. So far as the petitioners are concerned, allegations against each of them have been specifically summarized by the Investigating Officer in the chargesheet. For better appreciation, I am quoting the specific overt acts, which surfaced after investigation against each of these petitioners, which has been mentioned in the chargesheet, which is as under: - Though, construction of only 06 flats/units was approved by the RRDA in 1996, the company constructed and sold 09 units in the Chandralok Apartment and in the process dishonestly encroached parking/common usage space of the residents of the ‘Chandralok Apartment’. Shri Bibhuti Bhushan Prasad Amar was the active director of the company and he played active role in getting the revised plan sanctioned vide BC 102/2007 by manipulating the facts. Being director of the company they were in the knowledge that the construction at the ground floor was not sanctioned, but with dishonest intent an agreement for sale of the unit at ground floor was executed and the unit was sold. Being director of the company they were in the knowledge that the RRDA had approved construction of only 06 units and the unit at the ground floor was not sanctioned, but, in the sale deeds executed between M/s. Aroma Constructions (P) Ltd. and purchasers for the sale of the units it was falsely mentioned that the construction of 09 units was sanctioned vide BC Case No.359/96. While getting the revised plan vide BC 102/2007 sanctioned they falsely represented that the construction of the unit on the ground floor was already sanctioned vide BC 359/96. In the Key Plan of BC Case No.102/07 the road width was dishonestly and fraudulently shown as 25 feets, whereas the same was only 18 feets. 4 7. Counsel appearing on behalf of the petitioners submits that from the allegations levelled, it cannot be said that there was any criminal intent. At best, the case can be that of encroachment and violation of the Rules, Guidelines and Bylaws of RRDA. He submits that if at all there is an omission on the part of these two petitioners, the same is civil in nature. Counsel for the petitioners referred to several judgments, which are as under:- (i) Satish Mehra v. State (NCT of Delhi) [(2012) 13 SCC 614] (ii) Durga Prasad versus State of Bihar [1995 SCC OnLine Pat 403] (iii) S.K. Alagh versus State of Uttar Pradesh and Others [(2008) 5 SCC 662] (iv) Sharon Michael and Others versus State of Tamil Nadu and Another [(2009) 3 SCC 375] (v) Thermax Limited and Others versus K.M. Johny and Others [(2011) 13 SCC 412] (vi) Alpic Finance Ltd. versus P. Sadasivan and Another [(2001) 3 SCC 513] (vii) Mohammed Ibrahim and Others versus State of Bihar and Another [(2009) 8 SCC 751] 8. The Opposite Party Central Bureau of Investigation vehemently opposed the prayer of the petitioners and argued in support of the materials collected against the petitioners in course of investigation. The Intervener also argued that they are the aggrieved persons as they are resident of the Chandralok Apartment, so they need to be heard. 9. I have heard all the parties at length including the counsel appearing for the intervener, who have placed their case and stated that there are materials to suggest that forgery has been committed by the petitioners. 10. It is well settled principle that if from bare perusal of a First
Decision
2022 in W.P.(Cr.) No.211 of 2012 also stand disposed of. Kumar/Cp-03 (Ananda Sen, J.)