Dismissed

Jai Ram Singh Alias Jaipal Singh v. The State Of Jharkhand Through Vigilance Department

Jharkhand HC5 Dec 2019Cr.M.P./238/2017

Case brief

AI extract

What is this about?

The High Court of Jharkhand refused to quash criminal proceedings against a petitioner clerk in a corruption case involving alleged misappropriation of funds for a CT Scan machine. The court held that allegations of criminal conspiracy warranted continued investigation despite the lack of a charge sheet.

What did the court decide?

The petition for quashing the FIR and criminal proceedings was dismissed with costs.

Jai Ram Singh Alias Jaipal Singh Vs The State Of Jharkhand… — Corruption | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. M.P. No.238 of 2017

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Jai Ram Singh alias Jaipal Singh Son of Sri. Kamdeo Singh, resident of Karmik Nagar, Near D.P.S., P.O. I.S.M, P.S. Saraidhela, District Dhanbad … … Petitioner

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Versus The State of Jharkhand through Vigilance Department … … Opposite Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. P.P.N. Roy, Senior Advocate : Mr. Soumitra Baroi, Advocate

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For the Opposite Party : Mr. T.N. Verma, Adv.

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09/05.12.2019 Heard Mr. P.P.N. Roy, learned Senior counsel appearing on behalf of the petitioner along with Mr. Soumitra Baroi, Advocate.

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2. Heard Mr. T.N. Verma, learned counsel appearing on behalf of the opposite party.

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3. This petition has been filed for the following relief:

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“In the instant criminal miscellaneous petition the petitioner prays for quashing the entire criminal proceedings instituted against the petitioner in connection of F.I.R being Dhanbad A.C.B P.S. Case No.09/16 for allegedly committing non-bailable offences under Sections 420/467/468/471/409/120(B)/109 of the Indian Penal Code and Section 13(2) read with section 13(1) (D) of the Prevention of Corruption Act, 1988 now pending in the Ld. Court of Additional Sessions Judge – IX – cum – Special Judge, Dhanbad.”

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4. Learned Senior counsel for the petitioner submits that a report was called for from the learned court below regarding the stage of the case and upon perusal of the report, it appears that charge sheet has not yet been submitted and accordingly cognizance has not yet been taken. A counter affidavit has also been filed in the present case by the opposite party indicating that investigation is not yet over.

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5. Learned Senior counsel submits that upon perusal of the F.I.R, ex facie, no criminal case is made out against the

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petitioner and accordingly, he refers to para 102 of the judgment passed by Hon’ble Supreme Court reported in 1992 Suppl. (1) SCC 335 (State of Haryana Vs. Bhajan Lal) and refers to sub para 1, 2 and 3 thereof to submit that it is a fit case where the entire criminal proceedings including the F.I.R should be quashed so far as the petitioner is concerned.

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6. The prosecution case in short is that the Police Inspector of Anti-corruption Bureau, Dhanbad wrote a letter dated 07.09.2016 to the Deputy Superintendent of Police for taking legal action and for registration of case against the accused including the petitioner under Section 420/ 467/ 468/471/ 409/120B/109 of Indian Penal Code and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 alleging that an amount of Rs.1,63,56,636/- of the government money has been misappropriated and embezzled by the then Principal Dr. Sharat Chandra Das and others in purchase of C.T. Scan Machine in Patliputra Medical College and Hospital, Dhanbad under Health, Medical Education and Family Welfare Department of Government of Jharkhand by misusing his post. Upon perusal of the allegation made in the F.I.R, it has been alleged that the date of installation of the machine was 16.11.2005 and an amount of Rs.1,63,56,636/-was paid and by this time, the machine had not even reached India.

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7. The learned Senior counsel for the petitioner submits that so far as the allegation in the F.I.R is concerned, the same relates to purchase of the machine by the tender committee and involvement of its members. Admittedly, the petitioner was clerk in the Department and no specific role has been assigned to the petitioner in the F.I.R. He submits that the petitioner has been made accused in this case merely because he was the clerk in the department. The learned Senior counsel has also submitted that the machine was purchased as back as in the year 2005 and the present case has been lodged in the year 2016.

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Learned Senior counsel further submits that on the one hand there is enormous delay in filing of the F.I.R and on the other hand in spite of filing of the F.I.R, the investigation has not yet been completed and charge sheet has not been submitted. This itself, shows that there is no material against the petitioner and accordingly, the present criminal proceedings be quashed so far as the petitioner is concerned.

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8. The learned Senior counsel has also relied upon the judgment passed by Hon’ble Supreme Court reported in (2015) 2 JLJR (SC) 207 in the case of Manik Taneja & Anr. Vs. State of Karnataka & Anr. and has referred to para 9 and 16 of the aforesaid judgment to submit that the present case cannot be dismissed merely on the ground that the petition is pre-mature and that the same has been filed even before completion of investigation.

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9. Counsel appearing on behalf of the opposite party on the other hand submits that there are serious allegations made in the F.I.R and the petitioner was not merely a clerk, but he was clerk (purchase) and apparently the petitioner was associated with the purchase department. He further submits that there is an allegation of criminal conspiracy in the present case and merely on the basis of F.I.R, it cannot be said that the petitioner has no role to play. He has also submitted that investigation is going on and the statement of the petitioner has already been recorded in the case diary. The learned counsel further submits that it has come during investigation that the petitioner was acting under the instruction of the Superintendent of the hospital and Superintendent of the hospital is also an accused in the present case, therefore, it is premature to quash this F.I.R and the matter being still under investigation, it cannot be said that ex- facie no criminal case is made out against the petitioner. He has also referred to para 13 of the counter affidavit wherein it has been stated that the petitioner being an Accounts clerk

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was duty bound to do his duty properly. It has also been stated that the petitioner is responsible for purchasing C.T. Scan Machine, violating the financial rules of the government and the payment was made for the same before installing and observing the proper functioning of the said machine. The said machine was not purchased on the rates of DGS & D. It has also been stated that the petitioner being an Accounts Clerk along with other officials were found to be involved in gross illegality and irregularity causing wrongful loss to the government and corresponding wrongful gain to themselves. It is further stated that during the investigation, it comes out that the payment was made to letter of credit, but the decision of the purchase committee does not speak about it.

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10. After hearing the counsel for the parties and considering the nature of allegation made in the F.I.R, this Court finds that a clear allegation has been made in the F.I.R that the machine concerned was shown to have been installed on 16.11.2005 and substantial payment was also made although the said machine did not reach India by that time. This Court further finds that the petitioner was clerk (Purchase) in the department and it cannot be said that the petitioner had no concern with the purchase department of the hospital. This Court also finds that an allegation of criminal conspiracy has been levelled against the accused persons and in such circumstances, this Court is of the considered view, that it cannot be said that ex facie no case is made against the petitioner. 11. The Hon’ble Supreme Court in the case reported in 1992 (Suppl.) (1) SCC 335 (supra) has held in para 102 as follows:

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“ 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which

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we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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

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provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(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.”

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12. Considering the nature of allegation levelled against the petitioner, this Court is of the considered view that the case of the petitioner neither falls under any of the categories mentioned in para 102 of the aforesaid judgment nor the learned counsel has been able to make out a case for quashing of entire criminal proceeding including the F.I.R on any other ground particularly where criminal conspiracy is alleged and investigation is not complete.

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13. In the judgment passed by Hon’ble Supreme Court reported in 2015 (2) JLJR (SC) 207 (Supra) , it has been held in para 9 and 16 as under:

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“9. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. Where, in the opinion of the Court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceeding even though it may be at a preliminary stage.

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16. Of course, in exercise of its jurisdiction under Section 482 Cr.P.C., the court should be extremely cautious to interfere with the investigation or trial of a criminal case and should not stall the investigation, save except when it is

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convinced beyond any manner of doubt that the FIR does not disclose commission of offence and that continuance of the criminal prosecution would amount to abuse of process of the court. As noted earlier, the page created by the traffic police on the Facebook was a forum for the public to put forth their grievances. In our considered view, the appellants might have posted the comment online under the bonafide belief that it was within the permissible limits. As discussed earlier, even going by the uncontroverted allegations in the F.I.R, in our view, none of the ingredients of the alleged offences are satisfied. We are of the view that in the facts and circumstances of the case, it would be unjust to allow the process of the court to be continued against the appellants and consequently the order of the High Court is liable to be set aside.”

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14. By applying the ratio of the aforesaid judgement, this Court is of the considered view that in the present case, it cannot be said that prima facie no case is made out against the petitioner or that the F.I.R does not disclose commission of an offence and that continuation of criminal prosecution would amount to abuse of the process of law considering the nature and seriousness of allegations involved in this case.

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15. Accordingly, the present case is hereby dismissed.

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16. Interim order, if any, stands vacated.

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17. if are Pending interlocutory applications, any,

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dismissed as not pressed.

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18. Let a copy of this order be communicated to the learned court below through FAX.

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(Anubha Rawat Choudhary, J.)