Brahmdeo Choudhary & Anr vs State Of Jharkhand & Anr on 25 June, 2010

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               IN THE HIGH COURT OF JHARKHAND AT RANCHI.
                              Cr. M.P. No. 716 of 2009
                                             ...
              Kapildeo Singh                                    ...      ...      Petitioner
                                     -V e r s u s-
              The State of Jharkhand & another                  ...      ...      Opposite Parties
                                             ...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
                                             ...
              For the Petitioner     : - Mr. Binod Kumar, Advocate
              For the State          : - A.P.P.
                                             ...
4/ 25.06.2010

This application under Section 482 of the Code of Criminal Procedure
has been filed by the petitioner praying for quashing the entire criminal
proceeding pending against him before the court below, arising out of FIR vide
Khunti P.S. Case No. 62 of 1998 corresponding to G.R. No. 333 of 1998,
registered for the offences under Sections 420, 467, 468 and 471 of the Indian
Penal Code.

2. The petitioner has challenged the continuation of the proceeding on the
following grounds :-

(i) That the very cognizance of the offence against the petitioner is
bad in law and has been passed without application of judicial
mind.

(ii) That for the same charge and on the same allegations, a
departmental proceeding was initiated against the petitioner in
which, after thorough enquiry, the Enquiry Officer has found that
the charge is not proved against the petitioner and therefore had
exonerated the petitioner from the charge.

(iii) That the investigation of the case which was registered way back
on 13.08.1998, did not conclude even after more than 12 years
infringing thereby the fundamental right of the petitioner for
speedy investigation and trial.

3. Elaborating his arguments, learned counsel for the petitioner would read
out the contents of the FIR and explain that as per the FIR, it is alleged that the
petitioner in his capacity of Executive Engineer, had knowingly accepted forged
Bank Guarantees from the co-accused contractor and on the basis of such Bank
Guarantees, the contractor had managed not only to obtain the contract job but
also to withdraw substantial amount of money.

Learned counsel explains that while the petitioner was posted as the
Executive Engineer at Khunti, a tender was invited by the Chief Engineer,
Minor Irrigation, Ranchi vide No. 04/95-96 of Package No. 5. The estimated
value of the tender was Rs. 84.25 lakhs. The bid security was in the shape of
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Bank Guarantee to be valid for 45 days beyond the validity of bid as specified in
the bidding document. The tender was finalized in the name of M/s. Uma
Engineering Company. The contractor, who submitted bid security worth Rs.
1.65 lakhs in the shape of Bank Guarantees to the Chief Engineer, Minor
Irrigation, Ranchi, was directed by the Chief Engineer to contact the Executive
Engineer, Minor Irrigation Division, Khunti for signing an agreement, after
furnishing the performance security worth Rs. 6,82,177/- in the shape of Bank
Guarantee as per the condition in the tender document.

Learned counsel adds further that on submission of the Bank Guarantee
by the contractor, the petitioner had forwarded the same to the Canara Bank to
which the Bank Guarantee was drawn and only after being informed by the
Bank that the Bank Guarantee was genuine, did the petitioner proceed to execute
an agreement with the contractor as per the authority vested in him.
Subsequently, the contractor sought for replacement of the Bank Guarantee by
fresh similar Bank Guarantees and on each occasion the petitioner had obtained
the certificate of the Bank regarding the genuineness of the Bank Guarantees. It
was only after verification of the Bank Guarantee and being informed of the
same being genuine, did the petitioner direct the Assistant Engineer to prepare
the bill for mobilization advance in favour of the contractor and till June 1997
while the petitioner was posted at the station, the contractor could draw the
amount of 60% of the work completed. Later, in July, 1997 the petitioner was
transferred from the post of Executive Engineer, Minor Irrigation, Khunti to
Mohania Tubewell Division and in course of time he retired from service in
1999.

Learned counsel explains further that the aforesaid entire facts and
circumstances including the certificates issued by the concerned bank
confirming the genuineness of the Bank Guarantees supplied by the contractor,
were considered by the Enquiry Officer in the departmental proceeding initiated
against the petitioner and only after being thoroughly satisfied that the petitioner
was in no way at fault, did the Enquiry Officer record his finding that the charge
of conniving with the contractor in the submission of the fake and forged Bank
Guarantees was not proved against him. The finding of the Enquiry Officer was
accepted by the disciplinary authority of the petitioner and no further action was
therefore taken against the petitioner.

Learned counsel adds further that even otherwise, the allegation that the
petitioner had connived with the contractor in submission of the fake Bank
Guarantees is a vague and omnibus statement without considering the fact that
the bank on which the Bank Guarantees were drawn, had issued certificates
confirming that the Bank Guarantees were genuine. Learned counsel adds that
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under such circumstances, the petitioner cannot be accused of having connived
with the contractor in the matter of submission of any fake Bank Guarantee.

Learned counsel adds that furthermore, the fact that though the case was
instituted way back in 1998 and yet, investigation could not be concluded
beyond more than 12 years prior to the date of filing the instant criminal
miscellaneous petition, in itself, would confirm that the petitioner’s available
constitutional right of speedy investigation and trial has been infringed.

To buttress his arguments, learned counsel refers to and relies upon a
judgement of the Supreme Court in the case of Pankaj Kumar Vs. State of
Maharashtra & Others AIR 2008 S.C. 3077.

4. Learned counsel for the State argues that the grounds advanced by the
petitioner relating to the facts of the case are such as could possibly be
appreciated only by the trial court because the same happen to be the grounds of
defence taken by the petitioner against the charge for which he is sought to be
prosecuted. Learned counsel however concedes that as per instructions received,
though the investigation had commenced after institution of the case in
February, 1998, but the investigation could not conclude even after more than 12
years and it was recently n 01.06.2010, that the investigation was concluded and
charge-sheet submitted.

5. I have heard counsel for the parties and have also gone through the
materials available on record and I find force in the arguments advanced on
behalf of the petitioner for the following reasons :-

(i) Admittedly, on the same charge, a departmental proceeding was
conducted against the petitioner. The charge against the petitioner
in the departmental proceeding was that he had connived with the
contractor in the matter of submission of fake Bank Guarantees.

(ii) On the same nature of allegations, the present case was registered
in which cognizance was taken for the offences under Sections
420, 467, 468, 471 and 120-B of the Indian Penal Code besides
the offence under the Prevention of Corruption Act, primarily
against the contractor and also against the petitioner and others.

(iii) Admittedly, at the departmental enquiry, the petitioner could
establish that in the matter of submission of purported fake Bank
Guarantees by the contractor, there was no connivance on his part
and he had merely acted in his official capacity not only as per
direction of his superior in office, but after being satisfied upon
the certificates issued by the bank about the genuineness of the
Bank Guarantees furnished by the contractor. There is no
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allegation that the petitioner had derived or made any wrongful
gain for himself.

6. In the light of such facts, there appears no sufficient material to
constitute the ingredients of any offence for which cognizance was taken by the
court below against the petitioner.

7. Even otherwise, the admitted fact is that the investigation which had
commenced in February, 1998, did not conclude even after more than 12 years.

8. An identical issue came up for consideration before the Supreme Court
in the case of Pankaj Kumar (Supra). The facts in the case of Pankaj Kumar
indicated that after institution of the case against the writ petitioner therein, the
investigation did not conclude even after eight years of the commencement of
the investigation. Referring to an earlier judgement of the Supreme Court in the
case of Santosh Deo Vs. Archna Guha & Ors. 1994 AIR SCW 1480 and on an
another judgement of the Supreme Court in the case of Som Mittal Vs.
Government of Karnataka 2008 AIR SCW 1640 and also on a much earlier
judgement in the case of Maneka Gandhi Vs. Union of India & Anr. AIR 1978
S.C. 597, the Supreme Court has held in the following terms :-

“Tested on the touchstone of the broad principles,
enumerated above, we are of the opinion that in the instant case,
appellant’s constitutional right recognised under Article 21 of the
Constitution stands violated.”

The Court has further made the following observations :-

“The lackadaisical manner of investigation spread over
for a period of four years in a case of this type and inordinate
delay of over eight years, is manifestly clear. Thus, on facts in
hand, we are convinced that the appellant has been denied his
valuable constitutional right to a speedy investigation and trial
and , therefore, criminal proceedings initiated against him in the
year 1987 and pending in the court of Special Judge, Latur,
deserve to be quashed on this short ground alone.”

7. The facts of the present case are almost identical as in the case of Pankaj
Kumar (Supra).

8. As observed above, the investigation of this case which was commenced
in February, 1998, did not conclude even after 12 years and it was only recently
that the charge-sheet was submitted. No reason has been explained as to why the
investigation could not conclude within a reasonable time. The observation as
made by the Apex Court in the case of Pankaj Kumar (Supra) regarding the
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lackadaisical manner of investigation, does apply in the facts of the present case
also.

9. In the light of the above facts and circumstances, I find force in the
arguments advanced by the counsel for the petitioner. Accordingly, this
application is allowed. The entire criminal proceeding pending against the
petitioner before the court below which was initiated pursuant to the institution
of the case vide Khunti P.S. Case No. 62 of 1998 corresponding to G.R. No. 333
of 1998, is hereby quashed

(D.G.R. Patnaik, J.)
Birendra/