ORDER
A.K. Gohil, J.
1. These revision petitions, seven in number, filed on behalf of the various petitioner/accused persons, against the Order dated 28th March, 2000 passed by the learned Special Judge (under Corruption Act) and First Additional Sessions Judge, Shajapur, are heard analogously and being disposed of by a common order.
2. The petitioners have preferred these revision petitions under Section 397 of the Code of Criminal Procedure against the Order dated 28th March, 2000 passed in Special Case No. 1 of 1999 by the learned Special Judge (under Prevention of Corruption Act) and First Additional Sessions Judge, Shajapur by which charges have been framed against all 63 accused persons under Sections 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B of the IPC and in the alternative Sections 5(1)(d), 5(2) of the Prevention of Corruption Act read with Section 120B, IPC.
3. In these cases some public servants like Executive Engineers, Assistant Engineers, Sub-Engineers of the Irrigation Department and some of the Contractors are being prosecuted for accepting illegal gratification and dishonestly misused and misappropriated the Government property involved in corruption and also for cheating and dishonestly inducing delivery of property and also for doing an offence being a criminal misconduct with criminal conspiracy.
4. As per the prosecution case, as stated in the charge-sheet, is that in the year 1986-87 and 1987-88, District Shajapur was in the grip of draught and, therefore, in order to provide relief to the farmers and labourers, a plan was prepared to construct 138 Stopdams, Rs. 5.18 crores were sanctioned and the administrative sanction for this project was given by the then Collector, Shajapur and the technical sanction was granted by one Shri R.S. Agnihotri, the then Executive Engineer of the Irrigation Department, who is also accused No. 1 in this case. In the construction of 138 Stopdams there were purchases of Anchor Bars and Steel Shutters at a very high rate with the result that there was heavy loss to the Government to the tune of Rs. 1,42,03,411.50 Ps. The case was registered as Crime No. 26/1999 in the State Economic Offences Investigation Bureau, Bhopal and after investigation, charge-sheet has been filed against the then officers and Contractors who were involved in the execution of works including purchases, sanction of rates, its payments etc. As per the plan of the relief work, which was mainly based on labour component, the amount was to be spent on labour between 75 to 80% and remaining 20 to 25% was to be spent on material. In the purchase of material for the construction of these Stopdams, Anchor Bars were purchased @ Rs. 250/- per piece and Steel Shutters were purchased at the rate between Rs, 10,500/- to Rs. 13,180/- per piece, whereas the actual cost of Anchor Bars comes to Rs. 70.00 per Anchor. The total amount spent on purchases of Anchor Bars is Rs. 16.45 lacs, whereas as per the actual cost, the petitioners/accused persons have spent Rs. 11.84 lacs more on the purchases of these Anchor Bars. Likewise, Steel Shutters were purchased at the rate of Rs. 13,180/- per Shutter and on which Rs. 129.14 lacs were spent, whereas on the basis of the rate estimate the cost of per Steel Shutter comes to near about Rs. 2,000.00 and, therefore, these petitioners/accused persons have paid Rs. 109.97 lacs more on the purchases of these Steel Shutters. 10 % amount was spent towards the fixation charges of these Steel Shutters and total Rs. 12.96 lacs were spent on fixation charges, whereas as per the estimate, this hardly requires an expenditure of one lac rupees. Therefore, under a criminal conspiracy by all the accused persons they have spent Rs. 11.96 lacs more on the fixing of Steel Shutters and, therefore, as per the charge-sheet all these officers, including Executive Engineers, Assistant Engineers (Sub-Divisional Officers) and Sub-Engineers in conspiracy with the Contractors misused and misappropriated a sum of Rs. 518.99 lacs on the construction of 138 Stopdams at various places of the District. It was further found that out of the aforesaid sanctioned amount, only Rs. 132.35 lacs were spent on payment to the labourers and Rs. 400.18 lacs were spent on purchases of material and according to the analysis rate 24.90% amount was spent on payment of labour charges and 75.10% was spent on the purchase of material; whereas as per the scheme this was to be vice-versa.
5. During the course of the investigation, it was further found that for the purposes of execution of the works as many as 20 contractors were registered. For the registration of these Contractors, the prescribed rules were not followed. The registration of the Contractors was done on the basis of pick and choose. A daily wages worker, Marigilal s/o Puralal, who was working under the then Executive Engineer Accused No. 1 in the same Division, was also registered as a Contractor, whereas he was also receiving salary from the same Division. For all these purchases and also for registration of Contractors, prescribed rules were not followed, neither Purchase Committee was constituted nor the open tenders were invited. It was also found that for making these purchases rules known as Madhya Pradesh Purchase and Stores Rules were also not followed. Open tenders were also not invited. Various provisions of M.P.P.W.D. Manual (Madhya Pradesh Karya Vibhag Niyamavali, 1983) were also not followed. After investigating the matter, a detailed chart of rate analysis has also been prepared and enclosed with the charge-sheet which has been filed against all the accused persons. After making a thorough and detailed investigation and after obtaining the sanction from the State of Madhya Pradesh against the public servants, charge-sheet has been filed under Sections 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B, IPC and in the alternative Sections 5(1)(d), 5(2) of the Prevention of Corruption Act read with Section 120B, IPC. After filing of the charge-sheet, the learned special Judge by impugned Order dated 28th March, 2000 and after hearing all the parties, has framed charges against the accused persons, against which these revision petitions have been preferred.
6. I have heard learned counsel appearing for the petitioners/accused persons and also the learned Deputy Advocate General for the respondent-State and have perused the impugned order of framing of charges and record.
7. The submissions of learned counsel appearing for the Engineers are that against the Sub-Divisional Officers (Assistant Engineers) charge cannot be framed because they are not involved in the purchases of the material and they had no role to play either in the analysis of rates or in the purchases of material. Therefore, considering the material collected by the prosecution, they are not liable to be prosecuted and the charges have wrongly been framed against them. The further submission of the learned counsel for the petitioners appearing on behalf of these Assistant Engineers (Sub-Divisional Officers) is that only the then Executive Engineer of the department is responsible for all these purchases and not all the other Assistant Engineers or Sub Engineers and while framing the charge the Court has not properly evaluated the material documents on record. On the face value of those documents, they do not disclose the existence of any ingredients constituting the alleged offence against them and, therefore, charge has not been properly framed and they should be discharged at this stage.
8. In Criminal Revision No. 206 of 2000, the petitioner is a Divisional Accountant and it is submitted on his behalf that he had no role to play. The petitioner has already been retired 1.2 years back and there is no prima facie material against this petitioner. In Criminal Revision Nos. 252 and 259 of 2000, the learned counsel appearing on behalf of the Contractors submitted that in presence of competitive Contractors tenders were opened and after following the procedure Divisional Accountant had placed the tenders of the petitioners before the Divisional Purchase Committee and after approval by Purchase Committee, the tenders were accepted by the then Executive Engineer and thereafter works agreement were signed and supplies were made, as per the rates which were sanctioned and after checking the materials, bills were prepared and paid. The further submission of the learned counsel appearing for the Contractors is that whatever the irregularities or illegalities have been committed, they are committed by the concerned officers who are alone responsible for inviting tenders and for other acts. The Contractors had no role to play in the matter, they have not committed any offence as they had submitted their tenders, they were opened and accepted and thereafter on the supply order material was supplied. The further submission of the learned counsel for the Contractors is that the prosecution case is based on unreliable and inadequate evidence and the Contractors cannot be prosecuted and no charge can be framed against Them.
9. In reply the submission of Shri Girish Desai, learned Deputy Advocate General on behalf of the respondent-State is that while framing the charge, the Court is required to only evaluate the material supplied by the prosecution and the documents filed alongwith the charge-sheet under Section 173 of the Code of Criminal Procedure. The other material which is being placed by the parties in defence cannot be looked into at this stage. His further submission is that in this case huge Government money has been misutilised in conspiracy by the Contractors and the Engineers. The Engineers in conspiracy with Contractors have violated the various provisions and Government instructions. All were directly involved in the execution of work, neither the work has been executed as per the scheme nor the amount has been spent legally as per the procedure laid down. There is an established departmental procedure for making purchases, for registration of Contractors, for inviting tenders and for rate analysis and, therefore, as per the investigation, proper charge-sheet has been filed. All those officers who are the public servants have conspired with the contractors in the purchase of material and also in the execution of work, huge amount of money of the Government to the tune of Rs. 1,42,03,411.50 Ps. have been misused and misappropriated by corrupt means and, therefore, on the basis of the material, the charge has rightly been framed against officers and the Contractors and he prayed for dismissal of these revision petitions.
10. I have considered the arguments of both sides and have also gone through the impugned order passed by the trial Court for framing of charge and have also perused the charge-sheet and record.
11. It is the most important question at this stage which is to he decided and is to be seen, is what material is to be considered for framing of the charge by the trial Court ?
12. In the case of State of J & K v. Sudershan Chakkar, reported in AIR 1995 SC 1959, it has been held by the Apex Court that “the duty of the Court under Section 228 of the Code of Criminal Procedure at the time of framing of charge, is that in a case instituted upon a police report, the Court is required, at the time of framing of the charges, to confine its attention to documents referred to under Section 173 of the Code of Criminal Procedure only.
13. While framing of charge under Section 228 of the Code of Criminal Procedure, it is to he considered that there are two stages in the trial. The first stage is of framing of charge and thereafter the second stage of reporting a finding after appreciation of evidence as to the guilty or innocence of the accused and the distinction between the two stages is that at the former stage, i.e, the stage of framing of charge, even a strong suspicion founded upon material and a presumptive opinion would enable the Court in framing a charge against the accused persons but at the latter stage i.e, at the stage of recording of a finding as to the guilty or innocence, there is every presumption in favour of the innocence of the accused in the matter of determining his guilt and even in the matter of determining intention or knowledge assecting the gravity of the crime. Therefore, at the stage of framing of charge it is clear that it can be framed even on a strong suspicion founded on the material and a presumptive opinion is available on the record.
14. It is the settled position under Sections 227 and 228 of the Code of Criminal Procedure that at the first stage Court can evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence and the Court may for this limited purpose sift the evidence as it cannot be expected at that initial stage to accept all that the prosecution stage as gospel truth even if it is opposed to common sense or the broad probabilities of the case. In fact, this case has to be examined in the light of the propositions laid down by the Apex Court in various cases. Therefore, the test applied by the Court at the stage of discharge or framing of charge is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Where there is prima facie evidence the mater has to be put to trial even though the person charged of an offence might have a plausible defence. It has been explained by the Apex Court in case of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors., reported in AIR 1980 SC 52, that :–
“That the standard test, brief and judgment, which is to be applied finally before finding the accused guilty or otherwise, is exactly not to be applied at the stage of Section 227 or Section 228, Cr.P.C. At this stage, even a strong suspicion found on the material placed before the learned Magistrate, which leads him to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged may justify the framing of charges against accused in respect of the submission of that offence. Therefore, if there is strong suspicion, a Court has to frame a charge and it is not expected of the Court at this stage to appreciate the evidence and discharge the accused.”
15. It has been further held in the case of Radhey Shyam v. Kunj Behari and Ors., reported in AIR 1990 SC 121, that, “at the stage of framing of charges meticulous consideration of evidence and materials by Court is not required”. Therefore, in sum and substance while framing the charges against the accused from the materials on record, the Court should see that there is a prima facie case against the accused. The test to determine a prima facie case would naturally depend upon the facts of each case. Where the material placed before the Court disclosed grave suspicion against the accused which had not been properly explained, the Court would be fully justified in framing a charge and proceeding with the trial.
16. It is also true that the stage of framing of charge cannot be said to be a former stage where charge should be framed blankly or formerly without considering the material on record because framing of charge affects a person’s liberty substantially. Therefore, at this stage the material on record must satisfy the mind of the Court, framing the charge that the commission of offence by the accused in question was probable.
17. In case of R.S. Nayak v. A.R. Antulay, reported in 1986 SCC (Cr.) 256, it has been held by the Apex Court that, “When the Court is called upon to consider whether a charge should be framed or not the question to which the Court has to address itself is whether the evidence led on behalf of the accused and the Court has, therefore, to examine the evidence as it stands without rebuttal and come to a conclusion whether on the basis of such evidence the Court would convict the accused”. It has been further held in this case that, “Since the learned Magistrate has formed the opinion that there were grounds to presume that the accused had committed the offence and since it cannot be said that the prosecution was false, frivolous or vexatious or one which was by way of abuse of the process of law, the High Court should not have quashed the charge in exercise of the revisional and reference powers”.
18. In case of State of U.P. v. Manmohan, reported in 1986 SCC 212 = AIR 1986 SC 1652, it has been held that, “Since the learned Magistrate has formed the opinion that there were grounds to presume that the accused had committed the offence and since it cannot be said that the prosecution was false, frivolous or vexatious or one which was by way of abuse of the process of law, the High Court should not have quashed the charge in exercise of the revisional and reference powers”.
19. It has been further held in case of Mohd. Akbar Dar v. State of J & K, reported in 1982 SCC (Cr.) 148, that, “It is true that the High Court has not gone into the details or the pros and cons of the matter. This was obviously because that is not the stage when the Court could enter into meticulous consideration of the evidence and materials. The High Court has clearly observed that after perusing the statement of the witnesses recorded under Section 161, it was unable to find that the charges could be said to be groundless”.
20. In case of Rattan Lal v. State of Rajasthan, reported in AIR 1980 SC 84, it has been held that, “All this stage the High Court was wrong to go into the question of initial dishonest intention. It was for the Magistrate to go into the question whether there was a prima facie case to frame a charge and High Court should not have practically usurped the function of the Magistrate while considering the question of framing of charge”.
21. Recently in the case of State of M.P. v. S.B. Johari and Ors., reported in 2000 (3) MPHT 164 = AIR 2000 SC 665, the Apex Court has again reiterated the settled position under the law about framing of charge and it has been held that–
“It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed.”
22. After considering the aforesaid case law and the material placed before the Court and the documents and charge-sheet, in my view the exercise of appreciating the materials produced by the prosecution at the stage of framing of charge is wholly unjustified. At this stage the case is not before me as to whether accused is guilty or not. In a case of charge under Section 120B, IPC for allegations of criminal conspiracy, it is only from the available circumstantial evidence an inference of conspiracy is to be drawn. What is to be seen at this stage is that there should be a strong suspicion found on the material placed before the learned Magistrate and it should lead for him a presumptive opinion as to the existence of factual ingredients constituting the offence. After going through the charge-sheet and the statements recorded under Section 161 and the documents collected by the prosecution, it is prima facie clear that on the basis of the aforesaid material there is a prima facie case against all the accused persons/petitioners for framing of charge under Section 120B, IPC read with Sections 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988. The facts on record taken at their face value, according to me disclose the existence of ingredients constituting the alleged offence under the aforesaid Sections. Therefore, in view of the settled law and under various judgments of the Apex Court, the aforesaid material is not required to be considered meticulously nor the documents.
23. To consider the case of the petitioners in the light of the aforesaid case law, it is clear that all the Engineers, Assistant Engineers (S.D.O. and Sub Engineers) were involved in the execution of the work. Their duties are assigned in the P.W.D. Manual. They were fully involved in the execution of the work. It was their duty to protect the interests of the State while sanctioning, purchasing the materials, analysing the cost and all other various stages of the construction activities to protect the interests of the State Government as well as the Government money. In a case of Government money, so far as the question of Engineers are concerned, no doubt they are the public servants and if they are involved in any criminal misconduct under Sub-clause (2) of Section 13 read with Section 120B, IPC, this would amount to a prima facie case against them. Preparation of false documents and false checking of the documents are also part of the criminal misconduct. Therefore, prima facie material on record is available against all the Engineers who were involved in the execution of works for their involvement in the commission of an offence. So far as the case of Contractors is concerned for constituting a criminal conspiracy under Section 120B, IPC, prima facie sufficient material is available against them on record to come to a conclusion that there is a strong suspicion of their involvement in the commission of offence. Therefore, considering the aforesaid material, I do not find a case for interference at the stage of framing of charge by the Court.
24. Considering the submissions, charge-sheet and the allegations against all the petitioners/accused persons and the attending circumstances under which the offence is committed by the accused persons, prima facie documents are available for framing of charge and rightly so it was also not proper for the trial Court at this stage to scrutinise meticulously the materials on record of the case as this is required to be done at the conclusion of the trial.
25. In view of the above, I do not see any ground for interference in these revisions filed by the Engineers and Contractors for quashing of charge and accordingly the same are dismissed.
26. Retain this order in the record of Criminal Revision No. 205 of 2000 and place its copy each in the record of connected Criminal Revisions, as particularised above, for ready reference.
