Gursharan Singh vs State of Punjab

Nirmaljit Kaur, J.—Crl. Misc. Nos. M-53564 of 2007, Crl. Misc. No. M-54346 of 2007, Crl. Misc. No. M-54347 of 2007, Crl. Misc. No. M-54348 of 2007, Crl. Misc. No. M-55071 of 2007, Crl. Misc. No. M-55121 of 2007, Crl. Misc. No. M-54719 of 2007, Crl. Misc. No. M-6794 of 2008, Crl. Misc. No. M-6795 of 2008 and Crl. Misc. No. M-5890 of 2010 shall stand disposed of by this common order as all the petitions were ordered to be heard together on 19.03.2008. Reply filed by the State, in the present petition, was considered to be reply in all the petitions, as all the petitions arise out of the same FIR. For the sake of convenience, the facts are being taken from Crl. Misc. No. M-53564 of 2007.

These are petitions u/s 482 Code of Criminal Procedure for quashing the FIR No. 55 dated 28.04.2000 under Sections 409, 420, 467, 468, 471 and 120-B IPC read with Section 13(1)(2) 88 of the Prevention of Corruption Act registered at Police Station Nawanshahr and all subsequent proceedings arising thereto including the report u/s 173 Code of Criminal Procedure dated 23.03.2007 (Annexure P-9).

Balraj Singh and A.P. Punj, who are complainants, were once posted at the same place as the Petitioners. Both were working as Junior Engineer in the Irrigation Department, Punjab. They submitted their affidavit, stating therein, that they had completed the works before 30.06.1999 in their respective sections. The S.D.O. Joginder Singh prepared bills in respect of the work done made by Gursharan Singh and Nirmal Singh, Jes, much above the actual costs and bogus estimates were prepared. The S.D.O along with J.Es., as mentioned in the affidavit, had raised bills and made payments to the contractors, namely, Soondh Co-operative Society and C. Society, which belongs to the family of SDO Joginder Singh Mann and that their entire action was fraudulent. It was further alleged that these complainants further refused to make Bills much above the actual costs as directed by the said S.D.O. On the basis of this affidavit, FIR, in question, was registered at Police Station Nawanshahr.

The Petitioners filed Crl. Misc. No. 23093-M of 2000 praying for quashing of the above mentioned FIR. The same was allowed by the Single Bench of this Court vide Order dated 11.05.2001. The complainants Balraj Singh and another challenged the same before the Hon''ble Supreme Court. Hon''ble the Supreme Court, vide order and judgment dated 29.08.2002, set aside the order of the learned Single Bench by giving opportunity to the Investigating Agency to proceed with the investigation. Thereafter the challan was filed on 21.03.2007. After filing of the challan, the Petitioners, once again, have filed these petitions praying for quashing of the FIR, as well as, the challan. While praying for quashing of the FIR and the challan, Mr. T.S. Sangha, Senior Advocate raised two fold arguments:

(i) That no fresh material was collected by the Investigating Agency to induct the Petitioner in the criminal case. Reference was made to the report dated 01.11.2006 (Annexure P-8) which is a communication from Technical Commentator-cum-Superintending Engineer, Ferozepur Drainage Circle, Ferozepur to the Chief Engineer (Drainage), Irrigation Works, Punjab, Chandigarh, in context to the present FIR, which is a response to a letter asking him for comments on the Police Report, S.E. ADC, Amritsar and Chief Engineer and Vigilance Report relating to the matter of embezzlement during the year 1999-2000, which was a subject matter of FIR. The said Technical commentator-cum-Superintending Engineer, Ferozepur Drainage Circle, Ferozepur stated to have gone through the report and submitted his comments that there was no serious irregularity of any nature and the result of investigation is unfounded, incomplete and not a result of thorough investigation. It was further commented that there was no deficiency in execution of work.

(ii) There were so many glaring discrepancies in the challan, which are against the facts of the present case and go a long way to proof the case of the Petitioner and make a reasonable ground for interference at this stage to quash the proceedings.

Learned Counsel for the Respondent-State, however, vehemently opposed the present petition and pointed out that the challan was filed after thorough investigation and as many as, 71 witnesses were examined. Almost 2/3rd of the total estimated amount was misappropriated. Moreover, the alleged Technical Report has been obtained in the year 2006, whereas, the allegation and the work relates to the year 1997-98 and the said report has no authenticity as the same has been obtained by the Department only to save its own people. The order dated 29.08.2002, passed by Hon''ble the Supreme Court, has also been brought to the notice of this Court, wherein, a specific direction was issued to the Investigating Authority to proceed with the investigation in the present FIR.

Heard.

It is admitted that the Petitioners had earlier filed Crl. Misc. No. 23093-M of 2000 praying for quashing of the FIR. The said FIR was quashed by the learned Single Bench of this Court vide order dated 11.05.2001. In appeal, the order dated 11.05.2001 was set aside by the Hon''ble Supreme Court vide its order dated 29.08.2002 by observing as under:

This appeal is directed against an order of the learned Single Judge of Punjab and Haryana High Court, who, on an application being filed u/s 482 Code of Criminal Procedure by the accused persons, has quashed the FIR. The FIR dated 28.4.2000 related to the offences under Sections 409, 420, 467 and 468 IPC. The informants are the Junior Engineers and the accused are also Junior Engineers. On the threshold, the High Court by an Elaborate discussion of the materials available, recorded a finding that the deep rooted animosity of the informants is the root cause of initiation of the criminal case. The High Court also further came to hold that the criminal case is not being continued in pursuance of any honest zeal to bring the so-called culprits to book and, on the other hand, the proceedings are the outcome of an oblique motive.

To say the least, the High Court exceeded its jurisdiction in recording the aforesaid conclusion and thereby quashing the FIR. Repeatedly, this Court has held and indicated the parameters under which the power Section 482 Code of Criminal Procedure can be exercised. Where the FIR does not constitute any offence, it may be permissible to quash the same. But, where the FIR constitutes the offence, it would not be appropriate for the court to throttle investigation by elaborate reasoning''s on the merits of the case. Even reasonings in the case in hand appear to us to be wholly unsustainable. The court at this stage is entitled to shift the materials to come to conclusion of any oblique motive.

In the aforesaid circumstances, we quash the impugned order of the High Court and direct the investigating authority to proceed with the investigation. The appeal accordingly stands disposed of.

Needless to mention, the investigation authority will not be swayed away in any manner by the observations of this Court.

The present petition has been filed after filing of the challan. The first argument raised by learned Counsel for the Petitioner that the Investigating Agency has not taken into consideration the report dated 01.11.2006 (Annexure P-8), has no merit, in as much as, the allegations in the FIR, are as under:

That the S.D.O. Joginder Singh got the bills and estimate in respect of the above said works made by Gursharan Singh and Nirmal Singh JEs much above the actual costs and estimates prepared bogus. It is further stated that no expenses are incurred on the work at R.D. 122750 but the SDO along with the J.Es., have raised Bills and made payments to his contractors Soondh Co-operative L. and C. Society. It is submitted that the above society belongs to the SDO Joginder Singh Mann.

Whereas, the technical report (Annexure P-8) only talks of the works being in sound and good condition which sustained the flood season and reads;

By examining all the three above reports, no Enquiry Officer pointed out any deficiency in execution of works rather found that the works are still in sound condition showing effectiveness achieved and in good condition even after passing flood season of 1999. Superintending Engineer, drainage circle, Jalandhar has commented on works vide his report dated 29.11.1999.

The said technical report further concluded;

In view of above discussion, it is opined that no serious irregularity of any nature is technically established while executing the works.

A perusal of the above report clearly shows that the same in no way gives clean chit to the Petitioners qua the allegation of inflated bills and embezzled amount. The report is an opinion on the quality of the work, whereas, there is no allegation in the FIR qua the quality of the work. The same cannot be considered a finding on the allegations qua embezzlement and inflated bills. Even otherwise, reliance placed by the Petitioner on the said technical report is their defence to be taken at the appropriate stage and the said technical report which is rather an opinion on the quality of their work, cannot be made the basis of quashing of present FIR under Sections 409, 420, 467, 468, 471 and 120-B IPC read with Section 13(1)(2) 88 of the Prevention of Corruption Act, in which, the allegations relate to submitting of inflated bills and embezzlement. Moreover, the said report was obtained after the investigation was almost complete by the Department and also for reasons best known to the department.

The argument that no fresh evidence was collected, also has no merit as the learned Counsel for the Respondent-State has pointed out that as many as 71 witnesses have been examined before filing of the challan.

Hon''ble the Supreme Court in the case of State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, while relying on the judgment of R.P. Kapur Vs. The State of Punjab, , observed the category of cases, in which, the inherent power should be exercised to quash the proceedings. Para 9 of the same reads as under:

In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

Thus, needless to say, that none of the three grounds are available in the facts of the present case.

Even as per the judgment rendered in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , a note of caution was added that the power should be exercised sparingly and that too in the rarest of rare cases and inherent powers should not be exercised to stifle a legitimate prosecution.

Applying the test and the legal position as laid down in the cases of State of M.P. (supra), as well as, State of Haryana (supra), the case, in hand, does not fall in any of the exceptions, as well as the expression "rarest of rare cases" wherein the FIR can be quashed while exercising power u/s 482 Code of Criminal Procedure.

Dismissed accordingly.

A photocopy of this order be placed on the files of other connected cases.