M/s. Nav Nirman Builders vs State of Jharkhand

Heard Mr. Jitendra Singh, learned senior counsel for the petitioners and Mr. Rajiv Nandan Prasad, learned counsel appearing for the CBI.

In this application, the petitioners have prayed for quashing of the order dated 05.04.2018 passed by the learned Additional Judicial Commissioner

XVII cum Special Judge, CBI, Ranchi in R.C. 20(A)/2009-R whereby and wherein charges have been framed against the petitioners and others for

the offences punishable under Sections 120(B) of the I.P.C. read with Sections 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988.

It has been stated by the learned senior counsel for the petitioners that the learned trial court had acted in haste while framing charge against the

petitioners and ignoring the discharge application preferred on behalf of the petitioners. Learned senior counsel submits that the order-sheet would

reveal that the case was pending for hearing on the application preferred by co-accused Arun Kumar Singh for supply of deficit police papers under

Section 207 of Cr.P.C., but without there being any prior indication, charge has abruptly been framed on 05.04.2018 by the learned trial court to which

the petitioners are aggrieved. Learned senior counsel also submits that acting on a premonition, a discharge application was preferred by the

petitioners which however was ordered to be kept on record and the same was virtually made redundant on account of the charge having been

framed on 05.04.2018 itself by stifling the plea of the petitioners with respect to discharging them from the prosecution case as the petitioners claim

that the CBI has failed to collect materials which would indicate the presence of any criminality on the part of the petitioners. Learned senior counsel

also adds that while framing charge, the sufficiency of evidence has not been properly evaluated by the learned trial court and in a routine manner

charge has been framed against the petitioners and the same deserves to be quashed and set aside by giving a opportunity to the petitioners to

consider his plea with respect to his discharge application preferred by him.

Mr. Rajiv Nandan Prasad, learned counsel appearing for the CBI has vehemently opposed the prayer made by the petitioners and has stated that

the petitioners and the other accused persons on one pretext or the other were filing applications for delaying the disposal of the trial. It has been

stated that pursuant to the order passed in W.P.(Cr.) No. 62 of 2016, co-accused Arun Kumar Singh was provided with deficit police papers and in

spite of the same with a lingering attitude, a petition was filed by Arun Kumar Singh which was rightly rejected by the learned trial court and at the

same time had framed charge against all the accused persons including the petitioners. Learned counsel further submits that the materials collected in

course of investigation indicate that more than a prima-facie case is in existence against the petitioners and the other accused persons and therefore, it

cannot be concluded that the materials have not been properly appreciated or evaluated before framing charge under Sections 120(B) of the I.P.C.

read with Sections 13(2) and 13(1)(d) of Prevention of Corruption Act.

On consideration of the arguments advanced on behalf of the learned counsel for the respective parties, the records have been perused.

In compliance to the order passed by the Jharkhand High Court in W.P.(P.I.L.) No. 803 of 2009, a preliminary inquiry was conducted into the

allegations of large scale irregularities having been committed by the engineers of the Road Construction Department, Contractors and other persons

in the procurement of bitumen for construction of road in the State of Jharkhand. It has been alleged that the then Executive Engineer, RCD, Chaibasa

during the period 2006-07 entered into a criminal conspiracy with the firm (petitioner no. 1) and pursuant thereto petitioner no. 1 had submitted false

invoices showing procurement of bitumen for execution of the contract awarded to it causing wrongful gain to the contractor and a corresponding

wrongful loss to the Government of Jharkhand. It has further been alleged that M/s. Nav Nirman Builders (petitioner no. 1) which was awarded the

contract for special repair work of certain parts of the Seraikella â€" Kharsawan road and Chaibasa bypass road had submitted 37 invoices showing

procurement of bitumen purportedly issued by the Telco Nagar depot of Indian Oil Corporation and out of the 37 invoices so submitted, 6 invoices

were found not be have been issued by the IOCL depot and hence were detected to be false and fabricated. It has been alleged that the Executive

Engineer, RCD, Chaibasa in spite of 6 false invoices submitted by the petitioner no. 1 had certified the bills of the contractor on the basis of which

payment of Rs. 79,68,966/- was received by the said contractor. After investigation, CBI has submitted charge-sheet pursuant to which cognizance

was taken under Sections 120(B) of the I.P.C. read with Sections 13(2) and 13(1)(d) of Prevention of Corruption Act.

Although, learned senior counsel for the petitioners has also referred to the merits of the case in order to suggest that there was no omission or

commission on the part of the petitioners, but in view of the order which is being passed, no observation is being made touching upon the merits of the

case.

One of the co-accused Arun Kumar Singh had preferred an application before the learned court below for a direction to supply the deficit police

papers as it was submitted by him that the provisions of Section 207 Cr.P.C. had not been fully complied with. The application preferred by the co-

accused Arun Kumar Singh was rejected by the learned trial court and the said order was challenged in W.P.(Cr.) No. 62 of 2016. This Court vide

judgment dated 22.08.2016 had disposed of W.P.(Cr.) No. 62 of 2016 by holding as follows:

“In the instant case, prayer to supply the deficit documents has been made by the petitioner before the Special Court at a very early stage of

proceeding and even charges have not been framed. Non-supply of deficit documents, as prayed by the defence would certainly curtail the right of the

petitioner for fair trial, as enshrined under Article 19 and 21 of the Constitution of India. It is not a case that C.B.I. has not filed those required

documents with police paper rather the petitioner is demanding certain documents which are part of police paper. The petitioner can not be denied his

access to the documents merely because C.B.I. has decided not to rely on those document or the C.B.I. does not consider those documents relevant.

It is immaterial whether those documents shall be relied upon by C.B.I. or not, in the interest of fair justice and trial, such documents should also be

disclosed to the accused giving him a chance of fair defence. It is the duty of the court to ensure that the accused should not be deprived of just, fair

and transparent trial.

In view of the discussions made above, the order impugned passed by the Additional Judicial Commissioner XVII cum Special Judge, C.B.I.

Ranchi is, hereby, quashed. Consequently, this writ application is allowed with a direction to the court concerned to supply all the deficit documents to

the petitioner-accused, which have been prayed by him in different applications, as mentioned in the order impugned to establish his defence.â€​

The co-accused Arun Kumar Singh had thereafter filed another application with a prayer for a direction upon the CBI to supply deficit police

papers and vide order dated 18.02.2017, it was directed to be listed on 18.03.2017 for the purposes of rejoinder to be submitted by the CBI. The said

application was kept pending and no order was passed for several months and on 16.03.2018, the learned trial court had directed all the accused

persons to appear physically on 05.04.2018 and the matter was directed to be listed on 05.04.2018 for hearing. On 05.04.2018, the application

preferred by co-accused Arun Kumar Singh was considered and it was held that the deficit police papers were already supplied on 17.11.2016 and

05.01.2017 and therefore such application was rejected, however, in the same order charges were framed against the accused persons including the

petitioners under Sections 120(B) of the I.P.C. read with Sections 13(2) and 13(1)(d) of Prevention of Corruption Act. It is pertinent to mention herein

that perhaps sensing that charges may be framed application for discharge had been preferred by the petitioners which was ordered to be registered

and was directed to be put up on 25.04.2018 for hearing.

The sequence of events which has been narrated in the preceding paragraphs would no doubt reveal that the learned trial court was in a haste

while straightway framing charges against the petitioners and others in spite of filing of the discharge application preferred by the petitioners and

without giving an opportunity to the petitioners to claim  innocence prior to the initiation of the trial. The order framing charge dated 05.04.2018 does

not at all reveal that the materials have been properly considered and evaluated before coming to a conclusion about the existence of more than a

prima-facie case against the petitioners.

In the case of “State of Karnataka Vs. Muniswamy†reported in (1977) 2 SCC 699, while enumerating the duties of the trial court at the time

of framing of charge, it was held as follows:

“On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar [AIR 1960 SC 1113 :

1960 Cri LJ 1499 : 62 Bom LR 915] and Century Spinning & Manufacturing Co. v. State of Maharashra [AIR 1972 SC 545 : 1972 Cri LJ 3291972

SCC (Cri) 495] show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether

or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge

affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the

charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal case, Section 203 of the

old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the

section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 327 of the new Code contains an analogous

power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the

Magistrate was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to

form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the

court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if

unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.â€​

In the case of “Sheoraj Singh Ahlawat and Others Vs. State of U.P. & Anr.†reported in (2013) 11 SCC 476, the guidelines which covers an

application for discharge as held in the case of “Union of India Vs. Prafulla Kumar Samal†reported in (1979) 3 SCC 4 was quoted and the same

reads as under:

“To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] where this

Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:

(SCC p. 9, para 10)

“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be

fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal

application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise

to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot

act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence

and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge

should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.â€​

The aforesaid judicial pronouncements would therefore mean that although the probative value of the materials on record is not be delved upon

with depth by the learned trial court, but at the same time it has to evaluate the materials to come to a conclusion as to whether the same would be

justified for framing of charges against the accused. The right of the petitioners to claim innocence prior to framing of charge has been sought to be

stifled on account of the fact that the discharge application preferred by the petitioners was never considered prior to framing of charge. Even if it is

assumed that the discharge application was not preferred prior to hearing on the point of supply of deficit police papers to the co-accused Arun Kumar

Singh, in such a scenario also the learned trial court should have given an opportunity by fixing a date for framing of charge which if an accused so

desired could have led to filing of discharge application during the intervening period. The order dated 16.03.2018 had merely directed the accused

persons to remain physically present and the tenor of the order would indicate that it was only for consideration of the application preferred by co-

accused Arun Kumar Singh for supply of deficit police papers and not for the purpose of framing of charge against the accused.

Viewed thus in the background of the findings and reasoning narrated in the aforesaid paragraphs, this Court comes to a conclusion that the order

dated 05.04.2018 so far as framing of charge against the petitioners is concerned, was exercised in haste and on non-consideration of the discharge

application preferred by the petitioners and therefore, that part of the impugned order dated 05.04.2018 passed by the learned Additional Judicial

Commissioner XVII cum Special Judge, CBI, Ranchi in R.C. 20(A)/2009-R by which charge has been framed against the petitioners is hereby

quashed and set aside with a further direction to the learned trial court to hear on the discharge application preferred by the petitioners in accordance

with law.

This application stands disposed of