Shankar Paswan vs State of Jharkhand

Heard the parties through video conferencing.

This Cr.M.P. has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the

F.I.R. registered by A.C.B. as A.C.B. Dumka P.S. Case No.06 of 2019 as well as the letter No.1233 dated 13.08.2019 issued by Vigilance

Department, Government of Jharkhand by which the sanction for registration of F.I.R. was granted and to quash the entire proceedings against the

petitioner on the basis of the said F.I.R.

Learned counsel for the petitioner submits that the allegation against the petitioner is that the petitioner has misappropriated Government money by

cancelling the agreement and re-tendering the same. It is also alleged that the contractor who is the co-accused, had deposited Rs.3,35,000/- in the

joint account of the petitioner and his wife namely Indu Devi as bribe amount towards release of the amount of Rs. 30,00,000/- to the co-accused

contractor, who was entrusted the work of Godda District Rural Water Scheme at Pathargama with an estimated cost of Rs.2,96,29,400/-, village

water supply project in Basantrai in Godda District with an estimated cost of Rs.66,95,300/- and Mahagama water supply project with an estimated

cost of Rs.4,58,70,000/- though the co-accused contractor did not complete the work. It is also alleged that as the co-accused contractor did not

complete the work within the stipulated time of two years in Mahagama water supply project, the petitioner extended the period of work but the co-

accused contractor did not complete the work even within the extended period. Even after reminder being given by the Executive Engineer, Drinking

Water and Sanitation Department, Godda, the co-accused contractor did not complete the work. Later on it was found that Rs.30,00,000/- was to Cr.

M.P. No.4340 of 2019 be paid to the co-accused contractor with respect to Pathargama Water Supply Project and the co-accused contractor- Sanjiv

Kumar was repeatedly requesting the petitioner for payment of the same. The petitioner recommended for the payment of the said amount to the co-

accused contractor and the petitioner also requested for allotment of Rs.30,00,000/- to be paid to the co-accused contractor- Sanjiv Kumar. During the

verification it became crystal clear that for receiving the payment of Rs.30,00,000/- by the co-accused, the petitioner made the co-accused to deposit

Rs.3,35,000/- on 02.08.2011 in the joint account with the petitioner and his wife namely Indu Devi in S.B.I. Dumaria Branch and the said amount was

the bribe amount. After intense verification and collection of evidence, the F.I.R. has been lodged after taking the sanction for lodging the F.I.R. by

the competent authority being the Government of Jharkhand on 13.08.2019 and the F.I.R. has been lodged on 21.08.2019 against the petitioner and the

co-accused contractor.

Mrs. Rakhi Rani- learned counsel for petitioner next submits that the F.I.R. is not sustainable as the same has been registered in violation of Section

17A of Prevention of Corruption Act, 1988 as amended by Act No.16 of 2018 and the sanction for investigation has not been granted by the

competent authority. It is further submitted that this case has been lodged after a delay of about 9 years and no departmental action has been taken

against the petitioner. It is next submitted that two years after the retirement of the petitioner, this F.I.R. has been lodged against the petitioner with

oblique purpose and malafide intention. It is also submitted that it is unbelievable that the co-accused contractor will pay the bribe amount after the job

of requesting for payment of the said amount and seeking allotment was made by the petitioner. Mrs. Rakhi Rani- learned counsel for the petitioner

admits Rs.3,35,000/- having been deposited in the joint account of the petitioner and his wife by the co- accused contractor but submits that there is

nothing in the record to show any subsequent conduct of the petitioner after deposit of the said amount so as to prove a motive or reward for doing or

forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions favour or disfavor to the contractor or for

rendering or attempting to render any service or disservice to the contractor, which is the essential ingredient to constitute the offence punishable

under Section 7 of the Prevention of Corruption Act, 1988. It is next submitted that the petitioner along with the Superintending Engineer requested to

the Chief Engineer for proceeding to rescind the agreement with the co-accused contractor Sanjeev Kumar for his failure to complete the said three

water supply projects. It is then submitted that the petitioner in capacity of Executive Engineer directed the Assistant Engineer to file a criminal case

against the co-accused contractor- Sanjeev Kumar for committing Cr. M.P. No.4340 of 2019 fraud with the department and for misappropriating

Government money and also directed the co-accused contractor to deposit various sizes of C.I. Titan pipes which were left with him in connection

with Mahagama village water supply project and to deposit the same in the store house of the Assistant Engineer, Mahagama. It is also submitted that

the co-accused contractor voluntarily deposited Rs.3,35,000/- in the joint account of the petitioner and his wife knowing that the petitioner is in need of

money due to some personal reasons and subsequently the said money was returned by the petitioner to co-accused contractor. Hence, it is submitted

that the F.I.R. as well as the letter for sanction of the F.I.R. be quashed.

Mr. T. N. Verma- learned counsel for the Anti-corruption Bureau on the other hand vehemently oppose the prayer for quashing the F.I.R. as well

as the letter for sanction for lodging the F.I.R. Drawing attention of this Court towards the counter- affidavit filed by the Anti-corruption Bureau, Mr.

Verma submits that preliminary enquiry on the basis of the complaint of the co-accused revealed that the petitioner recommended for payment of

Rs.30,00,000/-, though the co-accused contractor did not complete the work and the petitioner received bribe amount of Rs.3,35,000/- by getting the

same deposited in his joint account with his wife. It is next submitted that assuming that the amount of Rs.3,35,000/- which was deposited by the co-

accused contractor in the account of the Executive Engineer was a loan as claimed to have been taken by the petitioner from the co-accused

contractor still the petitioner should have shown the source of the amount and it is not difficult to draw the only logical conclusion that the amount of

Rs.3,35,000/- deposited by the co-accused contractor in the joint bank account of the petitioner with his wife was nothing but an illegal gratification

amount which was paid by the co-accused petitioner on the recommendation for payment and seeking for allotment of Rs.30,00,000/- by the petitioner

in respect of the Pathargama Village Drinking Water Supply Project to be paid to the co-accused contractor though he did not complete the work,

with the hope that the petitioner will release the said amount in favour of the co-accused contractor, upon receipt of the illegal gratification amount. It

is next submitted that there is no illegality in the sanction for institution of F.I.R. and the investigation never took place before such sanction. Hence, it

is submitted that there is no illegality in the same and as there is specific and direct allegation against the petitioner of having committed the offences

punishable under Sections 7, 8, 12, 13 of the Prevention of Corruption Act,1988 as well as Section 120 (B) of the Indian Penal Code. Hence, it is

submitted that this F.I.R ought not be quashed.

Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is a

Cr. M.P. No.4340 of 2019 settled principle of law that the validity of sanction can be considered only during the trial of the case as has been held by

the Hon'ble Supreme Court of India in the case of C.B.I. vs. Mrs. Pramila Virendra Kumar Agrawal & Another (Cr. Appeal No.1489-90 of 2019)

date of the judgment is 25.09.2019 wherein the Hon'ble Supreme Court of India has held as under in paragrapgh-13:-

""Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion

reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for

explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman,

Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there

is a distinction between the absence of sanction and the alleged invalidity on account of nonapplication of mind. The absence of sanction no doubt can

be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the

accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in

the trial"". (Emphasis Supplied)

Perusal of the record reveals that it is admitted by the petitioner that the co- accused contractor did not complete the work of Pathargama Village

Water Supply Project even then the petitioner in capacity of Executive Engineer of Drinking Water and Sanitation Department, recommended for

disbursement of Rs.30,00,000/- to the co-accused contractor and also sought allotment for the same and consequent upon that a sum of Rs.3,35,000/-

was deposited by the co-accused contractor in the joint bank account of the petitioner with his wife. Knowledge of rocket science is certainly not

required to know the reasons for such deposit of huge sum of money by the contractor in the bank account of the Executive Engineer-petitioner who

has recommended for disbursement of Rs.30,00,000/- and sought allotment for the same though admittedly the contractor did not complete the work.

In view of these serious allegations against the petitioner, this Court is of the considered view that this is not a fit case to quash the F.I.R. at this initial

stage.

So far as the contention of the petitioner regarding the sanction required under Section 17A of the Prevention of Corruption Act, 1988 is concerned,

perusal of the record reveals that the concerned officer of the Government of Jharkhand on behalf of the government upon considering the preliminary

enquiry report and other materials sanctioned for institution of the F.I.R. vide its letter dated 13.08.2019 and subsequent to that on 21.08.2019, the

F.I.R. was lodged. This fact on record negates the submission made by the petitioner that without sanction investigation is going on in the case.

Cr. M.P. No.4340 of 2019

So, far as the delay in lodging the FIR is concerned, in the FIR itself the reason for the delay in lodging of the same has suitably been explained. It is

a settled principle of law that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR

would put the court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory. (vide Sahebrao v.

State of Maharashtra, (2006) 9 SCC 794, State of H.P. v. Gian Chand (2006)6 SCC 71, Ravinder Kumar v. State of Punjab(2006)7 SCC 690

Because of the discussions made above this court is of considered view that there is no justification for quashing FIR or the said letter bearing

No.1233 dated 13.08.2019 as well.

Accordingly, this petition being without any merit is dismissed.