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Judgment
Gautam Kumar Choudhary, J
Instant petition has been filed for quashing the order dated 09.07.2015 passed in RC 03(A)/2011-R(C) by learned Special Judge, CBI, Ranchi wherein cognizance has been taken under Sections 120B read with Section 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter called PC Act) including supplementary charge sheet dated 30.06.2015.
Petitioner was the Chief Executive Officer of Ranchi Municipal Corporation and the main allegation against him is that he had granted permission for construction of the multi-storied building on the land of Housing Board by the private builder, with knowledge that the land was not a private land.
CBI registered the case in pursuant to the direction passed in W.P. (PIL) No.1531 of 2011 regarding illegal sanction by RRDA for construction of building plan with respect to the land which had been acquired by the Housing Board.
As per the prosecution case the petitioner being posted as Chief Executive Officer, Ranchi Municipal Corporation while deciding the matter in favour of the builder, wilfully ignored to consider the documents on record that Housing Board had issued prohibitory notice restricting construction on the plots in question. It was ignored that L.S. Case No.39 of 2008 was pending in the RRDA on the same issue and ignored the recommendation of the Junior Engineer, RMC to get the facts checked from the RRDA. The petitioner also failed to check whether builder had NOC issued by the Jharkhand State Housing Board, Ranchi or not? In order to extend undue benefit to the builder, the matter was decided by the petitioner at his own without consulting any Engineer, Town Planning Department or Law officer of RMC.
The decision to refer the complaint to RRDA, was also not complied and file was disposed of in favour of the builder which was against the interest of Jharkhand State Housing Board.
He also deliberately ignored that building construction plan submitted by one Murlidhar Jha on the same plot for sanction, was rejected by RRDA for the reason than land was under possession of Housing Board.
CASE OF THE PETITIONER
It is submitted by learned counsel on behalf of petitioner that the petitioner had no role in the sanction of building construction plan by RRDA which was sanctioned in BC Case No.937/2007 on 15.10.2007. The RRDA had earlier rejected sanction plan over Plot Nos.127 & 181 under Mauza Kadru on the ground of objections raised by Jharkhand State Housing Board but thereafter, the said plan was sanctioned in 2007.
In 2009, the power of sanctioning building plan was transferred to Ranchi Municipal Corporation following which Rajesh Kumar Gupta submitted the complaint to RMC regarding the construction over Plot No.127 & 181 which was marked to Junior Engineer for verification. The complaint of Rajesh Kumar Gupta was also followed by Amritesh Singh. The complaint was also enquired by Shri Anup Kumar Sinha, J.E., R.M.C. and submitted his report with similar recommendation.
Considering the recommendation, the builder was directed to stop the construction, but after submission of building plan sanctioned by RRDA, the construction work was directed to be allowed to continue by letter dated 11.01.2010 for which the present case has been filed.
It is submitted by learned counsel on behalf of petitioner that the order permitting construction was not mala fide and was based on the construction plan already sanctioned by the RRDA. In 2007, the power of sanctioning plan was exclusively vested in the RRDA by which plan had been sanctioned and power to sanction plan was transferred to Ranchi Municipal Corporation in 2009. Once there were adverse noting regarding construction of building, the petitioner had stopped the construction by order dated 04.01.2010 but when sanction plans were produced by the concerned builder, the petitioner had no option but to allow the construction by permitting the continuation of construction. It is further submitted that in view of fact that one proceeding being L.S. Case No.39 of 2008 was pending against sanction of the building plan before the RRDA, the petitioner could not have initiated other proceeding with regard to it.
STAND OF CBI
It is submitted by the learned counsel on behalf of CBI that investigation has revealed that subsequent to the complaint of Sri Rajesh Kumar Gupta, another complaint was received in RMC, Ranchi from one Amritesh Singh. This complaint was enquired by Sri Anup Kumar Sinha, JE, RMC, Ranchi who submitted his report mentioning all the facts including the fact that the RRDA had once rejected sanction of plan on the same plot on the ground that the plots of land were under acquisition of the housing board. Sri Anup Kumar Sinha recommended in his report that the builder be asked to appear with sanctioned plan and NOC issued by Housing Board. Thereafter on the recommendation of Assistant Engineer and Deputy CEO, the builder was asked to stop the work and submit the sanctioned plan of RRDA. The builder submitted documents relating to land and his sanctioned plan and thereafter vide letter dated 11.01.2010 Sri Sudarshan Prasad Singh, CEO RMC, Ranchi allowed the builder to continue the construction without getting the documents submitted by the builder examined by the officials of Ranchi Municipal Corporation or without caring to verify whether the builder had NOC from the Jharkhand State Housing Board for carrying out such illegal construction.
The petitioner while deciding the matter in favour of builder willfully ignored to consider the document on record that Housing Board had issued Prohibitory notices restricting construction on the questioned Plots No. 127 and 181. He ignored that LS case No. 39/08 was pending in the RRDA on the same issue. He deliberately ignored the recommendation of the Junior Engineer, RMC to get the facts checked from RRDA and also to check whether the builder had NOC issued by the Jharkhand State Housing Board, Ranchi. In order to extend undue benefit to the builder the matter was decided by the petitioner without consulting any Engineer, Town Planning Department or Law Officer of RMC. The petitioner totally ignored the fact that decision to refer the complaint to RRDA was also not complied and disposed the file in haste deciding in favour of the builder, which was totally against the interest of Jharkhand State Housing Board. Before deciding the matter in favour of the builder the petitioner did not the documents on record that the Housing Board had informed the applicant under RTI that the construction by the builder was thoroughly illegal and the builder was not given any NOC to construct apartment on plot no. 127 and 181, Mauza Kadru. He also deliberately ignored very significant fact that building construction plan submitted by one Sri Murlidhar Jha on the same plot for sanction was rejected by RRDA on the ground that the land was falling under acquisition of the Housing Board.
ANALYSIS
From the provision of discharge as laid down in Section 239 Cr.P.C, it is apparent that it can be allowed only where the magistrate considers it to be groundless. The provision reads as under.
“Section 239-- When accused shall be discharged-- If, upon considering the police report and document sent with it under Section 173 and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reason for so doing.”
No detailed evaluation of the materials or meticulous consideration of the possible defence need to be undertaken at this stage. The test for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted make out no case whatsoever. Where material on record discloses offence, accused cannot be discharged.
It has been held in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515:
The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.
The petitioner’s case is precariously founded on the plea of sound exercise of administrative discretion permitting the construction of the building considering the map duly sanctioned by RRDA. There are materials on record which go to show that it had been brought to the notice of the petitioner that land in question was that of the Housing Board and earlier the construction of building on the said plot had not been permitted. Under the circumstance whether it was a case of error of judgement in exercising the discretion while permitting the construction of the building, or it was done under a criminal conspiracy with the builder to extend undue favour to him, is a question of fact and not a question of law. The fact of the matter is that construction was permitted by the order of the petitioner on a land acquired by the Housing Board. If the allegations levelled are accepted it will amount to criminal misconduct in exercise of the sanctioning power.
This court is of the view that there is no infirmity in the impugned order.
Criminal miscellaneous petition stands dismissed.
I. A., if any, stands disposed of.