Ram Prasad And B.p. Prasad v. The State Of Jharkhand Through C.b.i

D.G.R. Patnaik, J.

1. Petitioner has prayed for quashing the entire criminal proceeding pending before the Court of the Sub-Judge-cum-C.B.I., Dhanbad vide R.C. Case No. 20 (A) of 1995 (D) including the order dated 01.02.2001, whereby cognizance for the offences under Sections 420 465 468 471 and 120B I.P.C. and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act and the corresponding Sections 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 was taken against the petitioner. The impugned order of cognizance and the continuation of the criminal proceedings against the petitioners has been challenged mainly on the ground that the Investigating Officer had intentionally and deliberately suppressed the material facts and by projecting the facts in a distorted manner, has misled the learned court below to take cognizance of the offences against him and thereby the investigating agency has abused the process of the Court, which has caused serious prejudice to the petitioner.

2. For appreciating the grounds, the background facts leading to the filing of the instant case may be noted. The case against the petitioner and the other co-accused persons was registered on the basis of the F.I.R. lodged on 17.10.1995 by the Inspector, C.B.I. The allegations in the F.I.R. are that during the month of May, 1986, the Coal India Limited (C.I.L.), Kolkata, invited Open Tenders from Contractors for execution of job or screening, loading and transportation of coal etc. and for the stock yard operations of various stock yards of the C.I.L., which included the Alakh Diha stock yard of the. B.C.C.L. In response to the Tender Notification, three tenders were received in respect of the job concerning Alakh Diha stock yard operation. One of them was the Tender submitted by M/s. Continental Transports and Construction Corporation (represented by Accused 6 to 8). The tenders were opened by a Tender Committee comprising of four nominated officials of the B.C.C.L., namely, Kanhai Lal Bose, N. S. Modi, Harbhajan Singh Dhillan and H.S. Arora, (cited as accused nos. 2 to 5 in the charge sheet). The petitioner was at the relevant time, the Chairman-cum-Managing Director of the B.C.C.L. It is alleged that in furtherance of a criminal conspiracy hatched out with intent of extending special favours and to entrust the contract job to the aforesaid contractor, the petitioner and the members of the Tender Committee had acted fraudulently and dishonestly in processing the Tenders for the job of Alakh Diha stock yard of the B.C.C.L. and had granted the contract job to the said firm. It is further alleged that with intent to cause wrongful loss to the Company and to make a wrongful gain for themselves, the accused persons had illegally included certain additional items of work within the scope of the contract job allotted to Contractor, without there being any specific necessity for the same, The specific allegation against the present petitioner is that he had acted beyond the powers delegated to him and had granted approval to the recommendations of the Tender Committee for expansion of the scope of work related to Alakh Diha stock yard by allowing inclusion of certain additional items of job. Such approval by the petitioner was allegedly made with mala fide intentions and without prior approval of the C.I.L. The further allegations is that the Contract job was awarded to the said contractor @ Rs. 5.25 per MT during the year 1987, whereas, subsequently in the year 1992, the rate paid to different Transporters for the same job was Rs. 4.05 per MT.

3. The main ground advanced by the learned Counsel for the petitioner is that even though the petitioner at the relevant time was the Chairman-cum-Managing Director of the B.C.CL. and even though it was the Coal India Ltd., who had invited the Tenders including Tender for the operations to be carried out at the Alakh Diha stock yard of the B.C.C.L., yet the petitioner had neither usurped any authority nor acted beyond his powers in the matter of allotment of the contract job to the Contractors. According to learned Counsel, the Board of Directors of the B.C.C.L., who by virtue of the authority vested in them by the C.I.L., had taken a unanimous decision for allotment of the contract job in respect of the operations to be carried out at the Alakh Diha stock yard. Such decision, according to learned Counsel, was taken on the basis of the recommendations of the Tender Committee, which was constituted as a totally independent body specifically for scrutinizing the Tenders received. It is further claimed that the proposal to include the additional items of work in the contract, was made by the Tender Committee on the basis of the requirements and exigencies of the work to be executed and the granting of approval to the recommendations of the Tender Committee, cannot constitute any act of offence nor can any adverse presumption be drawn against the petitioner for granting approval. The ground on which further emphasis had been laid by the petitioner is that the order of cognizance as taken by the learned court below was on the basis of incomplete and distorted statement of facts and not on the basis of a correct representation of the facts. Learned counsel explains that it was only when the petitioner had brought to the notice of the superior officers of the Investigating Agency and to the concerned authorities of the C.I.L., that a direction was issued to the investigating officer to investigate into all the relevant aspects of the case pointed out by the petitioner whereafter, further investigation was made and the actual state of affairs, as explained above, was brought on record before the court below by the Investigating Officer at a belated stage by way of a supplementary charge sheet. Such essential informations were not made available to the learned Magistrate on the date of his passing the impugned order of cognizance. Learned counsel in this context refers to the various annexures to the petitioners memorandum of application to butteress his submissions.

Learned counsel further argues that even otherwise, the order of cognizance is bad in law as because the petitioner at the relevant time being a Presidential Appointee and being a Public servant, the alleged offences relate to certain acts in discharge of his official duties and, as such, it was mandatory for the Investigating agency to obtain prior sanction of the Central Government under Section 197 of the Code of Criminal Procedure for the prosecution of the petitioner in the instant case. Since, no such sanction was obtained, the prosecution of the petitioner for the alleged offences is totally illegal and against the mandatory provisions of law.

4. As against this, Shri Rajesh Kumar, learned Counsel appearing for the C.B.I. has refuted the entire grounds advanced by the petitioner, claiming the same to be misconceived and misleading. Denying the submissions of the learned Counsel for the petitioner that a supplementary charge sheet was filed by the Investigating Officer in respect of the petitioner, learned Counsel submits that no supplementary charge sheet, as claimed by the petitioner, was ever filed in the instant case before the trial court. Learned counsel clarifies that the document, which the petitioner perhaps intends to refer, is not a supplementary charge sheet but is a supplementary Report submitted by the Investigating Officer on 29.05.2003 before the learned court below, which is only explanatory in nature and explain certain facts. Learned counsel concedes that on the petitioners persuasions, further investigation on certain issues were taken up by the Investigating Officer and the information collected in course of further investigation was that the B.C.C.L. was authorized by the C.I.L. to take its own decision in the matter of scrutinizing the Tenders and allotting the contract job to the contractors and it has also come to light that the decision to allot the work was taken by the Board of Directors of the B.C.C.L. However, the further investigation also revealed that none of the relevant matters, including insertion of certain additional items of work in the contract allotted to the co-accused were actually discussed by the members of the Board. Rather, the decision of the Board was influenced by the present petitioner in his capacity of the C.M.D. of the Company. As regard the ground of sanction of prosecution under Section 197 of the Cr.P.C., learned Counsel submits that since on the date of cognizance of the offences, the petitioner had already retired from service and since the offences for which cognizance was taken include the offences under the prevention of Corruption Act besides the offences under the Indian Penal Code and since considering the nature of allegations, no sanction was required to be taken for the offences under the Prevention of Corruption Act, therefore, no sanction was required even under Section 197, Cr. P.C. in respect of the offences under the Indian Penal Code. Learned counsel refers in this context to the judgment of the Supreme Court reported in (2006) 1 SCC 5567.

5. The controversy raised by the petitioner relates to two different aspects, namely, cognizance of the offences as taken by the learned court below vide the impugned order and the prosecution of the petitioner for the said offences pursuant to the summon of the Court directing him to appear and face trial. At the outset, it has to be understood that cognizance of offence and prosecution of offender are two different aspects. Section 190 of the Code of Criminal Procedure empowers the Magistrate to take cognizance of an offence and not to decide upon who the offenders are. The offenders may or may not be known or named when the complaint is made and the cognizance of the offence is taken. Their names may transpire during investigation or afterwards. Section 190 under Chapter XIV of the Code of Criminal Procedure deals with the Conditions Requisite for Initiation of Proceedings reads:

190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

6. The term "Police Report" has been defined under Section 2(r) of the Code of Criminal Procedure and it refers to a Report forwarded by a Police Officer to a Magistrate under Sub-Section 2(b) of Section 173 of the Code. This Report is submitted on completion of the investigation. On receipt of such report, the Magistrate has to consider the Report judicially and take a decision whether or not to take cognizance of the offence. It needs no emphasis to state that cognizance is taken of an offence and not of the offender. The Magistrate, takes cognizance of the offence, if he is satisfied from the Police Report that a prima facie case for certain offences is made out. Even if an irregularity has been committed in the investigating, the Police Report is deemed to be a Report under Section 190(1)(b) of the Code and the Magistrate can take cognizance of it. It cannot be maintained that a valid and legal Police Report is the foundation of the jurisdiction of the Court to take cognizance of the offence. Defect or illegality in the investigation, however, serious, has no direct bearing on cognizance of the offence taken by the Magistrate. An invalid Police Report is not a nullity. It is only an error antecedent to trial and curable under Section 465 of the Cr.P.C., unless the illegality in investigation brings about miscarriage of justice. This view is fortified by the ratio decided by the Supreme Court in the case of H. N. Rishbud and v. State of Delhi reported in : 1955CriLJ526 and also in another judgment in the case of Major E. G. Barsay v. State of Bombay reported in : 1961CriLJ828 .

7. In the instant case, as it appears, the Investigating Officer had submitted the Police Report, (referred to as the charge sheet), containing materials, which he had collected during the investigation. The Magistrate on receipt of he Police Report had considered the same judicially and being satisfied that a prima facie case is made out for the offences, had taken cognizance of the offences. There is, therefore, no illegality in the impugned order of cognizance as passed by the learned court below.

8. Learned counsel for the petitioner has tried to find fault in the impugned order of cognizance on the ground that the charge sheet as submitted against the petitioner cannot be considered to be a complete Report in as much as, the Investigating officer had not conducted the investigation in respect of all the relevant materials concerning the petitioner and further, that the Investigating Officer had misrepresented the facts distorting the same to cause prejudice to the petitioner and thereby had mislead the learned Magistrate to take cognizance of the offence against the petitioner. Learned counsel adds that the Magistrate could not, therefore, be in a position to appreciate the relevant facts in respect of the petitioner in proper perspective. It appears that the learned Counsel has based his arguments on certain facts, which were brought on surface, subsequent to the submission of the Police Report. As stated above, a defect or illegality in investigation, however, serious has no direct bearing on cognizance unless the illegality in investigation brings about a miscarriage of justice. The claim of the learned Counsel for the petitioner that there is a definite illegality in the investigation, as because the Investigating Officer has not investigated into the material and relevant aspects of the case in respect of the petitioner and, therefore, the prosecution of the petitioner on the basis of such illegal investigation Report causes miscarriage of justice, also, cannot be acceptable at this stage. The claim of the petitioner of defect in the investigation has strongly been contested by the prosecution, as it appears from the submissions made by the learned Counsel for the C.B.I. It would, therefore, be for the petitioner to demonstrate his claim at the appropriate stage in the proceeding when the trial is to be commenced against him. The cognizance of the offences having validly been taken by the Magistrate, it would thereafter be for the trial court to consider at the appropriate stage, as to who are the offenders and who should be put on trial for the offences.

9. As regards the ground of want of sanction for the prosecution of the petitioner, this ground has also been contested by the Opposite Party No. 2, mainly on the ground that considering the nature of allegations against the petitioner, sanction under Section 197, Cr.P.C. for his prosecution is not necessary and that in any case since that petitioner had already retired from service on the date of cognizance of the offence, such sanction was not necessary in view of the fact that the offences are not confined only to the offences under the Indian Penal Code but are essentially the offences under the Prevention of Corruption Act. It appears, therefore, that the answer to this question depends upon the nature of the acts alleged against the petitioner constituting the offences. It would, therefore, be for the trial court to appreciate the facts as may be brought on record and decide this as one of the issues for determination.

10. Since I do not find any fault in the impugned order of cognizance, the grounds advanced by the petitioners are not sufficient, in my opinion, to invoke the inherent jurisdiction of this Court for quashing the proceeding against the petitioner. The issues raised by the petitioner are such as may be considered by the trial court at the appropriate stage. The petitioner may agitate his grounds on the basis of the materials available on record at the stage of commencement of the trial against him.

11. With these observations, this application stands disposed of.