Venkat Ramana v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA CRR/13/2022 Venkat Ramana ... Petitioner VS.

The State ... Respondent For the petitioner : Mr. Gopala Binnu Kumar For the respondent : Mr. Sumit Karmakar Heard on : August 24, 2022 Judgment on : August 26, 2022 MOUSHUMI BHATTACHARYA, J.

1.

The petitioner seeks setting aside of an order dated 18th February 2022 passed by the learned Special Judge, Andaman and Nicobar Islands, Port Blair by which the petitioner's application for discharge filed under section 227 of The Code of Criminal Procedure, 1973 was rejected. The petitioner was one of ten persons who had applied for discharge before the learned Special Court. Two persons of the ten were discharged by the impugned order and the remaining eight, one of who is the petitioner, was disallowed the prayer for discharge.

2.

The allegation levelled against the petitioner is of a criminal conspiracy with one M/s Engineering Enterprises and its proprietor for awarding of a tender for executing the work of LP fired crematorium at Garacharma without following any of the formalities prescribed. The allegation is that the tender was awarded to the said firm for pecuniary gain resulting in loss to the government exchequer. 3.

Learned counsel appearing for the petitioner takes several points in order to urge that the present revisional application should succeed. Counsel submits that the FIR was filed after eleven years from the date of awarding of tender and that the petitioner cannot be proceeded against under The Code of Criminal Procedure,1973 for mere procedural irregularities and procedural lapses. Counsel submits that the allegations would appear from the chargesheet filed against the petitioner which only records "unfruitful expenditure" along with irregularities in the purchase of two crematorium furnaces. 4.

Counsel further submits that the estimates for the purchase were made at the relevant point of time and were also approved by the administrative authority who was competent to give such approval. Counsel submits that the chargesheet does not disclose any criminal offence and further that two of the ten applicants were discharged by the Special Court without taking into consideration the fact that the petitioner stood on the same footing with the two discharged persons. Counsel submits that the impugned order does not disclose the reason for discharging the persons who were in a superior position to

the petitioner and the reason for rejecting the application of the petitioner who was a junior officer.

5.

The learned Public Prosecutor appearing for the State submits that the petitioner conspired with the seven persons who were before the Special Court and that the petitioner was one of the group who favoured the particular firm in awarding the tender for purchase of crematorium furnaces. Counsel submits that the delay in lodging of the FIR was due to the fact that the defects in the furnaces were discovered much later in 2018. Counsel defends the impugned order by contending that the Special Court has given reasons to explain the prima facie case made out by the State and that the investigation should not be interfered with at this stage. Counsel submits that an offence under section 13(1)(d) of The Prevention of Corruption Act, 1988 would result in initiation of criminal proceedings against such person.

6.

Upon hearing learned counsel, it appears that the primary material which should be considered for determining the outcome of the application is the impugned order dated 18th February 2022 passed by the learned Special Court. Section 227 of the CrPC empowers the Judge to discharge the accused if upon considering the records of the case and after hearing the submissions of the accused and the prosecution, the Judge comes to a finding that there is insufficient ground for proceeding against the accused. The Judge however must record the reason for discharging the accused. The

section therefore indicates that it is on the Judge who is to come to a prima facie view that there is no material for proceeding against the accused and the view must be substantiated from the record and documents submitted to the Judge.

7.

The impugned order is a detailed order with reasons. The learned Judge has considered the individual factual circumstances of each of the ten applicants before the Court recording in painstaking detail not only the allegations made against the ten accused persons, the petitioner being one of them, but also the reasons for holding that there were serious lapses at every stage of working out the modalities of the tender. The aforesaid finding takes into consideration the submission made on behalf of the petitioner and the nine accused persons including the fact that the administrative approvals and expenditures sanctioned were obtained at the relevant stages of the tender.

8.

The learned Judge also came to the finding that preliminary estimates were not accompanied by the manufacturer price list and cost of building and estimates of relevant factors like transportation cost of the plant upto Port Blair. The learned Judge further found that the documents showed that running bills were prepared without necessary fact-checks including the quality of the plant and installed by the concerned firm/contractor. The relevant findings include the fact that the name of the manufacture of the plant was not quoted in the tender submitted and the concerned contractor did not submit

any document in support of his eligibility for being awarded the work as notified in the Notice Inviting Tender.

9.

The impugned order contains several others findings to strengthen the conclusion of the learned Court. The relevant findings are that the requisites for execution of the work according to the CPWD Manual were not disclosed in the records before the Court and the preliminary/detailed estimates were not supported by any documents. With regard to the question of penal liability, the learned Judge was of the view that the petitioner and the others accused were individually entrusted with specific duties and that procedural lapses were apparent from the initial stage of the work. 10.

The reasons for discharging of two of the ten accused are also supported by cogent facts and the court accordingly held that there was no evidence to show the direct connivance of two persons in the entire process. The Court however found a prima facie case made out against the petitioner and seven other accused persons with regard to their involvement and connivance in the alleged crime. The petitioner's application for discharge was rejected on that basis. 11.

Although counsel appearing for the petitioner has urged several factual points to picks holes in the findings arrived at by the learned Judge including the fact that proper estimates, approvals and sanctions were taken at the relevant point of time, this Court is unable to agree with the contention that the impugned order suffers from an absence of reasons. The argument that the petitioner was on

the same footing as the two persons who were discharged is a fact which is required to be tested on evidence. This Court also finds substance in the position taken on behalf of the State that the investigation would bring out the truth/falsity of the contentions made on behalf of the petitioner and the State and that the petitioner cannot claim discharge in the face of the findings by the Court. There is also truth in the submission that the trial will, and can be expected to, establish whether the petitioner had indeed violated the provisions of The Prevention of Corruption Act, 1988 and therefore must not be interfered with at this stage.

12.

Section 227 of the CrPC gives full discretion on the Judge to make an order for discharge of the accused (or refuse the same) upon due consideration of the documents and records before him. Although, section 227 of the CrPC is a beneficent provision to save the accused from a prolonged trial, the purpose of the said provision is to ensure that the Court should be satisfied that the accusation made against the person is not frivolous and that there is some material for proceeding against him. In the present case, the specific findings of the learned Special Judge on facts cannot be ignored or substituted by a different view without corroborative material. No such material has been placed before this Court and the findings of the learned Court cannot hence be ignored.

13.

In Union of India vs Prafulla Kumar Samal & Another, (1979) 3 SCC 4, the Supreme Court specifically found that there was no

evidence of any conspiracy between the Collector and the respondents. The Court was also reluctant to interfere with concurrent findings of two courts before it in the absence of any special circumstances. Kishan Singh (D) vs. Gurpal Singh, (2010) 8 SCC 775 holds that delay in lodging a FIR may be fatal only in the absence of a plausible explanation for such delay and where the delay was deliberate. In the present case the delay in lodging the FIR has been explained by the Public Prosecutor by stating that the defects in crematorium equipment were discovered only later.

14.

Since this Court is unable to accept the case sought to be made out by the petitioner for discharge, there is hence no reason to set aside the impugned order dated 18th February, 2022 of the Special Judge, Andaman and Nicobar Islands at Port Blair. Needless to say, it is expected that there will be no delay in framing of charges or the subsequent stages of the trial and that the Special Court will give due weightage to the contentions of the petitioner with regard to the petitioner not being involved in any manner in the criminal misconduct under section 13 of The Prevention of Corruption Act, 1988.

15.

In this context, it must be stated that although the learned Court as well as the learned Public Prosecutor have relied on section 13(1)(d) of the 1988 Act, sub-sections (a) to (e) of section 13 were substituted in 2018 with effect from 26.7.2018. Section 13 presently has only two sub-sections which may or may not apply to the facts of

the present case. The investigation must also pay heed to this aspect of the matter.

16.

CRR/13/2022 is rejected for the reasons as stated above. ( Moushumi Bhattacharya, J.)