Penal Code, 1860 – ss.109, 409, 420, 467, 471, 477A and 120B – Prevention of Corruption Act, 1988 – s.13(1)(c) and s. 13(1)(d) – Charges under – While giving effect to an award in favour of RPCL, JSEB faced shortage of funds – JSEB decided to make internal enquiry into handling the work contract given to RPCL – On basis of the said enquiry, allegations of malpractice and financial irregularity were levelled against the appellant and some others – FIR was registered – Charge sheet was filed – Appellant moved a discharge petition u/s.239 of Cr.PC, which was dismissed by the Special Judge – Revision was also dismissed by the High Court – On appeal, held: The decisions in the board meetings were taken with mutual consent of the parties – Appellant was neither involved nor was a part in the proposal or the decision making process – Appellant had merely prepared the agenda for appointment of an arbitrator and had nothing to do with approval of award and payment of money – Prima-facie there is nothing which affixes culpability or constitutes commission of offence including mens-rea on the part of the appellant – Appellant was neither entrusted with funds of JSEB nor he had fraudulently or dishonestly deceived senior officials of the JSEB to cause any benefit to RPCL or any wrongful loss to JSEB and no evidence of illegal gratification or disproportionate assets were found against the appellant – Consequently, appellant is discharged in the criminal proceedings. Allowing the appeal, the Court
HELD: 1. The perusal of material indicates that because it was difficult for the JSEB to implement the award due to financial difficulty, a roving and fishing enquiry was conducted, in consequence of which, Secretary, JSEB vide letter dated 30.07.2010 and then Vigilance Commissioner vide letter dated 03.09.2010, requested the DGP, Vigilance Bureau to register an FIR against the Appellant. This Court fails to understand as to why the same person, who had approved the implementation of award as a member of the Board, had later as Vigilance Commissioner, recommended initiation of prosecution against the Appellant, who had merely prepared the agenda for appointment of an arbitrator and had nothing to do with the approval of the award and payment of money. In view of the aforesaid, if at all any culpability had to be assigned, it should have been assigned after examining the role of senior authorities who were involved in the decision-making process. Astonishingly, most of the senior officials, who approved various decisions regarding extension of time, appointment of arbitrator and implementation of arbitration award and consequent payment to RPCL have not been arrayed as accused. In our considered view, prima-facie there is nothing which affixes culpability or constitutes commission of offence including mens-rea on the part of the Appellant. It seems that an attempt has been made to implicate the Appellant for the decisions in which prima-facie, he did not have any role to play, nor do his acts establish any culpability regarding the alleged offences. [Para 13][36-D-H]
2. If at all there were issues with respect to the maintainability of the award due to the provisions of the contract, particularly as per the contended negative covenant, the same should have been highlighted by the Attorney General, especially when his opinion was expressly sought. This Court finds it difficult to accept that the opinion of the learned AG was prejudiced merely because he was not made aware of the negative covenant pertaining to price variation by an engineer of the JSEB who has limited exposure in the domain of law. This Court has no hesitation in stating that AG being the highest law officer of a State, is competent to advise the State on legal matters after due diligence, taking into consideration all relevant factors and material. Therefore, the Appellant cannot be said to influence or impact the opinion of the learned AG which had resulted in approval of JSEB to implement the award. Hence, in considered view of this Court, it cannot be inferred that the Appellant led the AG and the JSEB to implement the award with fraudulent or dishonest intention to cause loss to JSEB and benefit to RPCL. [Para 14][37A-C]
3. It is a well settled law that at the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Indeed, the Court has limited scope of enquiry and has to see whether any prima-facie case against the accused is made out or not. At the same time, the Court is also not expected to mirror the prosecution story, but to consider the broad probabilities of the case, weight of prima-facie evidence, documents produced and any basic infirmities etc. In this regard the judgment of “Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” can be profitably referred for ready reference. Having due regard to the documents placed before us and in the light of the submissions and discussion made above, we are of the considered view that sufficient grounds casting a grave suspicion on the Appellant, do not exist. It is observed that the ingredients of alleged offences cannot be prima-facie established against the Appellant as neither had he been entrusted with funds of JSEB nor he had fraudulently or dishonestly deceived senior officials of the JSEB to cause any benefit to RPCL or any wrongful loss to JSEB and no evidence of illegal gratification or disproportionate assets has been found against the Appellant. [Para 18][40-E-H]
Union of India v. Prafulla Kumar Samal (1979) 3 SCC
4 : [1979] 2 SCR 229 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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