IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 916 of 2014 Suresh Prasad Singh Son of Late Ramraksha Singh resident of Sector-VIII, Q. No.- D/21, Koyla Nagar, Bharat Coking Coal Limited, PO & PS- Koyla Nagar, District- Dhanbad …. Petitioner --Versus-- The State, through Central Bureau of Investigation …. Opp. Party For the petitioner : Mr. Rajeev Ranjan, Sr. Advocate, M/s. Pandey Neeraj Rai & Rohit Ranjan Sinha, Advocates For the C.B.I. : Mr. Kailash Prasad Deo, Advocate CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA ----------- C.A.V. on 08.04.2016 PRONOUNCED ON- 07/09/2016 Invoking the inherent power of this Court as incorporated under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for quashing of entire criminal proceeding as well as the order dated 12.04.2013 taking cognizance of offence under Sections 120-B and 409 of I.P.C. as also under Sections 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act in connection with R.C. Case no. 11(A) of 2011-D.
2. Bereft of unnecessary details, the facts, which is relevant for the proper adjudication of the issue involved in this criminal miscellaneous petition, in short, is that at the instance of the Superintendent of Police, C.B.I./ACB/Dhanbad, the aforesaid case was instituted under Sections 120-B read with Section 420 and 409 of I.P.C. and also under Sections 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act against several accused persons including the petitioner, who was posted as General Manager in Kustore Area, BCCL, Dhanbad with the allegation that information has been received from reliable source that the petitioner and other accused persons conspired among themselves and abusing their respective official position as Public Servant dishonestly misappropriated 3,02,246.121 MT of coal stock during check period 2009-11. Whereafter, physical measurement of the coal stock at Rajapur Open Cast Project, Kustore Area was carried out by a team 2 of officials of C.B.I. and B.C.C.L. Vigilance in assistance with Technical Survey Officers and during their joint surprise checking, coal stock to the tune of 3,11,052.879 MT was physically found, whereas, as per records, the book stock of coal was 6,13,299 MT on 02.08.2011. So, there was a noticeable shortage of coal to the tune of 3,02,246.121 MT causing loss of Rs.54 crores and odd to Bharat Coking Coal Limited and corresponding wrongful gain to themselves and others. The shortage was beyond the permissible limit of 5% as per the provisions contained in the Code for Uniform System of Maintenance, Control and Verification of Coal Stock (commonly known as “Yellow Book”) issued by CIL during January 1992. The General Manager, Agent/Project Officer and Manager of the concerned colliery were held to be responsible for coal shortage in view of the clause 66 (iv) of the said “Yellow Book”.
3. After investigation, C.B.I. submitted the detailed charge- sheet stating therein that investigation as prima facie establish that this petitioner along with Shailendra Kumar Singh- the Project Officer and Sunil Kumar Pathak Manager posted in Rajapur Open Cast Project, Kustore Area, Dhanbad entered into a criminal conspiracy among themselves and in furtherance of the said criminal conspiracy, they dishonestly mis-appropriated 2,83,044 MT approximately i.e. 47% of coal of ROCP Kustore Area worth Rs. 27,80,08,647.74 approx, which was entrusted to them in their dominion and control in their respective capacities as public servant but they abused their respective official position as public servant. The sanction for prosecution of the petitioner and other two accused persons are accorded by the competent authority and are enclosed with the charge-sheet.
4. To appreciate the working of BCCL, which is a subsidiary of Coal India Ltd., a uniform system of Maintenance, Control and Verification of coal stock, a Code was prepared, which is a compilation of all the rules and notifications of the Coal India Limited popularly known as “Yellow Book”. The „preface‟ written by the Chairman is given hereinbelow for better appreciation:
3. “A uniform system of maintenance, control and verification of coal stock in all mines of Coal India was deemed essential and accordingly a Committee was appointed for reviewing the existing practice and procedures for firm measurement of OBR and coal stock as per earlier recommendations of Balram Committee. Coal India Board in its 118th meeting held on 22.08.1991 approved the recommendations of the Sub-Committee on uniform system of maintenance, control and verification of coal stock of all mines in modification of the Balram Committee report. The present Code for maintenance, control and verification of coal stock in all mines in CIL has, thus been evolved. Thus responsibility centres and penalties have also been incorporated in this code and have been approved by CIL Board. In view of this, in addition to Colliery Managers, Agents, Project Officers, the General Managers are also directly responsible for proper maintenance, control and verification of coal stock. This code shall come into force with immediate effect.” The relevant Clause 66 of the said „Yellow Book‟ is placed under the caption „INVESTIGATION AND ACTION FOR STOCK SHORTAGE CASES‟ and sub-clause (iv) of Clause 66 speaks about the responsibility as follows: “Manager, Agent and General Manager will be responsible for maintenance of stock and will be held responsible for all stock shortage cases.” From bare perusal of the aforesaid provision, the General Manager of the area appears to be responsible for the maintenance and any shortage in coal stock.
5. Mr. Pandey Neeraj Rai learned counsel appearing for the petitioner assailing the order taking cognizance as bad in law seriously contended that the continuation of the criminal proceeding is an abuse of process of the Court and even if it be assumed that the finding of the C.B.I. with regard to loss of Coal Stock is correct, the petitioner cannot be saddled with any liability much less the criminal liability as the petitioner assumed the charge of General Manger, Kustore Area and continued up to 04.08.2011 (though it is contrary to the date shown in the charge-sheet as 29.06.2009 to 01.06.2012) and the petitioner was though overall in-charge of the area but in view of the letter dated 16.09.2008 issued on the instruction of the Director (Technical) of BCCL (Annexure-6 with this writ application), the responsibility of coal stock, maintenance and control was shifted on the Additional General Manager of the area concerned and even if 4 there is any violation of clause 66(iv) of the „Yellow Book‟, it creates only a civil liability on the person concerned. It was also submitted that no criminal liability can be fastened by relying upon the guidelines given in the „Yellow Book‟ and the same can be created only by a statute. Learned counsel further contended that during the same period, raid was conducted in Lodna area and F.I.R. was lodged by CBI but after investigation, the General Manager of the said Lodna Area was not held liable for the coal shortage rather relying upon the same above letter (Annexure-6), the charge-sheet was submitted only against the Additional General Manager and other officials. In support of his contention that it was the responsibility of AGM, learned counsel relied upon the monthly survey measurement reports for the months of April to June, 2011 to show that the then Additional General Manager, Kustore Area Sri S.K. Gupta had put his signature over the quarterly report ending June, 2011. It was also submitted that from the instruction issued by the Chief General Manager of Kustore Area (Annexure-6), it would appear that the General Manager had no obligation to personally know the correctness of the monthly or quarterly reporting and only in annual report of coal stock, the General Manager had to put his counter-signature. As such, none of the ingredients responsible to constitute the offence, in which cognizance has been taken, is against the petitioner and at best, a departmental proceeding can be initiated again him for the violation of Clause 66 (iv) of the „Yellow Book‟ but the court below without considering and appreciating the responsibility of the petitioner erred in taking cognizance of offence against the petitioner. Hence, the entire criminal proceeding continuing against the petitioner including the order taking cognizance are bad in law and fit to be quashed.
6. Per contra, Mr. K.P.Deo learned counsel appearing for the C.B.I. relying upon counter affidavit filed by CBI strongly contended that there is a clear violation of the direction given in the “Yellow Book”, which is a compilation of the instructions to maintain 5 uniformity in all the five subsidiaries of Coal India and apparently the General Manager along with other accused persons were made responsible for proper maintenance, control and verification of coal stocks and contrary to the above instruction, if any instruction has been issued by Director (Technical) BCCL, the same will not override the provisions of the Yellow Book. Secondly, the coal stock was verified by the CBI officials in presence of the BCCL Vigilance and the experts and prima facie a huge quantity of coal was found missing and the investigating agency had collected sufficient materials against the petitioner and other accused persons and those evidences cannot be examined and appreciated at this stage like that of trial. Lastly, it was submitted that the charge-sheet has been submitted under Section 120 ‟B‟ of IPC and as such question of setting free the petitioner at this stage of proceeding does not and cannot arise. Some general evidence pertaining to conspiracy would be sufficient to form part of the charge of conspiracy in the charge- sheet.
7. Before I enter into the veils of submissions of the learned counsels, it would be pertinent to examine the inherent power of this Court under Section 482 of the Code. It is well settled that the powers under the said provision are very wide and the Court can use those extra ordinary power to prevent injustice and to secure the ends of justice. But the Court while exercising the inherent power must be careful to see that its decision must be based on sound principles and it should not be exercised to stifle a legitimate prosecution. In the case R.P.Kapur Vs. State of Punjab; AIR1960SC866 the Hon‟ble Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings, which are as follows: (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; 6 (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
8. The Hon‟ble Supreme Court further in the case Madhavrao Jiwajirao Scindia & Others Vs. Sambhajirao Chandrojirao Angre & Others; (1988) 1 SCC692observed in para 7 as follows:
“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.“ The inherent power of the Court was also considered in the case State of Haryana & Others Vs. Bhajan Lal & Others 1992 Suppl. (1) SCC335 wherein the Hon‟ble Supreme Court has laid down a complete guidelines where such power should be exercised. The guidelines are as follows: (i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no 7 investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 153(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. “ 9. Besides the jurisdiction of the High Court with regard to inherent power under Section 482 of the Code, the Hon‟ble Supreme Court in the case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC330while considering the same issue of prayer for quashment of the entire proceeding raised by an accused by invoking inherent power, has proposed the following steps to determine the veracity of a prayer for quashment in paragraph 30 of the judgment, which are as follows:
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30. 1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be 8 wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
10. The question before this Court is whether the case of the petitioner comes under any of the seven categories enumerated in Bhajan Lal (supra) or in the three categories as held in R.P. Kapur (supra) or within the four steps as provided in Rajiv Thapar (supra)? 11. I have gone through the F.I.R., the charge-sheet, the “Yellow Book” (enclosed with this criminal miscellaneous petition) and also the order taking cognizance and I find that when the shortage of the coal was found in Kustore area, this petitioner being the General Manager of the Area and other accused persons were charge-sheeted on the basis of the stipulation made in Clause 66(iv) of the “Yellow Book” wherein entire responsibility has been given to the General Manager besides other officials. I have examined Annexure-6, which is part of this criminal miscellaneous petition upon which the main emphasis has been laid by learned counsel for petitioner and it would be pertinent to mention here that it was a general office order issued by one Sudhir Das-the General Manager on 16.09.2008 and on the left side of the said office order, there is a hand-written endorsement but it is nowhere mentioned that who has made this endorsement. Obviously, it is addressed to all the General Mangers/C.G.M. Even if it be considered that this endorsement was made by the Director (Technical) of BCCL as argued but the questions remains that whether this office order will override the instructions incorporated in the Code for Uniform System of Maintenance, Control and Verification of Coal Stock for all subsidiaries of CIL i.e. the “Yellow Book”.
12. In the instant case, cognizance of offence has been taken under Sections 120-B and 409 of I.P.C. besides the provisions of Prevention of Corruption Act. For better appreciation, a reference of Section 409 of I.P.C. is necessary, which is as follows:
“409. Criminal breach of trust by public servant, or by banker, merchant or agent- Whoever, being in any manner entrusted with property, or with any dominion over property in his 9 capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
13. The essential ingredients of Section 409 of I.P.C. are (i) that the accused was entrusted with property in any manner or such property was in his dominion in his capacity of a public servant; and (ii) that the accused committed breach of trust in respect of that property. No doubt, the significant part of Section 409 IPC is dishonest intention on the part of the accused. An intention wrongfully to deprive the BCCL of the property for a time and to utilize the usufruct of that part of the shortage of coal would be sufficient to show the criminal breach of trust. In this case, after investigation, the charge-sheet has been submitted showing a shortage of coal to the tune of 3,02,246.121 MT and the value of the above shortage comes to around Rs. 54 Crores. Apparently, the petitioner along with other accused persons were responsible for the maintenance, control and verification of coal stock, which clearly indicates that there is a strong prima facie case against the petitioner to proceed and it cannot be merely a civil wrong in terms of Clause 66(iv) as submitted by the learned counsel for the petitioner. I find that there are sufficient materials on record for the continuance of the criminal proceeding against the petitioner. The court below while taking cognizance dated 12.04.2013 has gone through the entire case record, materials available and statement of witnesses in the case diary and finding sufficient materials against the petitioner took cognizance of offence. So, there is absolutely no evidence on record except Annexure-6 (a general order) in favour of the petitioner and nothing very cogent has been argued or brought before this Court that even if trial is allowed to proceed against the petitioner at the culmination thereof, it would be impossible to record a finding of the guilt against this petitioner or other accused. 10 14. Undoubtedly, judicial process should not be an instrument of oppression or needless harassment and the court should be circumspect and judicious in exercising the inherent power but it is equally true that while considering the case for quashing of the criminal proceeding, the court has only to see the prima facie materials available on record as collected by the police during investigation. The court is not concerned with the fine niceties of the defence rather the court is primarily concerned with the allegation taken as a whole whether they constitute an offence or not and also the fact that the continuation of the criminal proceeding would amount to an abuse of the process of Court leading to injustice? I have said in the preceding paragraphs that prima facie, there appears to be sufficient materials on record to proceed against the petitioner. The evidences collected during investigation are not be weighed and appreciated at this stage as is done at the trial.
15. The Hon‟ble Supreme Court in the case Rajiv Thapar (supra) considering the exercise of jurisdiction under Section 482 of Cr.P.C. held in paragraph-28 as follows:
“28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.“ 16. In view of the above discussion, I do not find that the case of the petitioner either comes within the purview of seven guidelines fixed in the case Bhajan Lal (supra) or in the categories as laid down 11 in the case R.P.Kapur (supra) or within the four steps as provided in the case Rajiv Thapar (supra) and I have no hesitation in holding that it is not the stage for determining how weighty the defences raised on behalf of the petitioner. Even if the petitioner is successful in showing some suspicion or doubt, over the allegation levelled by the prosecution, it would be impermissible to quash the entire criminal proceeding before trial without giving any opportunity to the prosecution to adduce evidence to substantiate the same.
17. Hence, I do not find any plausible ground to interfere in this case exercising the inherent power of this Court. Accordingly, this criminal miscellaneous petition is dismissed. However, the petitioner shall be at liberty to raise all related questions at an appropriate stage during trial. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 7th September, 2016 Ritesh/F.R.