1 IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1138 of 2008. - - - - - - - SACHIDANAND SINGH s/o Late Ram Chandra Singh R/o Muzagali Narayan Shree Apartment, Block B1/402, Bailey Road, Sheikhpura, District Patna. . . . . .Petitioner. Versus 1.STATE OF BIHAR. 2.The Secretary, Water Resources Department, Government of Bihar, Patna. 3.The Principal Secretary, Vigilance Department, Government of Bihar, Patna. 4.The Addl. Director General, Vigilance Department, Government of Bihar, Patna 5.The Engineer-in chief, Technical Examination Cell, Government of Bihar, Patna. 6.The Chief Engineer, Water Resources Department, Government of Bihar, Anisabad, Patna. 7.The Executive Engineer, Technical Examination Cell, Government of Bihar, Barrfack No.3, Main Secretariat, Patna. . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . .Respondents. ----------- For the petitioner : Mr.Ashok Kumar Singh, Sr.Adv. Mr.Vivek Singh, Adv. For the Respondents: Mr.Rakesh Kumar, Spl.P.P.,Vigilance. Mr.Sunil Kumar Karn, A.C.to A.A.G.6. 8 14.07.2009 In this application, petitioner’s prayer is for an order to quash the FIR, to re-examine the calculation of earth work and to hold investigation into the offence by an independent agency. Vigilance P.S.Case No. 87 of 2008 was lodged for the offences under Sections 406, 409, 467, 468, 471, 477A and 120-B IPC as well as Sections 7, 8, 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act by the Deputy Superintendent of Police, Investigation Bureau, Patna against the petitioner, an Executive Engineer and 11 other 2 officials of the Department as well as Mother India Construction Pvt. Ltd. The allegation in the FIR was that on inspection it was found that a payment of Rs.21,02,500/- was made by the petitioner, without any actual earth filling work in Jamindari Bandh and this was done under a conspiracy giving rise to offence of misappropriation. It was alleged that the necessary work of dressing and turfing was also not done as a result of which there was risk of damage to the Bandh. The inspection report of the Vigilance Cell was made basis of the report for lodging the FIR. The Vigilance Report dated 29th September 2008 is at pages 125 to 138 of the brief. At page-12 of the report of inspection and calculation work it is reported that payment of a sum of Rs.21,02,500/- was made to the contractor without actual earth filling. In course of hearing it was pointed out by the respondents that the petitioner has also filed a separate civil writ under C.W.J.C.No. 16548 of 2008 challenging the inspection report of the Vigilance Cell. This is admitted by the petitioner that he has filed a separate writ being C.W.J.C.No. 16548 of 2008 but it is stated that it was filed before institution of the FIR. Learned counsel for the petitioner referred to the counter affidavit filed on behalf of respondent nos. 2 to 7. In Para-4(vi) of the affidavit it is stated that certain calculation and typing errors have cropped in, in the enquiry report and on re- checking of the quantity of earth work, deficit of work in 3 monetary terms of Rs.12,76,133/- was only found and, thus, there was actual misappropriation of this amount only, though at Para-18(A) of the counter affidavit it was further stated that after taking into account the royalty amount of Rs.3,72,405/- payable to the Government, the actual excess payment will come to Rs.9,03,728/-. But it is not explained specifically as to how this amount is to be deducted from the amount which was paid to the contractor when it had to be paid by the contractor to the Government. Annexure-5 to the I.A.No. 93 of 2009, filed by the petitioner is the letter dated 31st December 2008 of the Secretary to the Water Resources Department, Govt. of Bihar to the Chief Secretary, Government of Bihar. In this letter it is stated that in the investigation report which is the basis of lodging FIR some, errors have occurred, though, it is not denied in that letter that there was any misappropriation by way of excess payment but it is stated that only 60 per cent of contract amount is paid and rest 40 per cent payment is to be made in future and some security deposit of the contractor is with the department and, thus, if any adjustment of excess payment is to be made it can be made by way of adjustment in future bills. It is stated that in order to keep the moral of the Government Engineers up, it will be desirable to withdraw the prosecution. Thus, this letter is suggestive in form and it does not state about any actual or mathematical calculation to dislodge the allegations about commission of the offences. 4 On the basis of the materials that on subsequent verification and checking of the report of the Vigilance Technical Examination Cell, errors were found and the actual defalcation was reduced to Rs.12,76,133/- from initial allegation of misappropriation of Rs.21,02,500/- it was argued that the allegations have been made on conjectures and surmises. On these grounds it was argued that practically there is no basis for initiation of the FIR. But I fail to agree with the submissions of the learned counsel. No doubt, on subsequent verification and checking, some errors were found reducing the amount of criminal misappropriation, but still an offence is indicated and a case for further investigation remains. Learned counsel for the petitioner referred to his supplementary affidavit dated 8th April 2009 and he has made some of his own calculation in reply to the calculation made by the Vigilance Technical Cell and according to his calculation, there is no defalcation. But this is subject to verification and it will be examined in course of investigation. So far the question of quashing of the FIR is concerned, this can only be done when this Court comes to a finding that the allegations in the FIR do not make out a case of commission of any cognizable offence and the allegations are leveled maliciously and falsely. The materials on the record prima facie at this stage do not indicate like this, therefore, I do not find a case for quashing of the FIR. The next prayer as made by the petitioner is that the 5 investigation and the calculation work be done by an independent agency. From the record it appears that the inspection work and the subsequent verification and checking have all been done by the competent persons and they have also found and accepted bona fide errors occurring in the previous report and thereby in the subsequent checking and calculation report, the amount of defalcation is found to be reduced also. Any element of bias or mala fide is not found in these actions. The respondents argued that in this case there is no prima facie material in the FIR and the investigation is being done fairly and properly. Learned Special P.P. for the Vigilance Investigation Bureau cited the case of State of West Bengal Vs. S.N.Basak, reported in AIR 1963 SC 447 . At para-3 of the decision of the Supreme Court mentioned: “The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court’s functions being when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561A has given increased 6 powers to the court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act”. Section 561A of the old Criminal Procedure Code corresponds to Section 482 of the new Code of Criminal Procedure which deals with inherent powers of the Court. Since this application is under Articles 226 and 227 of the Constitution of India, the learned Special P.P. further refers to the case of Devine Retreat Centre .Vs. State of Kerala reported in 2008 Crl.L.J 189. In Para-35 of the decision, the Hon’ble Supreme Court held as follows: “It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is 7 clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.” Thus, it was held that the High Court cannot interfere into an investigation by directing as to in what manner or in which way the investigation has to be carried out. It can simply interfere with a purpose to see that the procedure of investigation, as provided under Criminal Procedure Code is adhered to. No instance is pointed out that any process or procedure as provided by Criminal procedure Code has not been followed by the investigating agency. Lastly, the learned Special P.P. refers to the case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604. In this case the Hon’ble Supreme Court laid down certain criteria for taking a decision as to whether an FIR or complaint is fit to be quashed or not. The criteria include the elements to indicate that the report and other materials accompanying the FIR do not indicate a cognizable offence or they indicate a non- cognizable offence in which no investigation is permitted by a Police officer, without an order of Magistrate or 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 or that there is any express legal 8 bar in the institution of the case or continuance of the proceedings or the criminal proceeding is manifestly attended with mala fide. On considering the materials on record of this case, I fail to find any of the elements as indicated in the decisions referred to above in order to enable this Court to quash the FIR. Therefore, this Court does not find it a fit case for quashing of the FIR, as prayed. So far as the petitioner’s prayer for entrusting the investigation and calculation work to an independent agency is concerned, I find no ground for allowing the prayer inasmuch as verification and investigation work having been done and are being done under due process of law and any kind of mala fide is not indicated. In such view of the matter, finding no merit in this application, it is dismissed. Jay/ (C. M. Prasad,J)