INDRAJIT MAHANTY, J. CRLMC. NO.1960 OF 2009 (Decided on 06.09.2011) SIBA NARAYAN PATNAIK ……….Petitioner. .Vrs. STATE OF ORISSA ……….Opp.Party. CRIMINAL PROCEDURE CODE,1973 (ACT NO.2 OF 1974) - Ss. 239, 482. For Petitioner - M/s. S.S.Das, S.Modi, S.S.Pradhan & K.Behera. For Opp.Party - Mr. P.K.Pani A.S.C (Vigilance) I. MAHANTY, J. The present application under Section 482 Cr.P.C. has been filed by the petitioner-Siba Narayan Patnaik, who is working as D.G.M., Mechanical in the Office of the M/s Orissa Mining Corporation (O.M.C), Bhubaneswar seeking to quash the criminal proceeding against him in T.R. Case No.3 of 2009 pending before the learned Special Judge (Vigilance), Balasore. 2. Mr. S.S. Das, learned counsel appearing on behalf of the petitioner submits that neither the F.I.R. nor the statements of the witnesses gathered by the prosecution at the time of investigation, implicated the petitioner in commission of any offences, though charge sheet has been submitted against the petitioner and others under Sections 418, 420, 120-B of I.P.C. read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act. It is further asserted by the learned counsel for the petitioner that the petitioner has no connection with the alleged offences and has no role to play in any loss that may have suffered by the M/s Orissa Mining Corporation (O.M.C). 3. At the very outset, Mr. S.S. Das vehemently asserts that the petitioner had been nominated by the appropriate authorities as a member of the committee to “scrutinize the tenders received from different parties regarding A.M.C. of Dumpers at Daitari”. In this context the petitioner has attended a meeting of the said committee on 19.1.2001 and made a recommendation on 23.1.2001 under Annexure-3 to the writ petition. The said document is extracted herein below: “THE ORISSA MINING CORPORATION LIMITED (A GOVERNMENT OF ORISSA UNDERTAKING) CHROME ORE BENEFICIATION PLANT. SOUTH KALIAPANT. No.110/OMC/COBP/2001 Date: 23.01.2001 TO The Dy.General Manager (Materials) O.M.C. Limited, Bhubaneswar. Sir, Please refer your letter No.34769 dtd.21/22.12.2000 on scrutiny of tenders from different parties regarding AMC of Dumpers at Daitari. We have studied the concerned file containing tender schedule, tender and commercial bid of different tenders. The observation of members of the committee are as follows:- The Tenderers are as follows:- 1. M/s. Tarini Sundicate, Baliparbat. 2. M/s. Sea Craft Marine Services, BBSR. 3. M/s. New India Supply Agency, BBSR. The Committee observed that M/s. Maa Tarini Syndicate, Baliparbat is not capable to take up the AMC as they have only mentioned regarding some retired persons of OMC those who have not done any work combindly at any place. We feel they are not suitable for the purpose. However, the party has valid Labour Licence and its own EPF Code Number. M/s. Sea Craft Marine Services, BBSR has submitted their organization chart, plant and Machineries but it is not known whether they can do AMC of the Dumpers as the Committee feels that they are unknown to Mining Machineries. So it is suggested that the party may be called again by the higher management to examine their experience in Mining line before finalizing the contract. Further the party may be advised to submit their valid Labour Licence. M/s. New India Supply Agency, BBSR has submitted the profile of their organization in which they have mentioned that they are having sufficient knowledge in OMC and they are able to do maintenance of the Dumpers of Daitari. They are also having professionals those who have previously worked at Daitari Mines & particularly they are having experience in Mining Machineries. The Committee feels that they may be able to take up AMC successfully but, before finalizing the tenders they may be advised to submit their man-power and plant and machineries to take up the above jobs before final consideration. They may be advised to submit the valid Labour Licence and up to date Sale Tax clearance. It is suggested before finalizing the contract that M/s. New India Supply Agency & M/s. Sea Craft Marine Services may be called against for negotiation though we found the New India Supply Agency is having slightly edge over M/s. Sea Craft Marine Services regarding taking up AMC of Dumpers at Daitari. This is for favour of your information & further needful action. Yours faithfully, 2 Sd/-23.1.2001 SR.MANAGER(MECH.) C.O.B.PLANT.” 4. Learned counsel for the petitioner submits that the petitioner was no longer involved in the selection of successive bidder or in the award of any contract thereafter. Hence, it is strongly urged that since the petitioner neither involved in the selection of the tenderers nor in the award of work, no allegation of causing financial loss to O.M.C. could be attributed to the petitioner but it is reiterated that the petitioner is only involved as a member of the Tenders Scrutiny Committee. Apart from that, placing reliance on annexure-3, learned counsel for the petitioner asserts that the Tenders Scrutiny Committee had recommended two parties namely, M/s. Sea Craft Marine Services, Bhubaneswar & M/s. New India Supply Agency, Bhubaneswar and has disqualified M/s. Tarini Syndicate, Baliparbat for the reasons noted in Annexure-3. Finding M/s. Sea Craft Marine Services, Bhubaneswar as well as M/s. New India Supply Agency, Bhubaneswar technically competent, they are recommended to the higher management to call the respective bidders to provide evidence of their experience of servicing Dumpers involved in mining before finalizing the contract. 5. In the present case, the F.I.R. was lodged by one Anil Kumar Dash, Inspector of Police, Vigilance, Keonjhar on 19.12.2005 before the Superintendent of Police, Vigilance, Balasore Division, Balasore implicating five persons (not the present petitioner) on the allegation under Sections 420, 120-B I.P.C. read with Section 13(2) and Section 13(1)(d) of the P.C. Act. The essence of the allegation contained in the F.I.R. was that M/s. O.M.C. had engaged eleven numbers of Dumpers at Daitari Mines for raising and transportation of iron ore inside the mining. But the services of those dumpers were not satisfactorily utilized because of frequent breakdowns and lack of proper maintenance and shortage of technical personnel at Daitari. It is further averred that M/s. O.M.C. in order to keep their Dumpers in good operating order, decided to award only maintenance contract to an outside agency on the basis of an open tender. Accordingly, sealed tenders were invited vide Tender No.1 of 2000/01 and pursuant to such tender call notice, three tenderers namely, M/s. Tarini Syndicate, Baliparbat, M/s. Sea Craft Marine Services, Bhubaneswar and M/s. New India Supply Agency, Bhubaneswar has submitted their bids. A Technical Committee was constituted to consider the technical bid of the tenderers and such committee while rejected the tender of one M/s. Tarini Syndicate, recommended the other two bidders for consideration by the higher management and for finalization of the contract. It is further averred that after the Tenders Scrutiny Committee concluded its deliberation, another committee was constituted to scrutinize and consider the bids of the remaining two bidders. In the said committee the petitioner was not a member and this second committee has recommended M/s. New India Supply Agency, Bhubaneswar in preference over M/s. Sea Craft Marine Services, Bhubaneswar purportedly on the ground of better experience. Further, the case of the prosecution was that on perusal of the document submitted by the bidders, M/s. Sea Craft Marine Services was more capable and trustworthy than M/s. New India Supply Agency and accordingly, the prosecution concluded that the second committee had shown undue official favour by recommending the name of M/s. New India Supply Agency. Hence, the charge of conspiracy was leveled against those members of the Tender Committee namely, Sri 3 Madhusudan Das, D.G.M. (Materials), Sri Gagan Bihari Pradhan, D.G.M. (Geo), Dhiren Kumar Dhal and Udayan Ray, Partner of M/s. New India Supply Agency. 6. The F.I.R. story further reveals that various transaction which took place between M/s. O.M.C. and M/s. New India Supply Agency including various bills raised and payments made ultimately alleging therein that an excess amount of Rs.21,11,628/- had been made in favour of M/s. New India Supply Agency. Mr. Das, learned counsel for the petitioner submits that the present petitioner namely, Siba Narayan Patnaik was member of the original technical committee which was approved by the letter dated 21.12.2000 (Annexure-2) of the D.G.M.(Mat.) along with two other officers. In view of Annexure-2, the said committee was required to scrutinize the technical and commercial offers along with all the members of the committee and “prepare a report with their views and observations”. This Tender Scrutiny Committee concluded its responsibility by submitting its report dated 23.01.2001 under Annexure-3, where the case of both M/s. Sea Craft Marine Services and M/s. New India Supply Agency were recommended to the higher management and only the tender of M/s. Tarini Syndicate, Baliparbat was found to be technically deficient. In the said report, the higher management was also requested to call upon the parties to provide further evidence of their experience in mining line and also to seek further evidence of their manpower, plant and machineries as well as to submit the valid Labour Licence and up to date Sale Tax clearance. This committee in its conclusion states that in their view, the offer of M/s. New India Supply Agency had a slight edge over M/s. Sea Craft Marine Services. Yet the committee had left to the higher management to call both the parties for negotiation and finalization of contract. After this stage the management constituted another committee, with the approval of Managing Director, to award the contract of annual maintenance and the petitioner had no role to play neither in the said committee nor in its decision to ultimately award the contract in favour of M/s. New India Supply Agency, Bhubaneswar. 7. Mr. P.K. Pani, learned Additional Standing Counsel for Vigilance Department submits that the investigating agency had taken over all the records of M/s. O.M.C. relating to the said tender of award for A.M.C. of Dumpers at Daitari Mines and on perusal of the said tender papers, the investigating agency has found that M/s. Sea Craft Marine Services, Bhubaneswar was more capable than M/s. New India Supply Agency, Bhubaneswar, in whose favour the job was awarded, for various reasons noted in the investigating officer’s report. He further asserts that M/s. New India Supply Agency were paid in excess of Rs.21,11,628/- and the M/s. O.M.C. had also failed to charge penalty which was leviable there upon for their inability to perform up to expectation. He further asserts that the very object behind the award of maintenance to an outside source was totally lost since the period of break down which was expected to be reduced was in fact not reduced but enhanced, thereby causing further loss to the Company. Mr. Pani, learned Additional Standing Counsel for Vigilance Department placed reliance on a judgment of the Hon’ble Supreme Court in the case of K. Neelaveni v. State Rep. by Insp. Of Police & Ors. (2010) 46 O.C.R. (SC) – 75 and advanced his contentions that, the present application for quashing of the criminal proceeding filed by the accused-petitioner, even before the investigation has been concluded and charge sheet is filed, ought not to be entertained. He further submits that this Court ought not to interfere with the matter at a stage even before the Magistrate examining as to whether 4 the accused persons deserve to be discharged in terms of Section 239 of the Code of Criminal Procedure. In the said case the Hon’ble Supreme Court has observed as follows:- “10. It seems that accused persons approached the High Court for quashing of the charge sheet even before any order was passed by the Magistrate in terms of Section 190 of the Code of Criminal Procedure. In our opinion, when a report is submitted to the Magistrate he is required to be prima facie satisfied that the facts disclosed therein constitute an offence. It is trite that the Magistrate is not bound by the conclusion of the investigating agency in the police report i.e. in the charge sheet and it is open to him after exercise of judicial discretion to take the view that facts disclosed in the report do not constitute any offence for taking cognizance. Quashing of Sections 406 and 494 of Indian Penal Code from the charge sheet even before the exercise of discretion by the Magistrate under Section 190 of the Code of Criminal Procedure is undesirable. In our opinion, in the facts and circumstances of the case, quashing of the charge sheet under Sections 406 and 494 of the Indian penal Code at this stage in exercise of the power under Section 482 of the Code of Criminal Procedure was absolutely uncalled for. 11. It is relevant here to state that offences under Sections 406, 494 and 498A are triable by a Magistrate, First Call and as all these offences are punishable with imprisonment for a term exceeding two years, the case has to be tried as a warrant case. The procedure for trial of warrant case by a Magistrate instituted on a police report is provided under Chapter XIX Part A of the Code of Criminal Procedure, 1973. Section 239 inter alia provides that if upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It seems that the accused persons even before the case had reached that stage filed an application for quashing of the charge sheet under Section 406 and 494 of the Indian Penal Code. In our opinion, the High Court ought not to have interfered after the submission of the charge sheet and even before the Magistrate examining as to whether the accused persons deserved to be discharged in terms of Section 239 of the Code of Criminal Procedure. 12. There is yet another reason which the High Court ought to have considered before quashing the charge sheet under Section 406 and 494 of the Indian Penal Code. All the offences are triable by Magistrate and quashing of the charge sheet under Section 406 and 494 of the Indian Penal Code had not resulted into exonerating the accused persons from facing the trial itself. Matter would have been different had the offences under Sections 406 and 494 of the Indian Penal Code been triable as sessions case. In matter like this the High Court ought to have allowed the provisions of the Code of Criminal Procedure referred to above its full play.” 5 8. After hearing learned counsel for the respective parties and noting their contentions, it is ascertained that the present petition seeking a direction for quashing of the criminal proceeding, was filed on 17.6.2009. Although the order of cognizance was passed by the Special Judge (Vigilance), Balasore on 17.2.2009 after taking note of the charge sheet No.11 dated 30.6.2008 for the alleged offence under Section 418, 420 & 120-B I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, but the stage of framing of charges has not yet reached. Therefore, keeping in view the judgment of the Hon’ble Supreme Court in the case of K. Neelaveni (Supra), I am of the considered opinion that the ends of justice would be best served if the accused-petitioner is granted liberty to file an appropriate application before the trial court under Section 239 Cr.P.C. seeking discharge, at the appropriate stage of the trial and on such application being filed, the trial court shall do well to consider and dispose of the same expeditiously on its own merit without in any manner being influenced by any observation made herein. 9. Accordingly, I am not inclined to entertain the present application at this stage and the same stands disposed of in terms of the direction noted hereinabove. Application disposed of. 6