EN T`HE HIGH COURT OF SIK¥¢gHM CgrfrminlReviston No. 5 o ZOOS Shri Nan Bahadur Bhandari, S/o Late Shri Balaram Bhandari, 6th Mile, Tadong, East District, Sikkim. '''. Pctitioner Versus State (represented by the C.B.I) Through the Director, Central Bureau of Investigation, C.G.O. Complex, Lodhi Road, New Delhi -110 003. ..„ Respondlent Criminal. Revision No. 1 o ZOOS Shri S.D. Tamang, Contractor, S/o Shri N. P. Tamang, Resident of Singtam, East District, Sikkim. '''' Petitioner -`:S±:-*.i Versus State of Sikkim, Through C.B.I. Crimlnaz Revision No. 2 o .... Respondent ZOOS Shri Sriniwas Agzowal, S/o Chandu Lal Agarwal, Resident of Jorethang, South Sikhim. Versus State of Sikkim, Through C.B.I. .... Petitioner .... Respondent €F` Can:in_1r.ctlRevision No. 3 o ZOOS Shri Sonaln Wangdi Bhutia, S/o Norbu Tshering Bhutia, Resident of mandong, East Sikkim. Versus State of Sikkim, Through C.B.I. Criminal Revision No. 4 o .... Petitioner .... Respondent ZOOS Shri Norbu Tshering Bhutia, S/o Shri Naga Bhutia, Resident of Thangsing, East Sikkim. Versus State of Sikkim, Through C.B.I. Crininat Revision No. 6 o ®®'® Pettttoner .... Respondent ZOOS Shri Minzur Bhutia, S/o Shri T. Tshering Bhutia, Resident of Singyang, P.O. Felling, East sikkim ..... Petztf oner Versus State (represented by the C.B.I.) .... Responc!ent a ct9; i.``_. i.¥ Crimfnc.I Revision ZOOS Shri A.B. Gurung, is/o Ram Bahadur Gurung, Resident of Kaluk, Sikkim.....Petitioner Ver8u8 State (represented by the C.B.I.) .... Respondlent Criwinat Revision No. 10 o ZOOS Shri Puma Kumar Pradhan, The then Secretary, Rural Development Department, Government of Sikkim, Sichey Busty, Gangtok, Sikkim '®®® Petitioner Versus State (represented by the C.B.I.) .... J!esponc!ent Present : Mr. Milon Kumar Mukherjee, Senior Advocate with Mr. Bhaskar Raj Pradhan, Advocate for the petitioner Mr. N.B. Bhandari. Mr. A.K. Upadhyaya, Advocate for the petitioners Mr. S.D. Tamang, Mr. Sriniwas Agarwal, Mr. Sonarn Wangdi Bhutia and Mr. Norbu Tshering Bhutia. Mr. P.K. Pradhan, Mr. Minzur Bhutia and Mr. A.B. Gurung petitioners in Person. 69. Mr. I.D. Veld, Special Public Prosecutor, CBI, along with Mr. Vipin Kumar, Inspector, CBI, New Delhi in person for the respondent. Date of Arguments : 28th March, ZOOS. 28th April, ZOOS. 29tb April, ZOOS. 30tb April, ZOOS. Date of Judgment : 1.t May, ZOOS. Coram: Tm*_a_ ¥.on'.Pt.a ¥.r. U_ust}.ce Fipusudan Dayal, Chiof Uustiee. The Hon'ble Mr. Justice N.- Sur]ancul -Si;gh, JdiJ:. JUDGMENT __---__- PAYAL CL AIl these Criminal Revisions have been riled to challenge the Order dated 15.11.2002 by the learned Special Judge, P.a. Act, Sikkim at Gangtok in Criminal Case No. 8/ 1997 ordering the framing of charge against the petitioners. RC-8/84-CIU-(A) was registered by SP/CBI CIU- (A), New Delhi on 7.8.1984 at 1610 hrs. against Shri Nar Bahadur Bhandari, former Chief Minister of Sikkim, Shri P.K. Pradhan, the then Secretary Rural Development Department, Government of Sikkim, Gangtok, M/s. Kumar Traders, Jorethang, Sikkim and others under section 1208 f,at`! f\ -S,. IPC read with section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947. The investigation resulted in the riling of the charge sheet on 14.9.1994 by Shri a. Verma, Dy. SP/CBI/SPB/ACU(V)/New Delhi against 17 accused persons. Two of them namely, accused No. 3 H.P. Karki and accused No. 16 Shri N.P. Bhandari died before the impugned order of charge was passed by the learned trial Court and so, the proceedings were dropped against them. Against the remaining 15 accused persons, order of charge was passed by the learned Special Judge by the impugned order. Eigp,i of them have riled these petitions. i.i.l`LS •+#¥*.±.+" 4fro'/ 3. Prosecution case, in brief, is that the Government of Sikkim during the year 1983-84 took a decision to implement 36 Rural Water Supply Schemes in the State of Sikkim under the Minimum Needs Programme at a cost of Rs.1,62,31,630/-, through a cabinet decision dated 24.11.1983. In the said decision, it was specirically mentioned that the works worth more than Rupees one lakh shall be carried out by issuing tenders except for the North District. The works worth less than Rs.llakh were to be executed through panchayat nominees. The approval of the cabinet was communicated to the Secretny, Rural Development Department for necessary action vide Memo No. 1168/CAB/83 dated 7.12.1983. Pursuant to that decision, i Oap tr_< . - • ,11. the Rural Development Department issued notice inviting sealed tenders from enlisted contractors having resources and I experience in such works for execution of the 15 Rural Water Supply Schemes in East, South and West districts of the State including the following 12 schemes in which investigation was conducted by the Central Bureau of Investigation : i) Rural Water Supply Scheme at Upper Tintek under Rakdong Gram Panchayat at East District. ii) Rural Water Supply Scheme at Malbasey under Malbasey Gram Panchayat, West District. iii) Rural Water Supply Scheme at Upper Raley and Khasey within Samdong Kambel Gram Panchayat in East District. iv) Rural Water Supply Scheme at Zemng within Berfung, Zerung Gram Panchayat in .South District. v) Rural Water Supply Scheme at Biring under Eiring within Linkey Thekabung Gram Panchayat Unit in East District. vi) Rural Water Supply Scheme at Samdong under Samdong Gram Panchayat in West District. Rural Water Supply Sch5me at Sadam under Sadam Gram Panchayat in South District. viii) Rural Water Supply Scheme at Khamc]ong Gram Panchayat, Khamdong, East District. i ix) Rural water supply scheme at patuk under simik Linzey Gram Panchayat in East District. x) 13ural water supply scheme at Budang Thangsing within Khamdong Gram Panchayal in Bast District. xi) Ri:rat water supply scheme at pachak under East Pendam Gram Panchayat in East District. xii) Rural Water Supply Scheme at Singyang in West District. 6ei The said tender notice was published on 19.12.1983 fixing 18.1.1984 as the last dat? for the receipt of the tenders. It was mentioned in the tender notice that the contractors who were residents of the villages where the Water Supply Schemes were to be implemented were to be given preference. In response to the said tender notice, various te:iders were received in the Rural Development Department of the ( Government of Sikldm and the same were opened on 18.1.1984 by the Tender Committee. Then followed the preparation of comparative statements in respective riles of each scheme showing the rates quoted by each tenderer. Prosecution case is that the statements showed that the eligible contractors in different schemes had offered to `j execute the respective work at a rate much below the approved rate. Some or the contractors had even quoted 20% I below the approved rate. When the matter was thus being processed, accused No. 1, Shri N.B. Bhandari, the tr}en Chief Minister oftsikkim, and accused No. 2, Shri P.K. Pradhan, the then Secretary, Rural Development Department, Government of Sikkim in connivance with each other entered into a criminal conspiracy to issue work orders in favour of the contractors/accused Nos. 3 to 17 for the execution of the above 12 Schemes for which quotations had already been received in the ofrice and the riles were being proceeded to award work in the names of the lowest tenderers. In furtherance of their common object, accused No. 2 in consultation with accused No. 1, issued the work orders in the names 'of the contractors who had not quoted the lowest rates ignoring the recommendations of the officers .of the concerned department for awarding the contract work to the lowest tenderers. Thus, by awarding contract work in favour of the contractors who quoted higher rates, accused Nos. 1 and 2 caused pecuniary advantages to the rest of the accused ersons with corresponding pecuniary loss to the State of 4. On 27.2.1995, the learned trial Court observed: "Seen the written report riled by the Prosecution stating that M F\ J¥'. on verification by the I.0. the accused was found to be dead. Since the death is conrirmed the case against him stands I abated." Subsequently, an application dated 26.7.2002 was filed by accused No.1 Shri N. a. Bhandari stating I.riter all.cz `t that Shri N. P. Bhandari had died on 17.7.1977 and praying for a direction to the I.0. to enquire as to the exact date, month and year of death of Shri N. P. Bhandari. Thereafter, reply was filed by Shri Vipin Kumar, Inspector, ACU (V) dated 5.10.2002 to the effect that the verirication conducted by the I.0. had revealed that accused No.16 Shri N. P. Bhandari had died sometime in July/August, 1977 and that he had neither submitted the tender nor executed the work nor received the payments and the proceedings against him also abated much earlier vide Order dated 27.2.1995. It was further stated in S. the reply that verification had further revealed that actually Shri Nand,prani Bhandari the real brother of late. N. P. Bhandari "used his card of contractor-ship, forged his signature in the tender documents and other documents related to this scheme, by impersonating as N. P. Bhandari and cheated the department by getting the contract and receiving the payments. He also cheated the I.0. by impersonating before him as N. P. Bhandari," for which a separate charge-sheet will be filed. Prayer was made to the effect that the permission may be accorded to conduct further E i REu a . a.i 10 investigation for probing the role of N. M. Bhandari which will I be without prejudice to the case under trial lt was also 1 stated that the "evidence with respect of Scheme No.11 may kindly be deleted." On 4.10.2002, the learned trial Court recorded the submission of the learned Public Prosecutor that entire Scheme No.11 "be not considered in the present case and the record relating to the same be deleted" and accepted the same. While referring to this scheme, the leaned trial Court in the impugned order has stated that "Shri N. P. Bhandari having expired the offence against him stood abated." The omission to mention that the record relating to the schemejhad stood deleted vide his order dated 4.10.2002 does not militate against the fact that this scheme has been . deleted altogether in this case. This fact is`qdmitted by the learned counsel for the petitioner, Shri Milon Kumar Mukherjee and also by the learned fublic Prosecutor, Shri I. . D. Vaid. 5. The learned trial court considered the material on record in order to find whether pn.rna /act.e there was sufficient material to frame charges against the accused persons. He referred to the material on record with respect to I each scheme individually and then observed : "19. The facts and circumstances mentioned in the foregoing paragraphs indicate that Sri N.B. ©.ds Bhandari, accused No. 1 and accused No. 2 Sri P.K. Pradhan abusing their ofricial positions as the Public Servants connived with the rest of the accused persons and awarded the contract works of eat;h scheme to them discarding the legitimate claims of each lowest tenderer and caused loss to the State with corresponding pecuniary advantages to the concerned accused persons. It is seen that in each scheme lowest tenderer had not been awarded the work but the work order was issued in the name of other persons solne of whom had not even submitted their quotations being not eligible to execute the work. All the official norms and procedures have been ignored. Although the defense contended that one of the conditions in the NIT authorized the competent authorities to give preference to a local tenderer the case of the prosecution is that in the instant case even some of the local tenderers have been ignored and the contract works have been awarded to the favorites of accused No.1. a:;ou:.t¥.osfE:!er?.E.DKD°,£rhala%¥tha:e¥a&:?eanw=edn£!n°: contract works to the contractors other than the contractors who quoted the lowest rate without any valid reason is against the rinancial rules. In all the schemes the work has been entrusted to persons who have not quoted the lowest rate. Prosecution doculpents reveal that the .lowest tenderers were willing to execute the work but Shri P.K. Pradhan accused No. 2 at the instance of accused No. 1 Shri N.B. Bhandari negotiated with rest of the accused persons and awarded work in their favour despite the fact that the State cabinet fiad taken the decision that these Rural Water Supply Schemes shall be executed through oper} tender. 2h]; geLnd;rfef:onns:£t:::n* 8a:: t:regeNd]Tthea±pSo£::: competent authority to reject any tender without assigning any reason, there has been no 1;r::gt[£=i9 oT::w::t t::ed¥er:fwe£:[ee¥¥!etgtedw=: the authorities concerned awarded the contract work to. accused persons by giving valid reasons. 1.. ®.ds lJ The reason behind incorporating such c:lause in the NIT is to provide safe guard to the Department for rejecting unqualified or disputed and defective tenders. In the instant case quotations Qf the lbwest tenderers were accepted and the department.in its normal course of business have recommended for the award of work to such. lowest tenderer. ` 22. Interference of accused No.1 Shri N.B. Bhandari in the ofricial process, entertaining request of the tenderer who had not quoted the ; lowest rates or of those person who did not even submit the quotations and ordering accused No. 2 Shri P.K. Pradhan to award contract work to them despite the ofricial recommendations to award work to the lowest tenderer is an act of abuse of official position., Therefore, accused No.1 and 2 both being public servants are responsibl'e for offences of Criprinal Miscondhct U/S 5(2) read with See.5 (1)(d). of Prevention of Corruption Act, 1947 corresponding to See. 13(2) read with See. 13(d) of P.C. Act, 1988. 23. The offence of Criminal conspiracy involves meeting of minds of two or more persons agreeing to do or causing to be done an illegal act in terms, of such agreement. Therefore, direct evidence to prove the offence of criminal conspiracy is rarely available. The court has ,to draw inference from the established facts. The Ld. counsel for the. accused No. 1 have submitted that except in one or two instances there is no evidence to show that the accused No. 1 had even met accused No. 2 and directed him to award the work to particular persons. 24. The role played by the accused No. 1, Sri I\T.B. Bhandari is that he recorded note for awaJ-d of work to Shri H.P. Karki (since deceased). It is also on record that accused No. 2 Shri P.K. Pradhan on 13.2.1984 wrote in his note that he discussed the matter with H.C.M. i.e., accused No.. 1. In respect of Water Supply Scheme at Malabasey accused No. 1 Shri N.B. Bhandari marked the request of the accused Nos. 4 to 8 dated 6.12.1983 to Shri P.K. Pradhan accused No. 2 for awarding the work in their favour. Similarly 13 . _ s he had also marked the request letter of accused mos. 4 to 8, which is dated 18.I.1984 to Chief Engineer for awarding the work to Sri T. Tshering on their behalf. In the rile D.9 there is a note of Shri P.K. Pradhan accused No. 2 to the effect, "Discussed with HCM today. Please, issue work Q,rder as already ordered at page 10 after settling the rate with N.P. Tamang." In the file relating to Samdong water Supply Scheme there is an endorsement of accused No.1, " Please, put up with the comparative statement.» In respect of Water Supply Scheme Patuk, in rile D.15 page 47 there is a note of Sri N.B. Bhandari accused No. 1 addressed to Secretary, Rural Development Department i.e. accused No. 2 to put up the file after tender. Besides this there are witnesses who implicate accused No. 1 Sri N.B. Bhandari in connection with other schemes. Statement of P.W. 27 Sri T.T. Bhutia implicate Shri N.B. Bhandari accused No. I in respect of scheme - Zerung. Statement of P.W. 13 and 14 implicate accused No. 1 in respect of Water Supply Scheme at Biring. Statement of P.Ws 15 implicates Shri N.B. Bhandari accused No. 1 in respect of Water Supply Scheme - Sadam. Statement of P.W. 28 Shri C.D. Bhutia implicates Shri N.B. Bhandari frc:tue:esu¥;.]yLsfcnh:ems::.CtofBudangandsingyang xxx xxx xxx zen XXX- 27. While considering the material on record to rind out whether there is a prima facie case the Court is not required to make roving enquiry and evaluate the materials metitculously so as to test the veracity of the prosecution case. It is now settled by the decisions of the Apex Court that the truth, veracity and the effect of evidence which the prosecutor proposes to adduce at the time of trial is not to be meticulously weighed in the sensitive balance and the charge has to be framed if there are groun'ds for presuming that the accused person has committed the offence. If the facts emerging from the record taken at face value d.iscloses prima facie case the `charge can be ff!Bamed. At this stage if strong suspicion arises 14 that there is ground for presuming that the accused persons have committed offence as fat:tg:E=¥e:h£: tpor:See:rui°end.then the law requires 28. Facts. and circumstances as noted earlier make out a prima facie case against all the accused persons U/S. 1208 of IPC and further U/S.5(2) read with Section 5(1)(d) bf P.C. Act, 1947 corresponding to Section 13(2) read with See. 13(1)(d) of P.C. Act, 19`88 against accused No. 1 Sri Nar Bahadur Bhandari and accused No. 2 Sri P.K. Pradhan. Hence, to come for framing of charges U/S 1208 IPC against accused No. 4 Sri Nar Bdr. Rawat, accused No`. 5 Sri Harka Singh Chawan, accused No. 6 Sri Hari Prasad Rat, accused No. 7 Sri R.B. Subba, accused No. 8 Sri Hari Prasad Sharma, accused No. 9 Sri S.D. Tamang, accused No. 10 Sri Bhim Baliadur Gurung, accused No. 11 Sri Sriniwas Agarwal, accused No. 12 Sri Chetan Das Ghimiray, accused No. 13 Sri A.B. Gurung, accused No. 14 Sri Norbu Tshering Bhutia, accused No. 15 Shri Sonam Wangdi Bhutia and accused No. 17 Sri Minzur Bhutia and also under Sec.5(2) read with .~Sec.5(1)(d) of P.C. Act, 1947 corresponding to See. 13(2) read with See.13(1)(d) of P.C. Act, 1988 against accused Nos. 1 Sri Nar Bdr. Bhandari and Accused No. 2 Sri P.K. Pradhan." It would appear. that though in paragraph 28 the learried trial Court had observed that there was a pn.mcz/czc.I.e case against all the accused persons under section 1208 of I.P.C., he, at the same time, stated that charge under that section was to e framed against accused Nos. 4, 5, 6, 7, 8, 9,10,11,12, 3, 14, 15Tafld 17 and omitted to mention the names of accused NQs. 1 and 2. It is apparent that the omission was by in`advertence and if charge under that section / 0 6 . ft- 15 has to be. framed pursuant to this order, the. charge is to be framed against accused Nos. 1 and 2 also under that \ section. 6. 6 . ff? We have heard the learned counsel for the parties. The main arguments were urged by Mr. Milon Kumar Mukherjee, Senior Advocate, who advanced arguments on behalf of the petitioner Shri N.B. Bhandari. Learned counsel appearing for the other petitioners supported him. On behalf of the State Mr. I.D. Veld, the learned Special Public Prosecutor, C13I made arguments. F`ollowing points were urged on behalf of the petitioners : (i) The learned trial court has directed the framing of the charge of conspiracy. under section 1208 simpliciter and not to commit offences punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards and so the court could not take cognizance of the offence of criminal conspiracy 't without the consent of the State Government as per the provision of sub-section (2) of section 196 of the Code of Criminal procedure,1973 and since no such consent was given by the State Government to the initiation of the 16 6.g© rj Effl I proceedings under section 1208, cognizance could not be taken by the court, of the offence of criminal conspiracy ; (ii) The offences which were allegedly committed by the accused persons were committed prior to the coming into force of the Prevention of Corruption Act, 1988 and as such, the accused persons could not be charged with the offence punishable under section 13(2) rgad with section 13(1)(d) of the P. C. Act, 1988. (iii) FIR in the instant case was recorded under section 154 Cr. P. C. by the Superintendent of Police/CBI/CIU-(A), New Delhi which has not been declared to be a Police Station by the . State Government and as such FIR was not recorded by the Officer-in-Charge of a Police Station and so the FIR which was the basis of investigation Was not proper within the meaning of section 154 Cr. P. C. and as such 17 (iv) jh.r7ta/czct.e there is no sufricient material to frame charges against the accused persons. Notice inviting tender clearly stated that contractors who are residents of the villages where the Water Supply Schemes are being implemented would be given preference and also that the Department of Rural Department reserves the right to reject any of the tenders without assigning any reason therefor, and so rejection of the tenders which quoted lowest rates and award of work to those tenderers who had offered higher rates could not constitute material to warrant framing of charges against the accused persons. In a commercial transaction it is always open to the authority concerned not to accept the lowest bid. It was ¥rged on behalf of Shri N.B. Bhandari that. there was absolutely no noting from him on the riles of two schemes namely, (vii) and (xii). As regards point (i), it is true that under the provisions of sub-section (2) of section 196 of the Code of trBminal Procedure, 1973, Court cannot take 'cognizance of `;: .r offence of any criminal conspiraey under section 1208 of ., 6 . £in® -. .1,. `Sr:.._ tea:'`'.g:,5-~the Indian Penal Code, if the criminal conspiracy is simpliciter and not to commit an offence punishabl.e with e . `j;? 18 death, imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government or i the Distric`t Magistrate has consented in writing to the initiation of the proceedings. However, it would not be correct to say that the criminal conspiracy for which the accused persons have to be charged 'in the instant case is a conspiracy simpliciter. From the facts of the case and discussion in the order of the learned trial Court, it would appear that the criminal conspiracy for which the accused persons are to be charged is the criminal conspiracy to commit an offence punishable under section 5(2) read with section 5(1) (d) of the Prevention of Corrup.tion Act, 1947. It is true that the learned trial Court s¥sed the expression in paragraph 28 of the order that the facts and circumstances made out a pn.mc2/act.e case against all..the accused persons under section 1208 of the Indian Penal Code without specifically adding "read with. section 5(2) and section 5(1)(d) of the Prevention of Corruption Act, 1947, it is to be construed that the omission was inadvertent. When charge of criminal conspiracy is to be framed, the charge has to specify the offence punishable under section 1208 of the Indian Penal Co'de read with section 5(2) read with section 5(1)(d) of the Prevention of The offence under section 5(2) is hable with imprisonment, which may extend to seven 19 years and also to fine and as such no consent of the State Government or District Magistrate was required under section I 196(2) of the Code of Criminal Procedure. 8. 6 . AJnin© As regards point (ii), the impugned order of the learned trial court specifies that Shri N.B. Bhandari and Shri P.K. Pradhan committed the offence under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. It is submitted on behalf of the petitioners that the provisions of sec`tion 13 (1)(d) of the Act of 1988 are more harsh than the provisions of section 5(1)(d) of the Act of 1947 and, therefore, the petitioners