IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24839 of 2007 Khagendra Kumar, Son of Late Mahadeo Thakur, Resident of Hinoo, P.O. Hinoo, P.S. Doranda, District Ranchi. -------- Petitioner Versus 1. State of Bihar. 2. The Superintendent of Police, Rohtash. 3. Cabinet Vigilance Department, through Dy. Secretary, Old Secretariat, Patna. -------- Opp. Parties ----------- 24 4.2.2010 Heard counsel for the petitioner as also counsel for the State and the Special Public Prosecutor appearing on behalf of the Vigilance Department. In this application under section 482 of the Code of Criminal Procedure filed on 24.5.2007 a prayer has been made for quashing of the First Information Report of Sasaram P.S.Case No. 601/1991 dated 4.12.1991 which has been lodged for offences under sections 420, 468, 471 and 120B of the Indian Penal Code and Section 5 of the Prevention of Corruption Act. The said case at present being renumbered as Special Case No. 85/1991 is pending before the Special Judge, Vigilance, Patna. Counsel for the petitioner has submitted that the said First Information Report should 2 be quashed because the petitioner was exonerated in course of a departmental proceeding pertaining to the same allegation. Reference in this connection has also been made to the judgment of Jharkhand High Court dated 5.8.2005 in W.P.(S) No. 6087/2004. Counsel for the Vigilance Department has submitted that the prayer made in this application is not only misconceived but also appears to be a well calculated device of the petitioner to keep the trial pending on one pretext or the other. In this connection, he has submitted that there was no question of now quashing the First Information Report, inasmuch as the police after investigation of the criminal case arising out of the impugned F.I.R. has already filed its charge sheet way back in the year 2002 vide charge sheet no. 352/2002 dated 10.12.2002 for offences under sections 420, 467, 468, 471, 120B/34 of the Indian Penal Code and section 5 of the Prevention of Corruption Act. In the opinion of this Court, this application is absolutely frivolous. The petitioner seems to be a veteran litigant, who 3 has got sufficient time and money to indulge in filing frivolous litigations. Probably, he has the feeling that if the courts could not keep a track of its earlier orders, he may some time become successful in duping the courts. He probably also believes that the legendary story of King Bush and the Spider is not a fiction but a fact. The records of this case by itself would go to show that after the First Information Report relating to a large number of illegal appointment by the petitioner and the other officers of the Education Department came to the notice of the Additional District Magistrate, Rohtas at Sasaram, he had got an enquiry conducted and it was found that the petitioner holding the post of Sub-divisional Education Officer in league with Mr. K.N.Sharma, the then District Education Officer, Alim Jang Khan, the concerned dealing Clerk in the office of the District Education Officer in league with other Headmasters of the Project School under Rohtas District had made appointment of more than hundred clerks and peons by not only flouting the Government 4 order as with regard to appointment on the post of Clerk/Peons in such Project School but also by manufacturing and forging the official documents. The detailed written report of the Doman Singh, the then Additional District Magistrate dated 2.12.1991 which forms the basis of the First Information Report on the face of record makes out a direct and clear case of cheating and forgery. Thus, when the police had already filed the first charge sheet against the petitioner and two other accused persons, way back in the year 2002, the matter should not have allowed to linger by the trial court. As noted above, the police after completion of investigation had found sufficient materials for filing of the charge sheet and the matter was thereafter referred to the State Government for according sanction of prosecution against the petitioner who is a Member of Bihar Education service. The State Government had also accorded such sanction on 9.7.2002 and a copy of such sanction order was also forwarded to the Superintendent of Police by the Education Department on 22.9.2002. The 5 police, as noted above, thereafter had filed its charge sheet on 10.12.2002 whereafter the Special Judge, Vigilance by his order dated 11.12.2002 had taken cognizance for offence under sections 420, 467, 468, 471, 120B/34 of the Indian Penal Code and section 5 of the Prevention of Corruption Act. If the police had taken eleven years in completing the investigation and filing a charge sheet against the petitioner, it was now the turn of the petitioner to take equal time if not more in allowing the trial to be completed. In his such bid he had filed an application Cr. Misc. No. 10398 of 2003 under section 482 of the Code of Criminal Procedure for quashing the order of sanction dated 9.7.2002, the consequential communication dated 22.9.2002 and the order taking cognizance dated 11.12.2002. This Court as with regard to the prayer for quashing the order taking cognizance had in its order dated 4.12.2003 in Cr. Misc. No. 10398 of 2003 had held as follows: “ So far as the first ground is concerned, the law is well settled that at this stage, the Court will quash the 6 prosecution if the allegations do not constitute any offence or there is legal bar or the allegations are absurd and unbelievable. The materials show that the F.I.R. contains allegation against the petitioner with regard to his hand in making selection in breach of the rules for pecuniary gain and at this stage it cannot be said that any ground is made out to quash the prosecution.” This Court in fact by the same order had also repelled the challenge to the order granting sanction of prosecution as with regard to which it was held that merely because the petitioner’s services were transferred to the State of Jharkhand on account of bifurcation of the State and re- allocation of his service to the State of Jharkhand that by itself would not take away the power of the State of Bihar to accord sanction of prosecution, inasmuch as the entire occurrence between 1988 to 1991 had taken place in the district of Rohtas which was part of the State of Bihar. Additinally it was also held that in the year 2002 when the sanction was accorded the petitioner was allocated the State of Jharkhand only on provisional basis and no final order of the 7 Central Government in terms of Section 72 of Bihar Re-organization Act had been passed. The said order dated 4.12.2003 having been allowed by the petitioner to become final, the trial should have proceeded but then once again the petitioner had moved this Court by filing another application under section 482 Cr.P.C. being Cr.Misc.No. 4372/2004 for the same relief and this Court by an order dated 25.8.2004 had again dismissed the aforesaid second petition of the petitioner. The petitioner then made another attempt before this Court by filing a criminal writ application, Cr.W.J.C. No. 694/2005 on the ground that his trial was not being concluded. This Court had disposed of the said criminal writ application on 5.1.2006 by directing the trial court to conclude the trial within six months from the date of framing of the charge. The present case is the fourth round of litigation which, as noted above, was filed on 24.5.2007 by the petitioner and that too for quashing of the First Information Report at the stage when his aforesaid three 8 applications had yielded no fruitful result and at least the F.I.R. by itself had lost its importance on account of filing of the charge sheet and the order taking cognizance already affirmed by this Court. Such prayer of quashing the F.I.R. was, however, conveniently given up by the counsel for the petitioner and the order of this Court dated 5.1.2006 in Cr.W.J.C.No. 494/2005 was now made a plank by the petitioner that the trial against him was not concluded within six months. Counter affidavit had been filed by the Vigilance explaining that the trial against three persons including the petitioner against whom charge sheet was submitted on 10.12.2002 could not proceed on account of death of one of the accused and in absence of confirmatory report regarding such death. At this stage counsel for the petitioner by filing reply to the counter affidavit of the Vigilance Department took a plea that another co- accused, Shiwadhin Prasad had also died. On such statement this Court had directed for verification and submission of the death report in the court below within a period of 9 two weeks as would be apparent from the order dated 17.8.2007. Thereafter the Vigilance Department had made its enquiry and had found that the petitioner had tried to mislead this Court by giving a false information as with regard to the death of the co-accused Shiwadhin Prasad. On 3.1.2008 a report was also called for from the trial court as with regard to the reasons for delay in framing of charge. When the report dated 13.7.2007 of the trial court was received by this Court counsel for the petitioner had started taking adjournment and also avoiding the Court and accordingly, this Court by an order dated 20.10.2008 had dismissed this application for non-prosecution by recording as follows: “ No one appears to press this application when it is called out. From perusal of the order sheet, it appears that ever since the report from the Special Judge, Vigilance, Patna was received in this Court on 13.7.2007 the learned counsel for the petitioner has been taking time and thereafter as many as four adjournments were taken. On 17.8.2007 a reply to the counter affidavit was filed on behalf of the petitioner when it was stated that co- accused Shiwadhin Prasad has died, but 10 there was no statement regarding the death with respect to said Shiwadhin Prasad in the counter affidavit filed on behalf of the Vigilance or the State. On that date, the matter was deferred for verification till receipt of death report, but thereafter again from 3.9.2007 as many as 10 adjournments were sought. Since no one appears to press this application, the same is dismissed for non-prosecution.” Subsequently by an order dated 11.2.2009 in Cr.Misc.No. 2441/2009 this application was restored and had been placed before me. As noted above, now the only plea taken by the counsel for the petitioner for quashing of the First Information Report, the solitary relief sought for in this application, is that since the petitioner has been exonerated in the departmental proceeding and Jharkhand High Court has also quashed the departmental proceeding pertaining to the same allegation of illegal appointment in Project School against the petitioner this Court should also quash the F.I.R. This Court on perusal of undated document, contained in Annexure 4, would find 11 that the charges against the petitioner in the departmental proceeding was framed on 15.4.1992 but there is no enquiry report to show that the departmental proceeding was conducted against the petitioner. There is only a communication of one Girish Narayan Dubey, the Deputy Secretary, addressed to the Secretary of the Vigilance Department, that the charges against the petitioner were not found to be proved. This communication dated 13.5.1993 was well within the knowledge of the petitioner when he had moved this Court seeking the relief of quashing of the order taking cognizance but he did not press the same as is apparent from the order of this Court. In fact after the services of the petitioner were temporarily placed in the State of Jharkhand, the State of Jharkhand had initiated the departmental proceeding and a departmental proceeding was also conducted wherein the Enquiry Officer had submitted his enquiry report on 5.7.2004. From the enquiry report it would appear that in course of enquiry the main file relating to appointment in Project School of Rohtas District was not 12 produced before the Enquiry Officer. The Enquiry officer in fact had to proceed only on the basis of the report of Doman Singh, the Additional District Magistrate, Rohtas and the order of the Law Department of the State of Bihar according sanction of prosecution against the petitioner. The Enquiry Officer somehow had recorded that in absence of the documents and proof the role of the petitioner could not be substantiated but surprisingly the same Enquiry Officer on the basis of the same documents had held that all the acts of irregularities and corruption in the appointment in Project School were committed by the District Education Officer, Rohtas. It, thus, becomes clear that it was a self serving enquiry report and at least on the basis of the same the Government of Jharkhand had also not exonerated the petitioner. This aspect becomes clear from the judgment of Jharkhand High Court dated 5.8.2005 in W.P.(S) No. 6087/2004 which was filed by the petitioner against the memo of charge dated 5.3.2004. The learned Single Judge of Jharkhand High Court in fact in 13 paragraph 1 of the judgment has himself narrated that though the writ petition was filed for quashing of the departmental proceeding and the memo of charge, the petitioner had himself made a prayer that the enquiry report dated 5.7.2004 should be accepted for his exoneration. It, however, appears that during the pendency of the aforementioned writ application the State of Jharkhand had rejected the enquiry report dated 5.7.2004 and had directed for holding of a fresh departmental proceeding by memo No. 603 dated 5.3.2005 and the petitioner had again assailed this order initiating the departmental proceeding in the same writ application by filing an amendment petition. The learned Single Judge has proceeded to hold that the successive enquiry against the petitioner was not permissible. While this Court would not readily accept the reasonings given by the learned Single Judge of Jharkhand High Court, this much becomes clear that the petitioner was never exonerated in the departmental proceedings on merits. The inter-departmental 14 communication dated 13.5.1993 is not a Government order which can show that any departmental proceeding was held. It only in talks of holding some enquiry and informing the Vigilance Department of the result of such enquiry. As a matter of fact there seems to be full justification in the stand of the State of Jharkhand, as noted in the order of the learned Single Judge, that no departmental proceeding in the State of Bihar was conducted and only an explanation was called for as to why the departmental proceeding should not be initiated for inflicting major punishment. Be that as it may, there being no document on record to show that the charges against the petitioner were gone into in a threadbare manner in a duly constituted departmental proceeding, this Court would find it difficult to accept the submission of the learned counsel for the petitioner that the F.I.R. should be quashed on the ground of exoneration of the petitioner in the departmental proceeding. The F.I.R., as noted above, even otherwise cannot be quashed now when the 15 charge sheet on the basis of that very F.I.R. has already been filed leading to an order taking cognizance and this Court has already rejected the prayer of the petitioner for quashing the order taking cognizance based on such charge sheet by an order dated 4.12.2003 in Cr.Misc.No. 10398/2003. Even otherwise it is well settled that an First Information Report can be quashed if on its perusal no offence can be said to have been made out. A defence of an accused cannot be taken into consideration for the purposes of quashing of the F.I.R. Here this Court has already recorded while rejecting the prayer of the petitioner for quashing of the order taking cognizance that there are sufficient materials in the F.I.R. to constitute the offence under sections 420, 467, 468, 471, 120B/34 of the Indian Penal Code and section 5 of the Prevention of Corruption Act. Thus, this Court following the ratio of the Apex Court in the case of J.A.C. Saldhana vs. the State of Bihar, reported in AIR 1980 S.C. 326 and the State of Bihar & anor. vs. Shri P.P.Sarma & anor., reported in AIR 1991 S.C. 16 1260, would hold that the prayer of the petitioner for quashing the F.I.R. is wholly misconceived. Before parting with this Court would find that the trial court in its two reports dated 29th June, 2007 and 7th February, 2008 had informed that the charges would be framed on 18.2.2008. If the charges have already been framed on 18.2.2008 the order of this Court dated 5.1.2006 in Cr.W.J.C.No. 694/2005 had to be also complied which had directed for concluding the trial within six months from the date of framing of charge. This Court, however, could not be made aware by the counsel for either of the parties as to the present stage of the trial but then as the counsel for the petitioner has pressed the present application for quashing of the First Information Report this Court has to accept that the trial is still pending. If that be so, the trial court, the Special Judge, Vigilance I, Patna, must take this case on priority basis for its expeditious disposal preferably on day to day basis in keeping with the earlier direction of this Court. 17 The Vigilance Commissioner, Bihar also must take all possible steps to collect the evidence and produce, both oral and documentary, before the court of Special Judge, Vigilance I, Patna in all promptitude so that the fate of this two decade old prosecution gets settled one way or the other. The Principal Secretary and the Secretary of Human Resources Development Department, Bihar would also be under obligation to ensure that whatever evidence is required for prosecution i.e. Cabinet Vigilance Department, is made available without any delay. With the aforementioned observation and direction, this application is dismissed. Let a copy of this order be sent to the court below, Special Judge, Vigilance I, Patna as also to the Vigilance Commissioner and the Principal Secretary of Human Resources Development Department for its strict compliance. Rsh/Surendra. (Mihir Kumar Jha, J.)