IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45660 of 2009 KHALID AZIZ SIDDIQUI, SON OF MD. YASEEN SIDDIQUI, RESIDENT OF VILLAGE+P.O. CHORWAR, P.S. KASAR, DISTRICT SHEIKHPURA. ---- PETITIONER Versus THE STATE OF BIHAR ---- OPPOSITE PARTY ----------- 2 23.2.2010 Heard the parties. The petitioner seeks to invoke the inherent power conferred under Section 482 of the Code of Criminal Procedure to this Hon’ble Court, for quashing the order taking cognizance dated 26.10.2009, against the petitioner, passed by the Special Judge, Vigilance-II, Patna in Special Case No. 12/2008 (arising out of Nigrani P.S. Case No. 21/2008). By the impugned order the Court below has taken cognizance against the petitioner along with others for the offences punishable under Sections 420/467/468/471/406/409/201/120 of the Indian Penal Code and under sections 7/8/13(2) read with u/s 13(1)(d) of the Prevention of Corruption Act, 1988. The facts are that the petitioner was allotted the work of repairing the Bhawan Pramandal Office, (First floor), Sheikhpura for a sum of Rs. 9,87,643/- by way of a contract dated 17.3.2007. It has been alleged against the petitioner in the First Information Report and the charge sheet that he has not used good wood (Sal) for the door and it is alleged that he used local wood. It is further alleged that the petitioner has not put the cistern in the bath room. The total amount of loss caused because of the use of the inferior wood is Rs. 30,000/- and it is said that some work which 2 would cost the petitioner Rs. 9,000/- is still left to be done, which involves some repair work of the toilet. Clause 13 of the amendment which is contained in annexure-3 reads as follows: If it shall appear to the Engineer-in-charge or his subordinate in-charge of the work that any work has been executed with unsound, imperfect or unskillful workmanship or with materials of any inferior description, or by any materials or articles provided by him for the execution of the work are unsound of a quality inferior to that contracted for at otherwise not in accordance with the contract, the contractor shall on demand in writing from the Engineer-in-charge specifying the inadaverentaly passed certified and paid for, forthwith rectify or remove and re-contract the work so specified, and provided other proper and suitable materials or articles at his own proper charge and cost, and in the event of failing to do so within period to be specified by he Engineer-in-charge in his demand aforesaid the contractor shall be liable to pay compensation at the rate of one percent on the amount of the estimate for every day not exceeding t en days while his failure to do so shall continue and in the case of any such failure the Engineer-in-charge may certify or remove, and re-execute the work or remove and replace with others, the materials or articles complained of as the case may be at the risk and expense in all respects of the contractor. From the agreement aforesaid it is apparent that if some work was found to be inferior or incomplete the Engineer-in-charge should have taken steps for getting the defects removed. It is apparent that in a case where there is a contract between the parties to do a particular work, it is required that they should follow the clauses of the agreement and fulfill those before taking any further steps in the matter. If the incubent concerned does not fulfill the requirements under the contract, it would have been open for the concerned authority to take action against the person concerned. In this case it is admitted that no recourse was taken to fulfill the conditions of the 3 contract as mentioned in clause 13 and thereby the petitioner was not aware of the fact that he had to further do any repair work or that his work was found unsatisfactory. It appears that on the basis of an inspection held in 2008 by the Executive Engineer, Superintendent of Police and D.S.P., Munger, the aforesaid defects were brought to the notice of the Superintendent of Police, Vigilance Department and on the basis of which this case has been instituted. Considering the facts of this case, I think it would be proper that the petitioner should be given an opportunity to remove the defects in terms of clause 13 of the contract. As such I direct the Executive Engineer, Building Division, Sheikhpura to ensure that the petitioner removes the defects as pointed out in the charge sheet of the aforesaid case within a period of three months on receipt of this order by the Executive Engineer, Sheikhpura. The institution of the criminal case it appears, does not take into consideration that there is a provision in the contract vis a vis the defects pointed out with respect to the petitioner’s work and has filed this criminal proceeding. In matters of this nature where there is a contractual obligation to perform a particular duty, the institution of a criminal case should be taken recourse to if the parties fail to fulfill their contractual obligations. In the result, I quash the order of cognizance dated 26.10.2009, passed by the Special Judge, Vigilance-II, Patna in Special Case No. 12/2008 (arising out of Nigrani P.S. Case No. 4 21/2008) as far as it concerns the petitioner. The Vigilance Department would have the leave to institute a case against this petitioner if he does not act in accordance with the directions of this Court. The Executive Engineer, Building Division, Sheikhpura should submit his report with respect to the work done by the petitioner within the aforesaid three months to the Vigilance Department. This application is allowed in the terms mentioned aforesaid. Sanjay (Sheema Ali Khan, J.)