IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1008 of 2009 and Cr.MP(M) No.1009 of 2009 Date of decision: 24.11.2009 1. Cr.MP(M) No. 1008 of 2009 Bhagat Ram …. Petitioner Vs. State of H.P. ….. Respondent _________________________________________________________ 2. Cr.MP(M) No. 1009 of 2009 Shiv Chand ..Petitioner Vs. State of H.P. ….Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner(s) : Mr. Anand Sharma , Advocate. ( in both the petitions) For the Respondent : Mr. A.K.Bansal, Addl. Advocate General with Mr. R.P.Singh, Asstt. Advocate General ( in both the petitions) Kuldip Singh, Judge. (Oral) Cr.MP(M) No. 1008 of 2009 has been filed by Bhagat Ram and Cr.MP(M) No. 1009 of 2009 has been filed by Shiv Chand, under Section 438 Cr.P.C. for releasing them on bail in Whether the reporters of the local papers may be allowed to see the Judgment? yes 2 FIR No. 8 of 2008 registered on 27.8.2008 at Police Station, State Vigilance and Anti-Corruption Bureau, Kullu under Sections 420, 120-B, 201 IPC and Section 13 (2) of the Prevention of Corruption Act, 1988. Both the petitions are being disposed of by common judgment. The status report has been by the respondent in each petition. 2. Heard and perused the record. In Cr.MP(M) No. 1008 of 2009, It has been submitted on behalf of the petitioner that petitioner had been working as Junior Assistant in the office of Nagar Panchayat, Manali and he retired in July, 2009 as Junior Assistant. The allegations in the FIR are wrong, incorrect. The petitioner is innocent, he has committed no offence. It has been alleged that in March, 2004 some material was purchased. The consumable items have been used and non-consumable items are still lying in the stock. The orders were placed by way of tender through publication and many contractors had participated. The rate contract of Suresh Kumar was lesser for certain items. On the basis of recommendations of the President, Vice-President etc., contractor supplied the material which was entered in the Stock Register by Shiv Chand. 3. The two cheques were issued against the material received and submission of bills by the contractor. These cheques were issued on the basis of sanction of bills by the then Secretary as well as President and after receipt of sanction from higher officials. The petitioner had prepared one cheque amounting to Rs. 4,38,830/-. The other cheque was prepared by Shiv Chand after 3 receipt of sanction. After the preparation of the bills, the cheques were placed before the Secretary as well as President, Nagar Panchayat, Manali for their signatures. After verification by the President and the Secretary, they signed the cheques, which were given to contractor. The petitioner has not played independent role for making payment to the contractor through cheques. The entry of cheques and bills has been made in the Cash Book and stocks were verified in the year 2008 and were tallied. 4. In 2004, audit party conducted the audit and no ambiguity was found by the audit team as the bills and cheques were found in the record. The complaint has been lodged due to rivalry between previous administration and the present administration. The petitioner has no concern whatsoever with the record as it remains with the Secretary and the President. The role of petitioner in the whole episode is that he had issued a cheque against bill which was duly sanctioned by the President, thereafter signed by Secretary as well as President. He had no independent power to sanction the same in the capacity of Junior Assistant. The proceedings have been initiated against the petitioner after five years without any basis. The petitioner had filed a bail application before the learned Special Judge, Kullu which has been dismissed on 12.11.2009. The petitioner is ready to join the investigation. No recovery is to be made from the petitioner, he is ready to furnish bail bonds. In Cr.MP(M) No. 1009 of 2009 Shiv Chand has taken almost same grounds for granting him bail under Section 438 Cr.P.C. as have been taken by 4 Bhagat Ram in Cr.MP(M) No. 1008 of 2009. Shiv Chand, Clerk is still in service. 5. Both the bail applications have been opposed by Mr. A.K.Bansal, learned Additional Advocate General. In the status report it has been stated that President, Vice-President etc. Nagar Panchayat, Manali, lodged a report and thereafter ultimately FIR was registered at State Vigilance and Anti-Corruption Bureau, Kullu on 27.8.2008. It has been stated that previous Secretary Shiv Singh Sen in the year 2003-04 had purchased medicines worth Rs.8,27,000/- from Suresh Kumar, contractor, but bill No. 604 amounting to Rs. 3,88,570/- was not found in the record, rather it is missing from the record. Suresh Kumar, contractor had been paid Rs. 4,38,830/- without any bill by previous Secretary and concerned officials. Suresh Kumar was not registered seller. Previous Secretary Shiv Singh Sen, bill Clerks Bhagat Ram and Shiv Chand mis-used their official position and caused pecuniary loss to the Government worth Rs. 4,67,652/- In this way, previous Secretary Shiv Singh Sen, bill Clerks Bhagat Ram and Shiv Chand have committed offence punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 and Section 201 IPC. The contractor and owners of the firms have committed offence punishable under Sections 420, 120-B IPC. 6. As per the investigating agency in the year 2004 the previous Secretary Shiv Chand, Nagar Panchayat, Manali had purchased some medicines as per tender and placed supply orders. Suresh Kumar in all supplied the medicines worth Rs. 8,27,000/- to Nagar Panchayat, Manali and issued bill No. 604 dated 10.3.2004. 5 First bill was for Rs. 3,88,570/-. On the basis of this bill, officiating Clerk Shiv Chand prepared the payment order which was submitted by Junior Assistant Bhagat Ram to Nagar Panchayat. Bhagat Ram obtained sanction for payment of said bill and made payment to Suresh Kumar through cheque. It has come during investigation that Bhagat Ram had not obtained original bill amounting to Rs. 4,38,830/- from Suresh Kumar but prepared voucher of Rs. 4,38,830/- for sanction and ultimately made the payment to Suresh Kumar. The audit was conducted in the year 2006 of Nagar Panchayat, Manali and the irregularities committed by the then Secretary Shiv Singh Sen were highlighted. The original bills amounting to Rs. 3,88,570/- and Rs. 4,38,830/- are not in the record. It was the duty of Bhagat Ram, Junior Assistant and Shiv Chand, Clerk to keep the record in safe custody. Both of them are not coming out with true facts. The bail applications have been opposed by the State on the ground that original bills are yet to be recovered. The learned Additional Advocate General has submitted for dismissal of both the bail applications. 7. I have considered the submissions made by the learned counsel for the parties. The prosecution case is that Suresh Kumar, contractor had supplied material worth Rs. 8,27,000/- to Nagar Panchayat, Manali and the payment was made to contractor, even though, original bills of the contractor were not on record. The further case of the investigating agency is that previous Secretary, Shiv Singh Sen and both the petitioners in conspiracy with each other made the payment to the contractor. On the contrary, it has been 6 submitted on behalf of the petitioners that it is not the case of the investigating agency that petitioners independently were competent to sanction the bills and they made payments to the contractor. The petitioner Shiv Chand is only a Clerk and is still working whereas the petitioner Bhagat Ram, Junior Assistant, has retired in July, 2009. It is not the case of the investigating agency that for some pecuniary benefit, the petitioners had made payments to the contractor. The allegations against the petitioners at this stage are that they helped in making the payments to contractor, even though original bills of the contractor were not on the record. The petitioners have submitted that cheques were issued on the basis of sanction of bills by the then Secretary as well as President and after receipt of sanction from the higher officials, the cheques were signed by President and Secretary. The petitioners had no independent role for payment of cheques. The record remains with the Secretary as well as President. It is not the case of the investigating agency that petitioners are not co-operating in the investigation. The supplies were made in the year 2004, FIR was registered on 27.8.2008. Bhagat Ram petitioner had retired from service, Shiv Chand is only a Clerk. It appears that the case of the prosecution is mainly based upon record which has been taken into possession except the bills in dispute. 8. In these circumstances, the petitioners have made out a case for grant of bail under Section 438 Cr.P.C. Accordingly, both the petitions are allowed. Both the petitioners in the event of arrest in FIR No. 8 of 2008 registered on 27.8.2008 at Police Station State Vigilance and Anti-Corruption Bureau, Kullu under Sections 420, 120- 7 B, 201 IPC and Section 13 (2) of the Prevention of Corruption Act, 1988, are directed to be released on bail on their furnishing personal bonds in the sum of Rs.20,000/- each with one surety each of the like amount to the satisfaction of the Arresting Officer with the conditions that both the petitioners shall join the investigation as and when called by the Investigating Officer and shall not hamper the investigation and tamper with the prosecution evidence in any manner. 9. The observations made in this judgment are for disposal of these applications only and shall not be treated as expression of opinion on the merits of the case. Copy Dasti ( Kuldip Singh) Judge. November 24, 2009. (GR) 8 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) No. 1009 of 2009. Date of decision: 24.11.2009 Shiv Chand ..Petitioner Vs. State of H.P. ….Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? For the petitioner : Mr. Anand Sharma , Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General with Mr. R.P.Singh, Asstt. A.G. Kuldip Singh, Judge (oral). For judgment, see judgment of date rendered in Cr.M.P(M) No. 1008 of 2009 titled Bhagat Ram vs. State of H.P. ( Kuldip Singh) Judge November 24, 2009. (GR)