IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27307 of 2009 PRAWEEN KUMAR, SON OF LATE BAIDAYNATH PRASAD, RESIDENT VILLAGE- GOPALPUR, POST OFFICE- PAINGRI, POLICE STATION- WARSALIGANJ, DISTRICT- NAWADA, AT PRESENT EXECUTIVE ENGINEER, PATNA WEST BUILDING DIVISION, DANAPUR, PATNA. ----- PETITIONER Versus THE STATE OF BIHAR THROUGH VIGILANCE DEPARTMENT, PATNA. ----- OPPOSITE PARTY For the Petitioner :- Mr. Sanjay Singh, Advocate Mr. Upendra Kumar Singh, Advocate For the Vigilance Deptt.:- Mr. Rakesh Kumar, I/C Spl. P.P., Vigilance Mr. Prabhu Narayan Sharma, J.C. to I/C Spl. P.P./Vigilance ----------- 3 20.8.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the Vigilance Department. This application has been filed for quashing the entire proceeding with respect to Special Case No. 12 of 2009 arising out of Vigilance P.S. Case No. 18 of 2009 instituted under Sections 420, 467, 468, 471, 477(A), 109 and 120B of the Indian Penal Code, 1860 and 7/8/13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. One Raju Yadav a contractor filed a complaint before the Vigilance Department as well as before Gopal Prasad (also accused in this case) alleging that the Bill of Quantity which was advertised on 2.3.2009 vide annexure-2 was not being supplied to the contractors and that the Bill of Quantity was issued by the Executive 2 Engineer to a particular contractor in order to favour him. The Bill of Quantity was to be made available on 12.3.2009 at 1 p.m. to 13.3.2009 at 3 p.m. The Vigilance Department conducted an enquiry and reached the office of the Executive Engineer where they found that the entire office was empty and apart from class III and IV employees none else was present. The Vigilance team also found that one Daya Shankar Upadhyay was present in the office and he was carrying certain files of the Government allegedly to the house of the Executive Engineer to get his signature. These files relate to several B.O.Qs. The files belonged to the department and the Vigilance team came to know from the employees that the Executive Engineer works from his residence and does not attend the office. It is alleged that the Chief Engineer-cum-Superintending Engineer along with the Executive Engineer and others are responsible for committing the offences aforesaid in order to cause loss to the Government treasury. The petitioner in this case is the Executive Engineer. It has been submitted by Mr. Sanjay Singh, counsel appearing on behalf of the 3 petitioner that the contents of the First Information Report and the case diary in fact do not make out any offence against the petitioner. The first objection on behalf of the petitioner is that the entire case has been instituted on a complaint lodged by Raju Yadav and Ramashray Singh; both of them are contractors and were not granted contracts in the past and as such they are motivated in filing the complaint petition. With respect to Ramashray Singh it is specifically stated that the petitioner had recommended against him for black listing vide Memo No. 2959 dated 20.11.2008 as contained in annexure-5/2 and it is, therefore, submitted that the reasons for lodging the complaint are obvious. Apart from this learned counsel submits that the petitioner was at the time when the First Information Report was instituted performing the work as an Executive Engineer in the Tax Division at Patna vide Government Memo No. 7708 dated 9.8.2007 and also was Incharge of the Construction Division at Patna vide Memo No. 1284 dated 5.3.2009 which would explain the reason as to why the petitioner was not present on 12.3.2009 at his office in Danapur. According to the counsel appearing on behalf of 4 the petitioner the First Information Report does not in fact disclose that any Bill of Quantity was sold on 12.3.2009 and it is accordingly stated that the entire enquiry conducted by the Vigilance Department has been made on the basis that they apprehended that offence is about to be committed. Referring to the allegations made in the concluding portion of the First Information Report which are that the (i) N.O.C. was not sealed (ii) that the time given for purchasing the B.O.Q was between 10 a.m. to 1 p.m. on 12.3.2009 (iii) that the N.S.C. was in the possession of a contractor whereas it should have been kept safe at the office (iv) two B.O.Qs. one in the mame of Shashi Bhushan Upadhyay and other in the name of Daya Shankar Upadhyay were found in the possession of Daya Shankar Upadhyay and (v) that on the paper on which the B.O.Qs. were to be sold the statements of the Cashier, Accountant and Estimate Officer were taken by the team of the Vigilance Department inspecting the office on 12.3.2009. The submission is that on the basis of the aforesaid allegations, no offence under Sections 420, 467, 468 and 471 of the Indian Penal Code are made out against the petitioner and the 5 Vigilance Department ought to have considered whether the allegations as specified above are make out a case which involves any criminal intention, deception or forgery. In fact submission is that the petitioner had issued a letter from camp office which would indicate that the B.O.Qs. could not be sold on 12.3.2009 as they were not ready and as such even at the very initial stage it cannot be alleged that the petitioner had committed any anomaly in the sale of the B.O.Qs. in question. Learned counsel for the Vigilance Department has strenuously argued that Daya Shankar Upadhyay was carrying files which ought to have been in the sale custody of the Executive Engineer’s Office and as such this would indicate that there was some sort of conspiracy between the petitioner and Daya Shankar Upadhyay. In reply it is submitted that on the basis of this fact the First Information Report could not have been lodged as there may be some explanation with respect to why Daya Shankar Upadhyay was in possession of files. Moreover the files do not relate to the sale of B.O.Qs and no criminal offence is made out even if this fact is accepted, 6 as such the First Information Report has been filed to harass the petitioner and he would have to face the rigors of the criminal case for the next 10 to 20 years without there being any actual cause for holding that the petitioner was involved in criminal conspiracy or had committed offences under Sections 420, 467, 468, 471, 477(A), 109 and 120(B) of the Indian Penal Code or in fact under Section 7/8/13(2)read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Learned counsel for the petitioner has also relied on a letter issued by the State Government as contained in annexure-6 wherein a guideline has been issued to all Government Officers with respect to lodging of criminal cases. The State Government has suggested that when the Government Officers are sought to be made accused in criminal cases, then the authorities should apply their mind and see whether allegation of corruption is involved in the alleged act. It has also been suggested that the criminal cases should be lodged after consultation with the higher authorities in the Department i.e. the Secretary of the Department so that the Government servants should not unnecessarily be harassed 7 there should be assessment whether actually the acts committed by the alleged officers would come within the purview of a departmental proceeding or whether a case is made out involving any type of loss to the State Government. Learned counsel appearing on behalf of the Vigilance Department submits that the investigation of the case is at an initial stage and while investigating the case, the authorities will no doubt to take into consideration all aspects of the matter before filing a charge sheet. It is expected that the Vigilance Department would in fact look into the documents and also look into the materials that have been seized by them and ascertain whether in fact a criminal offence is made out specially in view of the fact that if there are no anomaly in settlement or allotment of contracts a mere complaint case from a man who is an interested party as he also wants the Government contracts would in fact make a mockery of the system and also take into consideration that B.O.Qs. were not sold on the alleged date of the occurrence. The entire matter has to be judged taking into account 8 the fact that the complaint is lodged by an interested party. It also appears that the documents etc. which have been seen are not related to the complaint which has been filed by the contractors Raju Yadav and Ramashray Singh. Nevertheless this Court find that it would not be proper for this Court to interfere at this stage and quash the First Information Report as the matter is still under investigation and there is a possibility that the Vigilance Department may come to the conclusion that the case made out in the First Information Report is not supported by any documents. It would be open for the petitioner to present all the materials presented before this Court to the Investigating Agency personally or through a courier so that they may have a proper view of the entire gamut of facts arising in this case. Besides several of the documents are in this file which should also be considered before the Vigilance Department submits a charge sheet/final form. This application is thus disposed of with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)