IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.08.2009 CORAM THE HONOURABLE MR. JUSTICE G.RAJASURIA CRL.RC.No.368 of 2008 V.K.Agnihotri .. Petitioner / 1st Accused vs. Special CBI:ACB, Chennai Principal Special Judge of CBI cases, Chennai .. Respondent / Complainant Criminal Revision filed under Sections 397 and 401 of Cr.P.C., against the order dated 27.12.2007 passed by the learned Principal Special Judge for CBI Cases, Chennai in C.M.P.No.27 of 2004 in C.C.No.50 of 2004. For petitioner : Mr.K.Alagirisamy Senior counsel for Mrs.Sudharshana Sunder For Respondent : Mr.N.Chandrasekaran Special Public Prosecutror for CBI cases O R D E R Animadverting upon the order dated 27.12.2007 passed by the learned Principal Special Judge for CBI Cases, Chennai in C.M.P.No.27 of 2004 in C.C.No.50 of 2004, this criminal revision petition is focussed. 2. Compendiously and concisely, the relevant facts, which are absolutely necessary and germane for the disposal of this Criminal Revision petition would run thus: (i) The Deputy Superintendent of Police/SPE/CBI/ACB/Chennai laid the police report as against the following accused, viz., V.K.Agnihotri, N.Krithivasan, R.S.Narayanan, Sethuraman, P.Rajamoni, S.Ramasubramanian and S.Palani for the offences under Sections 120-B r/w 420, 467, 468, 467 r/w 471, 468 r/w 471 IPC and Section 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act 1988 and substantive offences under Sections 420, 467, 468, 471 IPC and Section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988. https://hcservices.ecourts.gov.in/hcservices/ (ii) A1, viz., Agnihotri, the revision petitioner herein filed Crl.M.P.No.72 of 2004 before the learned Principal Judge for CBI Cases under Section 239 of the Code of Criminal Procedure for discharging him from the case. (iii) Objection was filed on the prosecution side. (iv) After hearing both sides, the learned Judge dismissed the said application holding that there are materials available for framing charges as against the petitioner/A1 for the offences referred to as against him in the charge sheet filed by the police. (v) Inveighing such order dated 27.12.2007, passed by the learned Judge, this revision is focussed on various grounds, the gist and kernel of them would run thus: (a) No sanction for prosecution as contemplated under Section 197 of the Code of Criminal Procedure was obtained by the police. (b) The lower court failed to note the role of the General Manager in the Railways regarding granting of machinery advance as the General Manager (A1) is expected only to scrutinize the reports and recommendations of the Technical Committee/ Tender Committee and pass orders. (c) Out of the 7 Reaches, Reach I, II and III were awarded to A7 Palani on the basis of the lowest tenders offered by him. (d) The lower court failed to see that the seventh accused (A7) at the time of submitting his tender had requested for sanction of machinery advance of 10% of the contract value and the same was not rejected by the Tender Committee. (e) While conveying the acceptance, the tender committee informed the seventh accused (A7) Palani that the machinery advance would be sanctioned, if approved by the competent authority. (f) A1, performed his work within his jurisdiction and discretion and he had no role in the alleged conspiracy. https://hcservices.ecourts.gov.in/hcservices/ (g) Even though there was no material to frame charge as against the revision petitioner/A1, the lower court dismissed the Crl.M.P. 3. Heard both sides. 4. The points for consideration are as to:- (i) Whether the lower court without considering the materials on record and analysing the facts available in accordance with law, simply dismissed the Crl.M.P., even though there are no materials to frame charges as against the revision petitioner/A1? (ii) Whether the prosecution is bad for want of sanction under Section 197 of the Code of Criminal Procedure ? 5. At this juncture, I would like to point out that the learned Special Public Prosecutor for CBI cases filed a memo highlighting that after the dismissal of the said Crl.M.P., charges were framed as against A1 to A7 and that as against A1, the revision petitioner herein, charge of conspiracy was framed to the effect that A1 to A7 have committed the offence punishable under sections 120-B r/w 420, 467, 468 IPC and one other charge also was framed as against A1 to A4 and A6 to the effect that they have committed offence punishable under Sections 13(2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988; whereupon trial also commenced and P.Ws.1 and 2 were examined and cross examined by the some of the accused persons. However, A1 has not cross examined the witnesses so far. As such, highlighting the development and progress in the case, the learned Special Public Prosecutor for CBI cases would submit that as per the well established practice, once trial has commenced, the revision filed as against the order of dismissing the application under Section 239 of Code of Criminal Procedure has to be dismissed. 6. However, the learned Senior counsel appearing for the revision petitioner would submit that at the earliest point of time, soon after the dismissal of the said Crl.MP, A1/the revision petitioner approached this court with this revision and inasmuch as there was no stay, for no fault of the revision petitioner, the trial commenced. It is also the contention of the learned senior counsel for the revision petitioner that he has been ready all along but there was no fault on his part. 7. Be that as it may, now then the learned senior counsel appearing for the revision petitioner has expressed his desire to argue. 8. I am of the considered opinion that this Court has to hear him and the Special Public Prosecutor for CBI cases pass orders on merits. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned senior counsel for the revision petitioner has argued thus: The revision petitioner, being the General Manager, acted within his jurisdiction and in fact, the procedure in the Railways enabled him to act as he did in this case. Simply because, he reviewed his earlier decision, no mala fide intention could be imputed on him. Granting of machinery advance is well within the powers of the General Manager and that too after, getting the report from the technical committee he reviewed his decision. Earlier there was no positive response to the Tender Notification regarding Reach IV is concerned and hence, limited tender was called for and in that A7 Palani, an approved contractor having no black mark earlier, applied for the same and his tender was accepted. Inasmuch as, he came forward to supply machine crushed ballast instead of hand broken ballast, for the same rate, whereupon machinery advance was sanctioned and accordingly, it was granted. Absolutely, there is nothing wrong in the procedure adopted by A1. Granting machinery advance is within the scope of the procedures contemplated under the Railways and in the public interest alone A1 exercised his discretion. 10. Whereas the learned Special Public Prosecutor for CBI cases, by way of torpedoing and pulverising the argument as put forth on the side of the revision petitioner would set forth and put forth his argument that absolutely, there is no justification for interfering with the dismissal order of the lower court, as ex facie and prima facie, it is clear that even though in the tender condition, there is no scope for giving machinery advance, the Railway administration granted machinery advance and thereby unambiguously the accused exposed their intention to cheat the Railways. 11. The learned Special Public Prosecutor also cited precedents in order to buttress and fortify his stand that at the time of framing charges, the question of acquittal or conviction should not loom large in the mind of the court, but the court based on prima facie material should frame charges. 12. The learned Special Public Prosecutor, would cite the following decisions of the Hon'ble Apex Court. https://hcservices.ecourts.gov.in/hcservices/ (i) 2000 Supreme Court Cases (Cri) 311 (State of Madhya Pradesh vs. S.B.Johari and others). An excerpt from it would run thus: "6. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether the accused are guilty or not. It was done without considering the allegations of conspiracy relating to the charge under Section 120-B. In most of the cases, it is only from the available circumstantial evidence an inference of conspiracy is to be drawn. Further, the High Court failed to consider that medicines are normally sold at a fixed price and in any set of circumstances, it was for the prosecution to lead necessary evidence at the time of trial to establish its case that purchase of medicines for the Cancer Hospital at Indore was at a much higher price than the prevailing market rate. Further again non-joining of the two remaining members to the Purchase Committee cannot be a ground for quashing the charge. After framing the charge and recording the evidence, if the Court finds that other members of the Purchase Committee were also involved, it is open to the Court to exercise its power under Section 319 of the Criminal Procedure Code. Not only that, the Court erroneously considered the alleged statement of the manufacturing company that quotations given by M/s.Allied Medicine Agency, Indore were genuine without there being any cross-examination. The High Court ignored the allegation that many of the items have not been purchased and the amount is paid on bogus vouchers. Hence, there was no justifiable reason for the High Court to quash the charge framed by the trial court." (ii) 2000 Supreme Court Cases (Cri) 1486 (State of Delhi vs. Gyan Devi and others). Certain excerpts from it would run thus: "10. In a recent decision in State of M.P. v. S.B. Johari this Court, adverting to the question of quashing of charges in the light of the provisions contained in Sections 227 and 288, 401 and 397 and 482 CrPC did not favour the approach of the High Court in meticulously examining the materials on record for coming to the conclusion that the charge could not have been framed for a particular offence. This Court, while quashing and setting aside the order passed by the High Court, made the following observations: (SCC p.60, paras 3-4) https://hcservices.ecourts.gov.in/hcservices/ “After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against the respondents by accepting the contention raised and considering the details of the material produced on record. The same is challenged by filing these appeals. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial.” Judged in the light of the settled position of law as reiterated in the decisions noted above, the order under challenge in the present case does not stand the scrutiny. The High Court has erred in its approach to the case as if it was evaluating the medical evidence for the purpose of determining the question whether the charge under Sections 304/34 IPC framed against the accused-Respondents 1 and 2 was likely to succeed or not. This question was to be considered by the trial Judge after recording the entire evidence in the case. It was not for the High Court to pre-judge the case at the stage when only a few witnesses (doctors) had been examined by the prosecution and that too under the direction of the High Court in the revision petition filed by the accused. The High Court has not observed that the prosecution had closed the evidence from its side. There is also no discussion or observation in the https://hcservices.ecourts.gov.in/hcservices/ impugned order that the facts and circumstances of the case make it an exceptional case in which immediate interference of the High Court by invoking its inherent jurisdiction under Section 482 CrPC is warranted in the interest of justice. On consideration of the matter we have no hesitation to hold that the order under challenge is vitiated on account of erroneous approach of the High Court and it is clearly unsustainable. 11. Accordingly, the appeal is allowed. The order under challenge is set aside. The trial court is directed to proceed with hearing of the case in accordance with law. " (iii) (2009) 1 SCC (Cri) 87 (Sanghi Brothers (Indore) Private Limited vs. Sanjay Choudhary and others). An excerpt from it would run thus: "10. In State of Maharashtra v. Som Nath Thapa this Court observed as follows: (SCC p.671, paras 31-32) “31. Let us note the meaning of the word ‘presume’. In Black’s Law Dictionary it has been defined to mean ‘to believe or accept upon probable evidence’. In Shorter Oxford English Dictionary it has been mentioned that in law ‘presume’ means ‘to take as proved until evidence to the contrary is forthcoming’. Stroud’s Legal Dictionary has quoted in this context a certain judgment according to which ‘a presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged’. In Law Lexicon by P. Ramanatha Aiyar the same quotation finds place at p.1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” (emphasis in original) https://hcservices.ecourts.gov.in/hcservices/ 11. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (underlined for emphasis) The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and State of W.B. v. Mohd. Khalid.) 12. In R.S. Nayak v. A.R. Antulay this Court referred to Sections 227 and 228 so far as they are relatable to trial. Sections 239 and 240 are relatable to trial of warrant cases and Sections 245(1) and (2) are relatable to summons cases. 13. After analysing the terminology used in the three pairs of sections it was held (in Antulay case) that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case is to be applied." A plain reading of those decisions would highlight and spotlight the fact that at the time of framing charges, the court is not enjoined to ponder over the point, whether the accused ultimately would be acquitted or convicted. But, it is the duty of the court to see whether there is any prima facie case for framing charge. Having this in mind, it is a must to analyse the available materials on record to see whether there is any prima facie material to frame charges as against the accused A1. 13. Tersely and briefly, pithily and precisely, the case of the prosecution as against A1 is that A1, while functioning as the General Manager of Southern Railways during 1995 to 1997, conspired with other accused and caused loss to the Railways by sanctioning machinery advance to A7 even though A7 was not in any manner entitled to avail such advance. 14. It is also the case of the prosecution that at the first instance, the sanction was not granted for machinery advance. Subsequently, A7 submitted one other letter requesting for granting sanction of machinery advance; whereupon A2 on 24.03.1996 prepared a note requesting for sanction of machinery advance and approached A1 personally with a view to get the earlier decision reversed. Whereupon, A1 instructed A2 to get the tender committee to make their recommendation after incorporating the financial element involved in the machinery advance. Accordingly, the tender committee made recommendations. Whereupon, A1 accepted the same. https://hcservices.ecourts.gov.in/hcservices/ 15. Considering the pro et contra, it is just and necessary to consider as to what are all the relevant terms and conditions of the limited tender. 16. In the typed set of papers, I could see the relevant clauses. I would extract here under the clauses 8 and 9:- 8. The stone ballast required for the work shall be collected from outside Railway limits and the Contractor shall pay all the seigniorage and other incidental charges that may be involved. 9. The contractor should make his own arrangements for the required vehicles such as tractors, lorries etc., and other tools and plants, etc., for the expeditious progress of work and work the same at his own cost with his men and consumable stores." (emphasis supplied) Admittedly, the case is that only hand broken ballast was required to be used for the performance of Reach-IV, so to say, in laying the railway line between Eachengadu and Ariyalur. It is not, one of the requirements of the Railways that machine crushed ballast should be used. 17. Further, it is the contention of the learned senior counsel for the revision petitioner that even while offering the tender by A7, he stated that he required machinery advance. 18. It is ex facie and prima facie clear that for supplying hand broken ballast, machinery is not required and I am at a loss to understand as to why then, even at that initial stage itself, steps had not been taken either to modify and vary the terms and conditions of the tender or reject the offer of A7. 19. It is a trite proposition of law of contract that when conditional offer is made and conditional acceptance is made, there is no contract at all. There should be consensus id idem. However, in this case, peculiarly, even though A7 in response to the invitation offered by the Railway, offered to perform the work involving only hand broken ballast. 20. Curiously, A7 without in any manner explicitly stating whether he would supply machine crushed ballast or only hand broken ballast, simply asked for machinery advance so as to get secured sufficient finance to prepare machine crushed ballast. 21. Now, it transpires from the argument submitted on either side that after availing advance, A7 turned turtle and had an volte face and he never performed the work and did not utilised the machinery advance for the purpose for which, he availed. https://hcservices.ecourts.gov.in/hcservices/ 22. The learned senior counsel appearing for the revision petitioner would submit that A1, being the General Manager was not at all responsible for A7 having proved himself a scourge to the performance of the work. A1 correctly at the first instance recorded in the note put up by other accused for sanction of machinery advance as under: "If machinery advance was not part of tender conditions, it will not be correct to give it at this stage. Party can take loan from the banks etc.," (emphasis supplied) As such, in fact, the case of the prosecution itself is only to that effect, as strongly and correctly recorded supra by A1 so to say, no machinery advance could be granted, if it is not part of the tender conditions. However, subsequently, based on A7's subsequent representation on 22.03.1996, the other accused persons processed the matter and once again approached the General Manager A1 and at that time, on 25.03.1996 the notings would refer as under: "Discussed with G.M. He desires that the tender committee may include financial element of this advance and make their recommendations" (emphasis supplied) Thereafter, the minutes of the tender committee was prepared and it was submitted once again to A1, who recorded thus: "T.C's recommendation as above accepted" It is ex-facie and prima facie clear that to the knowledge of A1, A7's attempt to obtain machinery advance was not proper and it was not in accordance with the procedure. 23. The learned senior counsel for the revision petitioner tried to argue that even at the first instance itself A7 intended to supply machine crushed ballast and that was why, he offered machinery advance. 24. I cannot countenance such an argument and uphold it for the reason that the same A7 Palani himself, in his letter dated 8.2.1996, so to say, long after the emergence of the contract stated thus in his letter: "In this connection, we request the Railway administration to kindly arrange for 10% machinery advance on contract value for purchase and installation of the machineries as mentioned above. As per the conditions of the contract, the Railway has agreed to grant this machinery advance if the same is sanctioned by GM for which recommendation will be forwarded by the Railways. https://hcservices.ecourts.gov.in/hcservices/ Initially, it was proposed to supply hand broken stone ballast from various quarries in the area. Now, the Railways is urging us for accelerated ballast supply and for this purpose, we propose to install the above machinery to accelerate the supply". (emphasis supplied) A plain reading of it would demonstrate that at the time of making offer, A7 had no intention to supply machine crushed ballast and according to A7, because the railway administration pressed him to complete the work, he wanted to switch over to machine crushed ballast and for that he wanted machinery advance. As such, it is clear that A7 exposed himself and exposed the other accused also. 25. The learned senior counsel invited the attention of this court to the relevant portion of the Notification of the Indian Railways Code for the Engineering Department (Revised Edition) 1989 at Page No.172 and developed his argument to the effect that granting machinery advance is well within the limit of A1 and police cannot find fault with the General Manager. 26. It is therefore just and necessary to extract the relevant portion of the Railway Code. "1264. Advances to Contractors: It will be the duty of Executive Engineers to abstain as far as possible from making advances, and they should endeavour to maintain a system under which no payments are made except for work actually done. General Managers are, however, empowered to sanction advances to contractors in exceptional circumstances, no exceeding Rs.2 lakhs under the following conditions: (i) that a contractor does not receive advances