Jitendra Bahadur Singh vs C.B.I.
2015 Latest Caselaw 3229 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36                                                                     AFR
 
Case :- CRIMINAL MISC. IInd BAIL APPLICATION No. - 9513 of 2015
 
Applicant :- Jitendra Bahadur Singh
 
Opposite Party :- C.B.I.
 
Counsel for Applicant :- Neeraj Tripathi,Imran Ullah,Lav Srivastava,Mohd. Khalid-I
 
Counsel for Opposite Party :- Anurag Khanna
 

 
Hon'ble Ramesh Sinha,J.

1. Heard Sri Anoop Trivedi, learned counsel for the applicant, Sri N.I. Jafri, learned counsel for the C.B.I and perused the record.

2. This is the second bail application moved on behalf of the appellant. The first bail application of the applicant was rejected by Hon'ble Naheed Ara Moonis, J. on 9.12.2014 in Criminal Misc. Bail Application No.36664 of 2014. The second bail application was released by Her Lordship on 18.4.2015. The present bail application has been nominated to this Bench by Hon'ble the Chief Justice vide order dated 8.9.2015.

3. The brief facts of the case are that an first information report was lodged by one Sanjay Mishra, Supply Inspector, Food Department, Mainpuri against the five accused persons, namely, Raghuveer Singh the then Basic Shiksha Adhikari, Mainpuri, Krishna Dev, the present Basic Shiksha Adhikari, Mainpuri, Vishnu Dayal, Clerk, Prashant Mishra, District Coordinator and Vivek Sudarshan, Secretary of N.G.O. on 24.4.2011 registered as case Crime No. 900 of 2011, under sections 420 and 120-B I.P.C. and under Section 3/7 Essential Commodities Act 1955.

4. Vivek Sudharshan one of the accused in the aforesaid case challenged the recovery proceeding before this Court and in the said writ petition a direction was issued to the Director of Central Bureau of Investigation to conduct a preliminary enquiry. The aforesaid case was transferred to Central Bureau of Investigation which registered a case on 18.8.2011 as R.C. 1202011A0004, under Sections 420 and 120-B I.P.C. read with Section 13 (2) and Section 13 (1) (d) Prevention of Corruption Act, 1988 (hereinafter to as the 'Act) at police station C.B.I/A.C.B., district Ghaziabad wherein the name of the applicant was also included besides nine other persons in respect of their involvement in the present case. The scheme of mid day meal was started by the Government of U.P. in 16 districts on 25.6.2004. In pursuance of the Government Order dated 8.9.2004, mid day meal scheme in district Mainpuri started since October 2004, which was initially launched through local bodies like Gram Panchayat, School Headmaster in rural area and in urban area through Parshad, Sabhasad and the concerned school. The Central Government through Food Corporation of India provided food grains for mid day meal scheme to the concerned district authorities for serving mid day meal to the school children free of cost. NGO M/s. Search (Society for Science and Environment Awareness Research Communication and Heritage) run by Sri Vivek Sudershan who was its Secretary was awarded work for serving mid day meal from the District Magistrate, Mainpuri. The applicant who was posted as Chief Development Authority, Mainpuri during the period 22.10.2008 till 14.9.2010 when the scheme was in operation in only six blocks, the applicant had extended the area of operation of M/s Search from six blocks to the entire district, which was consisting of nine blocks. For an effective and proper implementation of the mid day meal scheme during his tenure and being a Nodel Officer the then District Magistrate Mainpuri made a task force of Chief Development Officer, Basic Shiksha Adhikari and other Zonal Magistrates and the work of distribution was assigned to the Basic Shiksha Adhikari who commenced the functioning of the primary school and after completion of the work on the basis of report as the power to make payment vested in the District Magistrate who used to make the payment.

5. The new ground argued by learned counsel for the appellant is that the co-accused Dinesh Chandra Shukla, the then District Magistrate Mainpuri has been granted bail by another Bench of this Court on 6.5.2014 in Criminal Misc. Bail Application No.12526 of 2014 in Special Case No.21 of 2013, Case Crime No.RC 1202011A0004, u/s 120-B, 409, 420 IPC, 13(2) read with Section 13(1)(d) Prevention of Corruption Act, P.S. C.B.I. District Ghaziabad and thereafter the said accused was also granted bail for substantive offences u/s 409, 477 A IPC and Section 13(2) read with Section 13(1)(d) Prevention of Corruption Act, P.S. C.B.I, district Ghaziabad on 13.8.2015 in Criminal Misc. Bail Application No.17023 of 2015.

6. He further submits that the applicant is in jail since 23.7.2014 for the last about fifteen months, hence he is also entitled for bail on the ground of parity in addition to the aforesaid grounds. He submits that as per all the Government Orders mentioned in the charge sheet by the C.B.I, Government Order dated 24.10.2007 mentioned, the specific role of the applicant being Chief Development Officer was to ensure the quality of Mid-Day-Meal scheme which makes in a very important member of District Level Task Force. He admits the role of the applicant to ensure quality of Mid-Day-Meal as Chief Development Officer, and there is no whisper in the charge sheet regarding serving of bad quality or sub-standard food to the students. The C.B.I in the charge sheet has not alleged that the meals served to the students was sub-standard and as such the applicant has wrongly arrayed as an accused in the present FIR and in the subsequent charge sheet. All the files pertaining to Mid-Day-Meal Scheme were routed through the office of the applicant only for the reason that he being important member of task force had power to write his comment or to put a note especially on the financial bills if during the inspection the meals so served were sub-standard and not up-to mark.

7. It was next submitted that the charge sheet itself demonstrates that the concerned District Magistrate has all the powers to make payment and ensure proper implementation of Mid-Day-Meal to the students. Moreover, as per all the Government Order as referred in the charge sheet none amongst them states the power of the applicant to either grant contract, sanction, release payments or extend the operational area of any NGO. The Government Orders only gives power to the applicant being member of task force to supervise and check the quality of food so distrubuted among the student in the scheme of Mid-Day-Meal. All the files pertaining to Mid-Day-Meal after initiation through the office of Basic Shiksha Adhikari was routed through the office of applicant to District Magistrate who being Nodal Officer had an absolute power to sanction, payment of conversion cost and extension of operational areas etc. Since the applicant was a member of task force, he was merely a post office for the issues relating to financial matters pertaining to Mid-Day-Meal.

8. He further argued that the applicant was neither responsible nor entrusted with the job of publishing of advertisement etc. and to receive unwillingness of Gram Pradhan/local bodies. As per various Government Orders annexed with the charge sheets, it is only the responsibility of Basic Shiksha Adhikari concerned under the supervision of District Magistrate. Only District Magistrate and Basic Shiksha Adhikari were liable to receive utilization certificate from the District Magistrate after examining it. It was not within the domain of the Chief Development Officer to draw the budget, release the funds, receive the utilization certificate, control and supervise the Mid-Day-Meal Scheme and other financial responsibility. So far as recommendation of the applicant for extension of service area of M/s SEARCH in three other blocks is concerned, the applicant was supposed to only put a note against the said proposal if he found during inspection of the serving of Mid-Day-Meal by the above mentioned NGO in another areas to be sub-standard or the quality of the food was not up-to the mark. It was not within the domain of C.D.O to put a dissenting note on the said proposal of extension of area of NGO for any other reason such as non-availability of unwillingness certificates of Gram Pradhan or to check whether the said NGO was blacklisted or not.

9. The C.B.I has wrongly pointed out the role of the applicant as per charge sheet, paragraph no.23 in view of various complaint against NGOs the District Magistrate on 15.4.2007 had constituted a committee to enquire into performance of Ms. Search in view of enquiry report Rs.30228/- was deducted from the bill to be paid to NGO for its services of Mid-Day-Meal up-to February, 2007. The performance of NGO as per charge sheet was not found satisfactory even then the District Magistrate, Mainpuri had dishonestly reassigned task of distribution of Mid-Day-Meal to search with effect from March 2008 vide order dated 1.3.2008 and thereafter on 28.4.2008 a further extension of service area was given by the then District Magistrate and Basic Shiksha Adhikari. The applicant joined as Chief Development Officer, Mainpuri in August, 2008 and as such the non-performance to the level of satisfaction by the NGO M/s SEARCH was only to be looked after by the officers who was posted at that particular time i.e. in the month of March, 2008. There is absolutely no whisper in the charge sheet that after 22.8.2008 till the applicant had recommended the extension of service area of NGOs i.e. in May 2010, there was any complaint or unsatisfactory report against the said NGO.

10. The Government of India vide Government Order dated 22.4.2008 had selected M/s SEARCH for serving Mid-Day-Meal. In pursuance of which the said NGO was selected for the said purpose. He lastly argued that there are 34 witnesses mentioned in the charge sheet by the C.B.I and till date only one witness has been examined by the trial court and the trial is not likely to be concluded in near future and the applicant being Government Servant cannot abscond and is entitled for bail as he is in jail for last about fifteen months. Learned counsel for the applicant in support of his contention has placed reliance on the judgment of the Apex Court reported in 2011 LawSuit (SC) 1239 Sanjay Chandra and others Vs. Central Bureau of Investigation. He has further placed reliance on the judgment of the Apex Court reported in 2012 LawSuit (SC) 99 Dipak Shubhashchandra Mehta Vs. C B I & another. He has also placed reliance on the judgment of the Apex Court reported in 2001 LawSuit (SC) 1717 Laloo Prasad alias Laloo Prasad Yadav and others Vs. State of Jharkhand and others.

11. Per contra Sri N.I. Jafri, learned counsel for the C.B.I has vehemently opposed the prayer for bail and submitted that the applicant being Chief Development Officer at the relevant point of time has extended the distribution of Mid-Day-Meal Scheme to three blocks during his tenure to M/s SEARCH in conspiracy with other accused persons in which several crores of rupees have been embezelled and misused by him and co-accused persons and his first bail application has already been rejected on merits by this Court and there appears to be no new ground for enlarging the applicant on bail as all the arguments which have been raised by learned counsel for the applicant have already been considered by this Court while rejecting his first bail application on 9.12.2014. All the other co-accused persons have been mentioned in the charge sheet are already confined in jail and some of the co-accused persons bail application has also been rejected by this Court and he has pointed out one of the bail application of Sachchidanand Dubey, District Magistrate, Mainpuri whose bail application was also rejected by another Bench of this Court vide order dated 17.11.2014 in Criminal Misc. Bail Application No.26982 of 2014 against which the said accused preferred Special Leave Petition being No.9841 of 2014 against the said order of High Court. The said petition has been disposed of with some observations. The Hon'ble Apex Court refused to interfere in the order dated 17.11.2014 passed by this Court which is being quoted here below:-

After hearing learned Senior Counsel for the parties at length, we do not find any ground for interference with the impugned order for rejection of the bail application of the petitioner. However, it was brought to out notice by Mr. A.S. Saran, learned Senior Counsel for the petitioner that certain observations made by High Court in the impugned judgment and order are totally unwarranted for the purpose of considering the application for bail of the petitioner and the same shall not be taken into consideration when a fresh application for bail is filed. The request of the learned Senior Counsel is accepted subject to the condition that such a fresh application for grant of bail shall be filed after three months and the trial judge/High Court shall decide the same in accordance with law without being influenced by the observations made in the impugned judgment and order.

The special leave petition is disposed of with the aforesaid observations.

12. In pursuance of the said order, the said accused has filed a Bail Application before this Court which is still pending to which learned counsel for the applicant submitted that the Hon'ble Apex Court had directed this Court to decide the bail application afresh without being influenced by the observations made in the impugned judgment and order of the High Court. The copy of the Apex Court has also been annexed with the supplementary affidavit to which learned counsel for the C.B.I submitted that the said order of the Apex Court cannot be applicable to the applicant as it is related to the said co-accused.

13. It was also pointed out by learned counsel for the applicant that there is an order granting bail to Dinesh Chandra Shukla by another Bench of this Court on 6.5.2014 and for substantive offence on 13.8.2015, the learned counsel for the C.B.I could not dispute the fact regarding grant of bail to the said co-accused and only submitted that as the said co-accused was granted bail by another Bench on 6.5.2014 for allegation of conspiracy and in substantive offence bail was granted on 13.8.2015.

14. Sri N.I. Jafri, learned counsel for the C.B.I in addition further submitted and has drawn attention of the Court towards para no.73, 74, 75 and 77 of the charge sheet in which it has been submitted that the C.B.I. had found that in pursuance of the aforesaid criminal conspiracy, the applicant dishonestly and fraudulently and abusing his official position recommended extension of service area of M/s SEARCH to whole district of Mainpuri without obtaining mandatory written unwillingness from Gram Pradhans and had recommended payments to M/s SEARCH without reconciliation.

15. The applicant has been party to sanction of following amount in favour of M/s SEARCH as conversion cost as he has signed the sanction notes in capacity of Chief Development Officer, Mainpuri and forwarded the same to the District Magistrate for sanction to the tune of Rs.153333934/- during the period 22.12.2008 to 27.9.2010. The applicant abusing his official position dishonestly and fraudulently forwarded the sanction notes for aforesaid payments of conversion cost to the then District Magistrates in favour of M/s SEARCH without obtaining Utilization Certificate and ensuring that payment was made on the basis of actual number of Mid-Day-Meal availing students. He forwarded the Sanction Notes without ensuring that bills were raised by the NGO and Utilization Certificate for the previously drawn amounts of conversion cost had been submitted and that conversion cost was paid in view of actual no. of Mid-Day-Meal availing students.

16. Learned counsel for the applicant has drawn attention of the Court towards para no.77 of the charge sheet submitted by the C.B.I and submitted that the Dinesh Chandra Shukla, the then District Magistrate, Mainpuri was entrusted with domain over the budgetary allocation for Mid-Day-Meal Scheme to facilitate payment of conversion cost etc. as mentioned in the allotment of budget itself. He was the competent authority to sanction payment of the conversion cost and was supposed to sanction conversion cost in view of actual no. of Mid-Day-Meal beneficiaries against bill submitted by the NGO and after obtaining Utilization Certificate for the previously drawn amount.

17. Learned counsel for the C.B.I vehemently argued that the applicant had absconded and did not surrender before the court after submission of the charge sheet and only when non-bailable warrant was issued, he was arrested by the police from district Aligarh where he was working as Vice-Chairman of Aligarh Development Authority. In support of his contention he has placed reliance on the judgment of the Apex Court reported in 2005 S.C.C. (Cri) 489 Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another and also on the judgment of the Allahabad High Court passed in the case of Satya Pal Vs. State of U.P. In Criminal Misc. Second Bail Application No.15018 of 1997.

18. Considered the submissions advanced by learned counsel for the parties. It appears from the record that the first bail application of the applicant has already been rejected by this Court on merits by another Bench of this Court. The present FIR was lodged in pursuance of the order passed by this Court. In pursuance of the order passed by this Court in Writ-C No.25920 of 2011 on 30.5.2011 a Preliminary Enquiry was directed by this Court which is quoted here below:-

17. We, therefore, direct the Preliminary Enquiry in the matter with specific reference to Mainpuri be conducted by the CBI and that report be submitted to the Court within a period of two months. All the State authorities including Director, Mid Day Meal Scheme and the District Magistrate, Mainpuri will give cooperation to the officers of CBI nominated by the Director, CBI to enquire into the matter. The District Magistrate will provide all the records available with him in respect of utilisation of mid day meal scheme funds. The CBI is authorised to visit, inspect and interrogate any office bearers, members and Secretary of MDMA, or any other officers and authority of the State Government, which may be necessary to complete the enquiry.

18. A copy of the order be given to the Registrar General of the Court to be sent to the Director, C.B.I. for taking necessary steps.

19. The matter will be listed on 2nd August, 2011. The C.B.I. will submit its preliminary enquiry report to the Court on that date.

19. Subsequently on 2.8.2011 after submission of the report of the Preliminary Enquiry, the Court passed the following order:-

On 30.5.2011, after considering the counter affidavits filed on record, we had issued directions to the CBI, for Preliminary Enquiry, with specific reference to District Mainpuri, on the allegations of misappropriation of funds of Mid Day Meal Scheme, and to submit a report to the Court within two months. All the State authorities, including the Director, Mid Day Meal Authority and the District Magistrate, Mainpuri were directed to cooperate with the officers of the CBI, nominated by the Director, CBI, to enquire into the matter.

Sri D.K. Singh appears for the petitioners. Learned standing counsel represents respondent Nos. 1 to 4. Sri K.S. Kushwaha, appears for the Director, Mid Day Meal Authority (MDMA). - respondent No.5. Sri N.I. Jafri, appears for CBI along with Sri Devendra Singh, Officer Incharge Investigation, CBI.

Learned counsel for the petitioners has placed on record, an order dated 28.7.2011, passed by the Supreme Court in Special Leave to Appeal (Civil) No. 19915/2011, in which the Supreme Court has observed:-

"Taken on board. Issue notice limited to the question whether recovery as per notice dated 26.4.2011 could be done without enquiry and opportunity to the petitioners.

Interim stay of the sale of the property of the petitioner."

Sri N.I. Jafri has produced preliminary enquiry report of CBI under the signatures of Sri Sujeet Pandey, Head of the Branch, CBI/ACB/Ghaziabad dated 1.8.2011, running into 52 pages appending charts of the period of posting of the officers, and the particulars of food-grain requisitioned and released, for mid-day meal during March 2008 to March 2011.

In the Preliminary Enquiry, the CBI is reported to have recorded the statements of about 2000 witnesses, examined the mid-day meal registers of the relevant period from 2075 Schools, and collected 5083 documents.

The Preliminary Enquiry conducted by the CBI has prima facie confirmed the facts in the enquiry held by the present District Magistrate, Mainpuri that large scale irregularities were committed, in which funds of Rs. 7.63 crores (approx) were paid in excess as conversion cost, and food grains weighing 46,884.08 quintals were not utilized and was misappropriated. The CBI has estimated the embezzlement to be Rs. 6.43 crores and food grains weighing 43,545.29 quintals, and has also found that M/s. SEARCH - the NGO, distributing mid-day meal, has diverted an amount of Rs. 9,09,00,000/- out of Rs.22,05,28,9327/- in the accounts of M/s. SEARCH Film Production and M/s. Paramount Residency Private Ltd., in its bank accounts in Punjab National Bank at Ghaziabad. The CBI has approximated the diversion of about 41 % of the funds paid to the NGO.

The present District Magistrate, Mainpuri has lodged FIR against five persons including two Basic Shiksha Adhikaris, District Coordinator, Mid Day Meal, one Senior Clerk in the Office of BSA and the Secretary of the NGO, which has been registered as Case Crime No. 900 of 2011, under Section 120-B, 420 IPC and Section 3/7 Essential Commodities Act at Police Station Kotwali, District Mainpuri.

In the Preliminary Enquiry, the CBI has reported that apart from those persons against whom FIR has been lodged, three District Magistrates, two Chief Development Officers posted at Mainpuri at the relevant time, are also prima facie responsible for omissions and commissions, and in forwarding utilization certificates, making payments, and furnishing bogus figures to the Mid Day Meal Authority.

The CBI has made a prayer at the end of the report, to take over investigation of Case Crime No. 900 of 2011.

Sri N.I. Jafri, learned counsel for the CBI states that the CBI may be permitted to take over police investigation by registering a regular case, and to investigate the crime against three District Magistrates and two Chief Development Officers also, who were posted at Mainpuri between March 2008 to March 2011.

We find that in the Preliminary Enquiry report, the CBI has found the involvement of three District Magistrates, two Chief Development Officers also along with two Basic Shiksha Adhikaris, one District Coordinator, one Senior Clerk in the Office of BSA and the NGO in siphoning off about 41 % of the entire Rs.22 crores paid to the NGO and misappropriation of more than 43,000 quintals of food grains.

The Supreme Court in its order dated 28.7.2011, has issued notice, limited to the question whether recovery as per notice dated 26.4.2011, could be made without enquiry and opportunity to the petitioners.

The Supreme Court has not stayed Preliminary Enquiry, directed by us to be made through CBI.

Taking into account the serious allegations of misappropriation of mid-day meal funds , started at the instance and being monitored by the Supreme Court, and the crime alleged to have been committed against the society, we accept the request of the Head of the Branch, CBI/ACB/Ghaziabad in his report dated 1.8.2011, to take over investigation of Case Crime No. 900 of 2011 registered under Sections 120-B, 420 IPC and Section 3/7 of E.C. Act, Police Station Kotwali, District Mainpuri against all the nine persons, and to proceed in accordance with law.

In the writ petition, counter affidavits have been filed by all the parties, except the Director, Mid-day Meal Authority.

Sri K.S. Kushwaha, learned standing counsel states that Sri S.M.A Kazmi, Senior Advocate will appear for the Director, MDMA. He is allowed one week time to file counter affidavit. The petitioners will have two weeks thereafter to file rejoinder affidavit.

List again on 6.9.2011, also showing the names of Sri S.M.A. Kazmi, N.I.Jafri and Sri K.S. Kushwaha as counsel for respondents.

The report submitted by the CBI will be kept in the custody of the Registrar General, to be produced in the Court, whenever required by the Court.

20. The Apex Court recently in the case of Shanti Lal Meena Vs. State (NCT of Delhi) 2015 (6) SCC 185 in para 22 observed as under:-

Unless the courts award appropriately deterrent punishment taking note of the nature of the offence under the PC Act and the status of the public servant at the relevant time, people will lose faith in the justice-delivery system and the very object of the legislation on prevention of corruption will be defeated. The court is the conscience of the statute and hence its judgments should project and promote the policy aims of punishment, lest it should shake the faith of common man in courts. The judgment on sentence shall not shock the common man. It should reflect the public abhorrence of the crime. The court has thus a duty to protect and promote public interest and build up public confidence in efficacy of the Rule of Law. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity, affecting the credibility of its verdict. Thus, while awarding sentetnce in cases under the PC Act, the court should bear in mind the expectation of the people of its paramount duty to prevent corruption in society by providing prompt conviction and stern sentence.

21. In the instant case the applicant was posted as Chief Development Officer in district Mainpuri and he has extended the Mid-Day-Meal Scheme in three blocks during his tenure. He was also a member of District Level Task Force and was assigned a construction work before forwarding the relevant documents for payment etc. to the District Magistrate and he only on the basis of the report submitted by the sub-ordinate officials of the education department i.e. Basic Shiksha Adhikari, Senior Clerk Coordinating have forwarded the papers for payments in which several crores of rupees have been embezzled and misused in collusion with the officials of the education department as well as by the District Magistrate who were posted at the relevant point of time. Hence the contention of the learned counsel for the applicant that there was no role assigned to the applicant and it was the District Magistrate who was Nodel Officer almost was responsible for disbursing the payment to the said NGO appears to have no force as the applicant had equal responsibility to check the notes, bills which were forwarded by the officials of the education department cannot be ignored by this Court as there has been loss of huge money of State Exchequer and if the officials are allowed to take such plea that they were only forwarding authority and have no responsibility to check the papers submitted for payments does not exonerate of their criminal liability. Hence I find no good ground for granting bail to the applicant.

22. Without expressing any opinion on the merits of the case and considering the submissions advanced by learned counsel for the parties, I find that no new ground is made out for enlarging the applicant on bail.

23. The bail application of the applicant Jitendra Bahadur Singh, involved in Special Case No.21/13 R.C. No.1202012/A/0004 u/s 420, 409, 120-B IPC and 13(2) Read With 13(1) Prevention of Corruption Act, 1988 and Substance Offence u/s 409 and 420 IPC and 13(2) r/w 12(1) (D) and Prevention of Corruption Act, P.S. CBI/ACB, New Delhi is, accordingly, rejected.

23. Office is directed to send the certified copy of this order to the trial court for it's compliance.

15.10.2015

Gaurav