Sau Sunita W/O Gangadhar ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 1550 Bom

                                                      Cri.W.P.No. 790/16
                                      1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO. 790 OF 2016

 1.       Sau. Sunita w/o. Gangadhar
          Suryawanshi (Babhalikar),
          Age 50 years, Occu. Social Work,
          R/o. Deshmukh Galli, Bhokar,
          Tal. Bhokar, District Nanded.      ....Petitioner.
                                             (Ori. Complainant)

                  Versus


 1.       The State of Maharashtra,
          Through Police Station,
          Bhokar, Tal. Bhokar,
          District Nanded.

 2.       Girish s/o. Vinayakrao Joshi,
          Age 42 years, Occu. Service i.e.
          Executive Engineer, P.W.D.
          Bhokar, Tal. Bhokar, Dist. Nanded,
          R/o. Plot No. 40, Flat No. 1,
          Siddhi Residency, Shrey Nagar,
          Aurangabad, Dist. Aurangabad,
          Serving Superintendent Engineer,
          P.W.D., Circle - Akola, Tq. & Dist.
          Akola.                              ....Respondents.


 Mr. P.R. Katneshwarkar, Advocate for petitioner.
 Mr. S.W. Munde, APP for respondent No.1/State.
 Mr. N.B. Khandare, Advocate for respondent No. 2.

                                  CORAM : T.V. NALAWADE, J.
                                  DATED : April 10, 2017.

 JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

Cri.W.P.No. 790/16

2) The proceeding is filed under Articles 226 and 227 of

the Constitution of India to challenge the decision of Criminal

Revision No. 14/2015, which was pending in the Court of

Additional Sessions Judge, Bhokar. The revision filed by the

present respondent No. 2 - Shri. Joshi , who is presently serving

as Superintending Engineer is allowed by the Sessions Court and

the order of taking cognizance of one offence as against

respondent No. 2 on police report is set aside by the Sessions

Court. The report was filed by police under section 169 of

Criminal Procedure Code (Cr.P.C.) along with the chargehseet.

The learned Judicial Magistrate, First Class (J.M.F.C.), Bhokar did

not accept the report filed under section 169 of Cr.P.C., 'C'

Summary Report which is given as per the Maharashtra Police

Manual, 1999 and on the basis of the material collected, took

cognizance of the offence punishable under sections 420, 467,

468, 471, 409, 34 etc. of Indian Penal Code (I.P.C.).

3) Regular Criminal Case No. 76/2014 was filed as a

private complaint by the present petitioner for aforesaid

offences and in that matter, order under section 156 (3) of

Cr.P.C. was made by the learned J.M.F.C., Bhokar. After

completion of the investigation, police had filed aforesaid 'C'

Summary Report under section 169 of Cr.P.C. along with the

Cri.W.P.No. 790/16

chargehseet.

4) It is the case of original complainant that present

respondent No. 2 - Shri. Joshi was working as Executive Engineer

of Public Works Department (P.W.D.) of the State Government

Department and one Shri. Dange was working as Junior Engineer

for Bhokar. One Shri. Deshpande was working as Sub Divisional

Engineer at the relevant time. The complainant is resident of

Bhokar, District Jalna.

5) In the private complaint, allegations were made by

the present petitioner that false record of execution of work was

created in connection with Dhavari - Therban - Somthana - Kini -

Palaj road and by creating false record of measurement and

Government money was misappropriated by these Engineer staff

of P.W.D. Department. It was the duty of Shjri. Dange and Shri.

Deshpande to take measurement and prepare the bills and

Executive Engineer, respondent No. 2 - Shri. Joshi was to

sanction the bills and disburse the amount on the basis of bills.

He was also responsible for allotment of work. There is allegation

that amount of Rs.39,55,106/- of Government was

misappropriated by these persons by creating false record. It is

the case of complainant that she had made an attempt to collect

the record of measurement, but the record was not supplied and

Cri.W.P.No. 790/16

she had tried to collect the record of report of joint measurement

made by other Executive Engineer, but the department has

avoided to supply that record also. Ultimately, she got some

information and on that basis, she filed the complaint. The

complainant was sure that present respondent No. 2 and other

two Engineers were responsible for the creation of false record

and misappropriation and they were made accused in the

private complaint. The concerned police station filed report that

the complaint was made due to some misconception and such

report was filed under 'C' Summary category created by

Maharashtra Police Manual, 1999. The submissions made, the

report of police and the argument advanced show that not a

single person was arrested by police during investigation even

when anticipatory bail was refused by this Court to accused

Shri. Joshi.

6) In 'C' Summary Report, it was informed by police to

the learned J.M.F.C. that Report of the first Committee of expert

was confronted to accused by the police and respondent Shri.

Joshi had denied that Report by contending that he was not

present at the time when joint measurement was taken by the

Committee. Due to such defence taken by Shri. Joshi, police had

written to the Chief Engineer of the Department that the Report

cannot be accepted. It appears that in the Legislative Assembly

Cri.W.P.No. 790/16

and Council of the State, this subject was raised and the State

Government then gave directions to the Vigilance Committee

created for Aurangabad division to make inquiry and submit

report. Then other Executive Engineer made inquiry and

submitted report dated 14.2.2014. The previous report was

submitted on 13.7.2012. The subsequent Committee, Vigilance

Committee reported that the report of the year 2012 was not

correct and there was no substance in the allegations made

against these Engineers. The Superintending Engineer Shri.

Kulkarni considered the two reports and he gave his own report

to the Chief Engineer that subsequent report needs to be

accepted. He also reported that there was no necessity of joint

measurement again in view of the report of Vigilance

Committee. The papers of investigation and the police report

show that police had recorded statements of the persons, who

were involved in making the inquiry and police accepted the

final report and informed to the Magistrate that as the

subsequent report was of the Committee of higher grade, it was

necessary to accept it and so, the investigating agency was filing

'C' Summary Report.

7) The aforesaid record and the report of investigating

agency was considered by the learned J.M.F.C. Hearing was given

to the counsel of complainant. The learned J.M.F.C. refused to

Cri.W.P.No. 790/16

accept 'C' Summary Report and on the basis of aforesaid record

which included the report of first joint measurement and the

statements of the members of that Committee took cognizance

of the offences.

8) The learned Additional Sessions Judge has set aside

the aforesaid order of J.M.F.C. on following three grounds :-

"(A) There is no sanction under section 197 of Cr.P.c.

to initiate prosecution against accused.

(B) The lower court totally ignored the subsequent

report and there is no whisper of third and fourth

report.

(C) The contractors who prepared forged bill are not

implicated as an accused in absence of main accused

who are the author and mastermind of the forged bill.

There act can not fastened on the petitioner."

9) There are peculiar circumstances in the matter and

such circumstances are also with regard to the record of two

revisions and the matter which was filed in this Court. The record

produced shows that initially all the three Engineers had filed

Criminal Revision No. 8/2014 on 14.4.2014. This revision was not

pressed by them and so, it was shown to be disposed of as not

pressed on 25.7.2014. Prior to that, a proceeding was filed under

Cri.W.P.No. 790/16

section 482 of Cr.P.C. by present respondent No. 2 - Joshi to

challenge the order of investigation made by J.M.F.C. in this

Court. Thus, the order of J.M.F.C. was challenged by filing two

proceedings like revision and proceeding filed under section 482

of Cr.P.C. Joshi and other two accused also attempted to get

anticipatory bail by filing applications in Sessions Court and in

this Court. This Court had refused anticipatory bail to all these

three accused by order dated 25.8.2014 made in Criminal

Application No. 2664/2014. The record shows that the first

Criminal Revision No. 8/2014 was pending on 25.7.2014, but the

proceeding was filed under section 482 of Cr.P.C. The first

revision which was not pressed was filed through one Advocate

Shri. Sharma and the second revision was filed through another

advocate Shri. P.H. Deshmukh. Though some reasons are given

by the Sessions Court for deciding the second revision in favour

of accused, the fact remains that the accused had failed to get

order under section 482 of Cr.P.C. and also order of anticipatory

bail from this Court.

10) The aforesaid circumstances and particularly, the

creation of one more Committee for making inquiry and the

circumstance of acceptance of the the said report by the Chief

Engineer and the circumstance that police acted on the basis of

second report are sufficient to show that somebody from

Cri.W.P.No. 790/16

Government was helping these accused. While deciding the

anticipatory bail application, this Court had considered those

circumstances and it was observed that it was an attempt to

cover up the things. When the Court is expected act

independently and even police were expected to make

investigation independently and fairly, the learned Judge of the

Sessions Court ignored all these circumstances and presumed

that the report of the subsequent Committee ought to have been

accepted by the learned J.M.F.C. It cannot be said that the

learned Judge of the Sessions Court was not aware of the

aforesaid circumstances because the learned J.M.F.C. had

considered those circumstances. As the report submitted by

police under section 169 of Cr.P.C. and the papers collected by

police were available before the J.M.F.C., the learned Judge of the

Sessions Court ought to have presumed that the learned J.M.F.C.

had considered all this material and after that had taken

cognizance of the matter. The Sessions Court ought to have kept

in mind the scope of revisional jurisdiction and also the powers

of the learned J.M.F.C. The power exercised by the learned

J.M.F.C. is well withing his jurisdiction and that was on the basis

of some record, but the learned Sessions Judge did not consider

that aspect of the matter. It can be safely said that the learned

Sessions Court has exceeded the powers by accepting the other

probability which was suggested to him by the side of accused.

Cri.W.P.No. 790/16

11) On merits also, it can be said that the investigating

agency did not act fairly and did not make investigation

competently. When there were such serious allegations and

when there was the report of first Committee constituted for

joint measurement, investigation ought to have been made

independently. The investigating agency did not take help of any

independent agency to find out the truth in to the allegations.

The investigating agency did not record the statements of

persons living in the vicinity of the road. It did not record

statements of persons who were regularly using the said road

and the investigating agency did not approach some witnesses

who could have been supplied information as to whether the

material like Murum, metal etc. was supplied by them and it was

taken to the site for repair and construction of the road. When

such work is executed, some minor mineral like Murum, metal is

required to be excavated and for that, there is always revenue

record. The report of the Investigating Officer does not show that

such an attempt was made. The report even does not show that

the Investigating Officer went in to the details of the bills when

the first Committee had given finding that most of the work was

not actually executed and false measurements were recorded.

Thus, the things were not verified independently by the

investigating agency. There was atleast the material before the

Cri.W.P.No. 790/16

investigating agency like the statements of members of the first

Committee showing that they had visited the spot and they had

noticed that most of the work was not executed and false record

of measurement was prepared.

12) There is copy of Government Resolution (G.R.) dated

30.10.2003 of P.W.D. of Government in which guidelines are

given for making inquiry when there are allegations of present

nature. As per these guidelines, the first Committee for joint

measurement was constituted and one Shri. Khaja Masioddin

was presiding over this Committee and he was incharge

Executive Engineer at the relevant time. This Court has no

hesitation to observe that the first Committee was constituted as

per the G.R. dated 30.10.2003. The G.R. does not show that the

incharge Executive Engineer cannot do such inquiry. Clause No.

4 of the G.R. shows that such Committee consist of atleast five

members as follows :-

(i) Executive Engineer, Deputy Executive Engineer

and atleast one officer of rank of Branch

Engineer/Junior Engineer (Total number of members -

               three), and

               (ii)        One     Deputy     Engineer       and      one       Branch

Engineer/Junior Engineer of the office against which

there are allegations (Total number of members - two).

Cri.W.P.No. 790/16

If felt necessary, the Executive Engineer/Superintending

Engineer, Quality Control Committee, Vigilance Committee had

also right to remain present during such inquiry. Thus, the main

inquiry was to be conducted as per the aforesaid G.R. and that

was through joint measurement.

13) Clauses Nos. 3 and 5 of the aforesaid G.R. show that

in advance intimation of joint measurement needs to be given

and 20 days notice needs to be given to the officer against

whom there are allegations. However, it further shows that if the

officer does not remain present, his absence is to be marked and

the inquiry is to be completed. The G.R. also shows that if the

officer against whom there are allegations remains present and

he expresses some grievance with regard to any matter, the

Committee is expected to see that his grievance is redressed by

taking some steps. The procedure which is required to be

followed for taking joint measurement is also given in clause No.

7 of the G.R. and that includes the taking of the holes.

14) Copy of the report submitted by the first Committee

of joint measurement dated 13.3.2012 is on the record and it

shows that it was done on the basis of directions given to make

inquiry in respect of the allegations made against the Junior

Cri.W.P.No. 790/16

Engineer Shri. M.N. Dange. It shows that people of that area had

started agitation and they were asking for making inquiry.

15) The report of the first Committee shows that in all six

officers mentioned in the aforesaid G.R., who are required to be

included in the committed were present for joint measurement.

Shri. M.N. Dange, against whom there were allegations, was also

present. It appears that notice was given to one Shri. P.P.

Deshpande also. But, he remained absent. Thus, notices were

given against two officers. These two officers were working in

the field and they were expected to prepare the bills etc. after

taking the measurement and they were involved in day to day

supervision. The main points of the report prepared by the first

Committee after joint measurement are as follows :-

               (i)      Inquiry   was   made    between       22.5.2012         and

               19.6.2012.

               (ii)     The work in respect of the allegations was shown

               to be completed in financial year 2010-11.

               (iii)    In all the items, the pieces of work, where

irregularities were found and misappropriation was

noticed, there is clear mention that the Committee had

visited the concerned site for measurement.

(iv) In respect of Dhavri - Therban - Somthana - Kini -

Palaj road, for repairs k.m. 38/700 to 39/100, in

Cri.W.P.No. 790/16

addition to other irregularities, it was noticed that no

work was actually executed as per the work order of

repairs and as per the measurements. The Committee

noticed that for about 800 mtrs. from the two side

road, some earth material was collected after digging

and that earth material was shown to be spread on side

pattis. By using this modus operandi, the amount of Rs.

7.06 lakh was misappropriated.

(v) In respect of the aforesaid road for

k.m.39/100 to 41/00 and k.m. 42/00 to 42/00 for

repairs, additional work was executed like 20 mm

premix carpet when there was no such tender and

estimate. Similarly, like done in aforesaid matter, earth

material from both the sides of the road was collected

to prepare the side pattis of the road and by using that

modus operandi, the amount of Rs.82,690/- was

misappropriated. There was one more irregularity in

respect of this work like giving of technical sanction of

Rs.7.95 lakh to the work when the administrative

sanction was of Rs.5 lakh. This Court is not going into

the details of that count and this Court is trying to deal

with the particular allegations made in respect of false

record and misappropriation.

(vi) For aforesaid road for the piece k.m. 41/200

Cri.W.P.No. 790/16

to 41/600, false record of measurement was prepared

and no work was actually executed on that place. Some

ditches were filled, but when the contractor was

expected to reconstruct the road of the width of 3.75

mtrs., such work was not executed and the amount of

Rs. 9.87 lakh was misappropriated.

(vii) to (x) These items are in respect of the same road

of k.m. 52/00 to 52/200, k.m. 54/400 to 54/600, k.m.

55/700 to 55/900 and k.m. 55/00 to 58/00. In respect of

these items also, it was noticed that record of false

measurement was created and loss was caused and

thereby Government amount was misappropriated.

Some other circumstances leading to suspicion like

creation of entire record of measurement and bills on

the same day are also noted. The notings made by the

Committee in these items show that they had visited

the spot and the material used for filling the ditches

was also seen and it is noted.

16) The first Committee had given report that loss of

Rs.39.55 lakh was caused and this amount was grabbed by

preparing false record of measurement and false bills. The blame

was put on divisional accountant also as the bills prepared were

found to be highly suspicious in nature. It is already observed

Cri.W.P.No. 790/16

that ultimately, the bills come to Executive Engineer for sanction

and releasing the amount.

17) From the aforesaid report prepared by the first

Committee and the procedure given in the G.R. already quoted,

it could have been presumed by the Magistrate at the stage of

cognizance that necessary procedure was followed by this

Committee and even holes were taken at various places by this

Committee for verification. As the measurement was taken by

this Committee immediately after the work was shown to be

completed, more importance could have been given by the

Magistrate to this report and so, the Magistrate gave due

importance to this report. There is one more circumstance that

Shri. Dange who was present on the spot at the time of

measurement taken by the first Committee, did not raise

grievance and this circumstance is not considered by the learned

Judge of the Sessions Court. Fortunately, police had recorded

statements of all the members of this Committee and they are

on record.

18) The second Committee is called as Vigilance

Committee and the report is signed by only one officer whose

designation is Executive Engineer. His report shows that he

visited the spot between 3.12.2013 and 5.12.2013 and again

Cri.W.P.No. 790/16

between 21.1.2014 and 23.1.2014. Here only it needs to be kept

in mind that the work was completed in the financial year 2010-

11. There is always wear and tear due to rain, wind, use etc.

There is also other circumstance like every year or after some

time repairs are again carried out of the same piece.

19) In the complaint itself, the complainant has

contended that he was required to run from pillor to post to

collect the information and every time, the officers of the

department had avoided to supply information, much less the

copies of report. In view of these circumstances, if there was the

direction to the second Committee, the second Committee ought

to have collected the record and ought to have done verification

by visiting the spot, but that was not done and vague excuse is

given by the Committee in respect of the most of the works by

saying that allegations are vague. If one goes through the

second report carefully, it is not difficult to form opinion that this

report was given to cover up the things. many loop holes are

kept in the second report by the Committee and it can be said

that this is done to save it's own skin. On one hand, this

Committee has observed for item No. (iv) that due to passing of

period of three years since the execution of the work, it was not

possible to give specific and clear report/opinion and on other

hand, it is again mentioned that sample holes were taken for

Cri.W.P.No. 790/16

verification and it was found that approximately work which was

to be executed was executed. In first Committee, as many as six

officers of the department were involved. In the second

Committee, only one Officer has signed the report and the

Superintending Engineer has given report that there is no need

to go for second joint measurement. It can be said that second

joint measurement could not have helped to find out the truth as

much time had expired and the possibility of again executing the

same work on same site was not at all considered in the second

report.

20) The Superintending Engineer, who accepted the

second report has given strange reason that post of Shri. Khaja

was of Sub Divisional Engineer and he was only holding the

charge of Executive Engineer and so, he was not competent to

take the joint measurement. The relevant portion of G.R. is

already quoted and it shows that to discard the report given by

the first Committee which was constituted as per the G.R., this

reasoning is not at all acceptable. Other reason is given that

short notice of four days was given to the officers against whom

there were allegations when 20 days notice is required and so,

the report is not binding even on Shri. Dange. Considering the

purpose behind the creation of Committee, this reason also

could not have been accepted by anybody. Shri. Dange had

Cri.W.P.No. 790/16

remained present when the first Committee took the joint

measurement. The other circumstance that when there was the

allegation of the complainant that at the same site,

subsequently more work was executed, attempt was not made

to ascertain on the basis of record as to whether such work was

executed subsequently. These circumstances are sufficient to

create probability that the second Committee tried to cover up

the things.

21) When there are aforesaid circumstances against the

officers of P.W.D., atleast investigating agency ought to have

acted fairly and ought to have made the investigation

independently. It was not open to the investigating agency to

give opinion only on the basis of rank or grade of the two

Committees. The investigating agency was expected to find out

the truth. The report of police does not show that police tried to

find out the truth. In ordinary course, Investigating Officer ought

to have recorded the statements of the persons of that locality,

the persons who were regularly using that road and also the

witnesses whose names were appearing in the record like bills of

the work. That exercise was not done. The investigating agency

could have appointed independent expert and the other expert

could have also ascertained as to whether the work was really

executed in the year 2010-11. But the investigating agency

Cri.W.P.No. 790/16

wrote to department to obtain one more report and that was

done only because respondent Shri. Joshi had objection to the

report prepared by Shri. Khaja. Thus, the investigation was not

made fairly, competently and independently.

22) The Sessions Court has committed serious error in

holding that the learned J.M.F.C. did not consider the entire

material. The Sessions Court ought to have presumed that the

entire material was before the J.M.F.C. as the aforesaid things

were mentioned by police in the report and the papers were

collected by police during investigation. The learned Judge of the

Sessions Court did not consider the circumstance that no

investigation was made by police and only on the basis of report

of the second Committee, which was accepted by

Superintending Engineer and Chief Engineer, opinion was formed

by Investigating Officer that it was a case in which 'C' Summary

Report needs be to be filed.

23) The learned Judge of the Sessions Court has

committed one more error in observing that the prosecution

cannot be allowed against the officers as the contractor, who

allegedly executed the work is not made accused. This

proposition is not correct in law. The main allegations are against

the officers and only due to these officers offence could have

Cri.W.P.No. 790/16

been committed. It is always open to the Court trying the

offence to include other persons who were also responsible for

the offence as provided in section 319 of Cr.P.C.

24) The learned Judge of the Sessions Court has

committed one more error in holding that there is necessity of

sanction under section 197 of Cr.P.C. for taking cognizance of

the matter as against the respondent and other Engineers. On

this point, one case is referred by the learned Judge of the

Sessions Court and reliance is placed on two cases reported as

(2013) 10 SCC 705 [Anilkumar and Ors. Vs. M.K. Aiyappa

and Anr.] and (2016) 9 SCC 598 [L. Narayan Swamy Vs.

State of Karnataka and Ors.]. The facts of the first case show

that it was a matter under Prevention of Corruption Act, 1988

and in view of section 19 (1) (3), the Apex Court had held that

for ordering investigation against the public servant sanction

needs to be obtained and if the matter is referred for

investigation without sanction, reference is bad in law. In the

second matter also, the provision of section 19 of the Prevention

of Corruption Act, 1988 was considered and it was also involving

directions given under section 156 (3) of Cr.P.C. Thus, the main

offence involved was different and the Apex Court was

considering the provision of section 19 of the Prevention of

Corruption Act.

Cri.W.P.No. 790/16

25) On the aforesaid point, the learned counsel for

petitioner placed reliance on the observations made by the Apex

Court in the case reported as AIR 2015 SC 2403 [Inspector of

Police and Ors. Vs. Battenapatla Venkata Ratnam and

Ors.]. In this case, the Apex Court has laid down that if the

public servants get indulged in criminal conduct constituting the

offences punishable under sections 420, 120-B, 468, 471 etc. of

I.P.C., the protection of section 197 of Cr.P.C. cannot be given to

them. This Court has no hesitation to observe that observations

made in this case need to be used in the present matter. There

was no necessity of sanction in the present matter in view of the

nature of allegations made against the Executive Engineer and

other Engineers.

26) The aforesaid discussion, the material and the law

show that the Sessions Court has committed error in interfering

in the order made by the learned J.M.F.C. Such decision cannot

sustain in law.

27) In the result, the petition is allowed. The decision

given by the learned Additional Sessions Judge, Bhokar in

Criminal Revision No. 14/2015 is hereby set aside. The order

made by the learned J.M.F.C., Bhokar in Final Report No. 1/2015

Cri.W.P.No. 790/16

dated 25.5.2015 is hereby restored.

Rule is made absolute in aforesaid terms.

[ T.V. NALAWADE, J. ] ssc/