Gurminder Singh Gill And Others vs State Of Maharashtra Thr. ...
2021 Latest Caselaw 394 Bom

                                       1 / 30      Judgment REVN 208, 209 & 214.2016.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                  CRIMINAL REVISION NO. 208 OF 2016

 Iqbalsingh s/o Manaksingh Soni
 aged about 82 years, occu. Business,
 R/o. Near Hotel Siddarth,
 Civil Lines, Chandrapur,
 Tah. and District Chandrapur                                           .. APPLICANT

          ...V E R S U S...

 Central Bureau of Investigation,
 through the Superintendent of Police,
 Anti-Corruption Bureau, Nagpur                                      .. RESPONDENT

 -------------------------------------------------------------------------------------------

Mr. S. V. Manohar, learned Sr. Counsel a/b Mr. M. P. Khajanchi, Advocate for appellant.

Mrs. Mughdha Chandurkar, counsel for respondent.

-------------------------------------------------------------------------------------------

CRIMINAL REVISION NO. 209 OF 2016

Sevasingh s/o Pyarasingh Kalra aged about 63 years, occu. Business, R/o. BTS Plot, Alpalli Road, Shivaji Ward, Ballarpur, Tq. Ballarpur, Dist. Chandrapur .. APPLICANT

...V E R S U S...

Central Bureau of Investigation, through the Superintendent of Police, Anti-Corruption Bureau, Nagpur .. RESPONDENT

------------------------------------------------------------------------------------------- Mr.S.P.Dharmadhikari, learned Sr. Counsel a/b Mr.M.P.Khajanchi, Advocate for appellant.

Mrs. Mughdha Chandurkar, counsel for respondent.

-------------------------------------------------------------------------------------------

                                        2 / 30      Judgment REVN 208, 209 & 214.2016.odt

                  CRIMINAL REVISION NO. 214 OF 2016

 1) Gurminder Singh Gill, Delhi
    Aged 64 years, Occu. Retired
    R/o. 186-E, Arjun Nagar,
    New Delhi - 110016

 2) A. S. Jagannatha Rao, Chennai
    Aged 65 years, Occu. Retired
    R/o. 84/6, Second Cross Street,
    Basant Nagar, Chennai - 600090
    (Tamil Nadu)

 3) Ramesh Vasant Naphade
    Aged 61 years, Occ. Retired
    R/o. Flat No.03, Swamikrupa Residency,
    Besa Road, Nagpur - 440037                                          .. APPLICANTS

          ...V E R S U S...

 State of Maharashtra through
 Superintendent of Police,
 Central Bureau of Investigation,
 Anti-Corruption Bureau, Nagpur                                      .. RESPONDENT

------------------------------------------------------------------------------------------- Mr.S.P.Dharmadhikari, learned Sr. Counsel a/b Mr.C.S.Dharmadhikari, Advocate for appellant.

Mrs. Mughdha Chandurkar, counsel for respondent.

-------------------------------------------------------------------------------------------

                  CORAM                              :-      MANISH PITALE J.
                  RESERVED ON                        :-      22/12/2020
                  PRONOUNCED ON                      :-      08/01/2021


 COMMON JUDGMENT

                           Heard.

 (2)                       These are three revision applications filed by

the applicants herein challenging a common order dated

3 / 30 Judgment REVN 208, 209 & 214.2016.odt

21/11/2016, passed by the Court of District Judge-4, Chandrapur,

whereby applications for discharge filed by the applicants herein,

were dismissed.

(3) The applicants in Criminal Revision Application

No.214/2016, were employees of SAIL-Chandrapur Ferro Alloy

Plant of the Steel Authority of India Limited, which was known as

Elektrosmelt India Limited. The applicant No.1 in the said

application was the Executive Director of the plant, while

applicant No.2 was General Manager (Finance) and applicant

No.3 was General Manager, (Material Management and

Marketing), at the relevant time. The applicant in Criminal

Revision Application No. 208/2016 was a supplier and Proprietor

from whom the aforesaid plant purchased coal. Similarly, the

applicant in Criminal Revision Application No. 209/2016 was also

another such supplier and proprietor.

(4) The present applications concerned initiation of

investigation by the respondent Central Bureau of Investigation

(CBI) against the applicants and other accused persons. In

pursuance of the enquiry and investigation, the respondent

registered a First Information Report (FIR) on 31/05/2012,

4 / 30 Judgment REVN 208, 209 & 214.2016.odt

against the applicants and others for having committed offences

under Section 420 read with Section 120-B of the Indian Penal

Code (IPC) and Sections 13(2) read with Section 13(1)(d) and 15

of the Prevention of Corruption Act, 1988. The allegation in the

FIR was that the aforesaid plant suffered financial loss to the tune

of Rs.57,47,989/-, due to the criminal conspiracy entered into

between the accused persons, including the applicants herein. It

was alleged that a process of tender initiated on behalf of the said

plant for purchase of coal had reached finality, wherein the lowest

bidders had been identified and instead of placing orders for

purchase of coal, the officials of the said plant, including the

applicants in Revision Application No.214/2016, cancelled the

tender. A process of re-tendering, which was illegal and against

the Purchase/Contract Procedure - 2009 (PCP-09), was initiated

in conspiracy with the applicants in Criminal Revision Applications

No.208/2016 and 209/2016, thereby leading to purchase orders

from such suppliers at a much higher rate, resulting in the said

wrongful financial loss to the plant.

(5) Upon registration of FIR, the investigation was

completed and charge-sheet was filed. In the process, the

respondent recorded statements of a number of witnesses. It was

5 / 30 Judgment REVN 208, 209 & 214.2016.odt

claimed that the oral and documentary material that had come on

record was sufficient to frame charges against the applicants

herein. It was stated in the charge-sheet that specifications

pertaining to the chemical qualities of coal were deliberately

changed in the re-tendering process, as a result of which coal was

purchased at a higher rate as compared to the lowest bids offered

in the initial process of tendering. As per the material placed

before the Court along with charge-sheet, the initial tender was

cancelled by bringing about pressure on the members of the

tender scrutiny committee of the plant and such pressure was

brought by the applicants before this Court. It was claimed that

the entire process of cancellation of the earlier tender and the

process of re-tendering was undertaken in a dishonest manner,

against public interest and this was evident from the fact that the

coal purchased upon re-tendering was 13.54% more expensive

than the rate at which the coal could have been purchased as per

the lowest bids in the initial tender.

(6) At this stage, the applicants filed discharge

applications before the Court below. It was claimed that there was

no material to support the allegations made against the applicants.

It was submitted that even if the material was to be accepted as it

6 / 30 Judgment REVN 208, 209 & 214.2016.odt

is, there were no ingredients of the offences with which the

applicants were sought to be charged. By referring to various

documents pertaining to the two processes of tender, it was

claimed on behalf of the applicants before the Court below that

there was absence of material to frame charge against them.

(7) By the impugned common order dated

21/11/2016, the Court below considered the contentions raised

on behalf of the applicants. The Court below referred to the

documents on which emphasis was placed on behalf of the

applicants and by referring to the law pertaining to considering

applications for discharge, found that there was no substance in

the applications. Accordingly, the applications stood dismissed.

(8) Aggrieved by the said common order passed by

the Court below, the applicants approached this Court. While

issuing notices, this Court granted stay of further proceedings

before the Court below. As a consequence, the trial remained

stayed. The applications were taken up for final hearing and

learned counsel for the rival parties were heard at length.

                                       7 / 30     Judgment REVN 208, 209 & 214.2016.odt

 (9)                       Mr.S.P. Dharmadhikari, learned Senior Counsel

assisted by Mr.C.S.Dharmadhikari, learned Advocate for the

applicant in Criminal Revision Application No.214/2016,

submitted that a perusal of the material on record would show

that no charge could be framed against the applicants, even if the

material that came on record in pursuance of the investigation was

to be accepted. It was submitted that both the tenders were

published and there was nothing to show that the process of

tendering was tweaked in any manner by the applicants in the

aforesaid applications to cause any benefit to the successful

bidders/suppliers of coal. It was submitted that the said

applicants had no control with regard to the persons who would

bid on the basis of the first, as well as the second tender floated on

behalf of the plant. Price bids were not to be submitted in both

the tenders and there was no pre-qualification also.

(10) It was submitted that a comparison of the

technical specifications given in the tenders would show that there

was a marked difference between the two. The decision to cancel

the initial tender was consciously taken when the applicant No.2

in the aforesaid plant being the General Manager (Finance)

analysed the financial implication on the plant as regards the

8 / 30 Judgment REVN 208, 209 & 214.2016.odt

amount that would be paid and the quality of coal that would be

purchased. On the basis of the offers made by two bidders in the

first process of tender showing that there was good quality of coal

being offered, it was thought fit by the said applicant that if the

technical specifications as regards the quality of coal and

corresponding penalty were appropriately modified, it would have

a positive financial implication for the plant. This move was duly

approved by the said committee and it was only thereafter that the

first tendering process was cancelled. By referring to the technical

specifications of the two tenders, it was sought to be highlighted

that there was no scope left for any discretion in the hands of the

officials of the plant. In the second tender process, as regards the

quality of coal, a heavy penalty was provided for supply of coal

that was found to be below a particular minimum standard.

According to the learned Senior Counsel appearing for the said

applicants, this was a move consciously taken on behalf of the

plant, so as to ensure proper quality of coal at the best rate

possible.

(11) It was further submitted that the two bidders

who had participated in the first process of tender and had offered

higher quality of coal did not even participate in the second

9 / 30 Judgment REVN 208, 209 & 214.2016.odt

process of tender and therefore, it could not be said that the

aforesaid decision of cancelling the first tender and initiating the

re-tendering process, was tailor made for any particular supplier

or bidder. It was then submitted that Clause 9.1.4 of the said

Purchase/Contract Procedure - 2009 (PCP-09), clearly provided

that a re-tendering process could be resorted to. It was further

submitted that statements made by committee members during

investigation that they were pressurized by the applicants to

support the decision of cancellation of tender and initiating re-

tendering process, was nothing but the result of the respondent

investigating agency browbeating the said members of the

committee into making such statements.

(12) It was submitted that the decision to cancel the

tender and to initiate the process of re-tendering was a conscious

decision taken in the interest of the plant and there was nothing to

show that any particular bidder or supplier was sought to be

benefited at the cost of the plant. The learned Senior Counsel

further submitted that in view of amendment in the aforesaid Act,

whereby Section 13(1) of the same stood deleted and replaced by

the amended Section 13(1), the matter could not proceed further

against the applicants on the basis of the earlier provision. But, in

10 / 30 Judgment REVN 208, 209 & 214.2016.odt

the written submissions filed on behalf of the said applicants, it

was conceded that as per the latest position of law, the said

argument was not being pressed. But, it was then submitted that

rule of beneficial construction enunciated by the Hon'ble Supreme

Court in the case of T. Barai vs. Henry AH Hoe and another, 1983

(1) SCC 177, and followed thereafter needed to be applied in the

case of the applicants. On this basis, it was submitted that the

matter could not proceed further against the applicants. It was

submitted that when the amended provision could be construed as

beneficial, the applicants were entitled to benefit of the same, in

view of the said position of law. In support of the aforesaid

contentions raised on behalf of the applicants, the learned Senior

Counsel relied upon the judgments of the Hon'ble Supreme Court

in the cases of T. Barai vs. Henry AH Hoe (supra), Nemichand vs.

State of Rajasthan (2018) 17 SCC 448, Trilokchand vs. State of

Himachal Pradesh 2019 SCC Online SC 1912, State through CBI

vs. Dr. Anup Kumar Shrivastav (2017) 15 SCC 560 and State

of Bihar vs. Ramesh Singh (1977) 4 SCC 39.

(13) Mr. Sunil Manohar, learned Senior Counsel

along with Mr. M. P. Khajanchi, learned Advocate for the

applicants, the suppliers/successful bidders, submitted that even if

11 / 30 Judgment REVN 208, 209 & 214.2016.odt

the material placed on record with the charge-sheet was to be

accepted, no suspicion, much less grave suspicion, could be raised

against the said applicants and that therefore, the application for

discharge filed on their behalf ought to have been allowed. It was

submitted that the said applicants had no role to play at all in the

manner in which the officials of the said plant took decision to

cancel the earlier tender and to initiate the process of re-

tendering. By making reference to the technical specification of

coal in the earlier tender and the subsequent one, it was

emphasized that there appeared to be an attempt on the part of

the officials of the plant to ensure supply of better quality of coal,

which would eventually work out more economical for the plant.

It was then submitted that in both the processes of tender a

transparent approach was adopted and there was not even an iota

of evidence to show that the process of the subsequent tender was

sought to be tweaked in favour of the said applicants.

(14) By inviting attention of this Court to Section

120-A of the IPC, it was emphasized that the material available on

record did not indicate any role played by the applicants for

attracting the ingredients of a criminal conspiracy with the officials

of the plant. It was submitted that even a legal inference could

12 / 30 Judgment REVN 208, 209 & 214.2016.odt

not be drawn to that effect against the said applicants. It was

further emphasized that the said applicants as bidders had no role

to play in fixing the technical specifications of the second tender

and the basis of arriving at a figure of loss suffered by the plant by

comparing the price in the second tender with that of the first

tender, was itself fallacious and wholly unsustainable. It was

further submitted that no reference was made to the market price

of the coal at the time when the bids of the said applicants were

accepted, pursuant to the second process of tender.

(15) On the basis of such submissions it was

submitted that there was no question of any penal provision being

attracted in the case of the said applicants, much less the offences

sought to be invoked against them. Reliance was placed on

judgments of the Hon'ble Supreme Court in the case of Union of

India vs. Prafulla Kumar Samal, 1979 (3) SCC 4 and State of M.P.

vs. Sheetala Sahai, 2009 (8) SCC 617.

(16) On the other hand Mrs. Mugdha Chandurkar,

learned Advocate appearing for the respondent submitted that the

Court below was fully justified in rejecting the applications for

discharge filed on behalf of the applicants. It was submitted that

13 / 30 Judgment REVN 208, 209 & 214.2016.odt

the material on record certainly indicated that the applicants

deserved to face trial as grave suspicion was raised with regard to

the manner in which the first tender was cancelled and the

process of re-tendering was initiated. It was submitted that the

Clauses of PCP-09 at various places indicated that when the

process of tender was completed and the stage of placing supply

orders had been reached, the process of re-tendering could be

resorted to only after approval from the next higher authority. It

was submitted that the officials of the plant did not undertake

such a procedure, because they desired to act against public

interest. It was submitted that statements of number of witnesses

recorded by the respondent at various places demonstrated that

the accused officials of the plant brought pressure on the members

of the tender scrutiny committee to give an opinion for

cancellation of the earlier tender and for initiating the process of

re-tendering. According the learned counsel appearing for the

respondent such material was sufficient to raise a grave suspicion

against the applicants, justifying a fulfledged trial in the present

case.

(17) In the written note submitted on behalf of the

respondent, the said stand was reiterated and relevant portions of

14 / 30 Judgment REVN 208, 209 & 214.2016.odt

statements of witnesses were highlighted. The learned counsel for

the respondent relied upon various judgments pertaining to the

factors to be taken into consideration and the duty of the Court

while considering an application for discharge. On the basis of the

said judgments it was submitted that the Court was not expected

to conduct a roving enquiry and it was for the court to come to a

prima facie conclusion on the basis of available material, as to

whether strong suspicion was made out and if that be so, the

discharge applications deserved to be dismissed. Particular

emphasis was placed on judgments of the Hon'ble Supreme Court

in the case of State of Maharashtra vs. Priya Sharan Maharaj

(1997) 4 SCC 393, Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay

Choudhary and others AIR 2009 SC 9, State of M.P. vs. Sheetala

Sahai and others (supra), P. Vijayan vs. State of Kerala and

another, AIR 2010 SC 663. The learned counsel for the

respondent also emphasized on judgments of the Hon'ble

Supreme Court in the case of Satyanarayan Sharma vs. State of

Rajasthan 2001 (8) SCC 607 and Asian Resurfacing of Road

Agency Pvt. Ltd. vs. Central Bureau of Investigation, 2018

Online SC 310 to submit that matters pertaining to offences under

the Prevention of Corruption Act, 1988, are required to be

expedited and that trials ought not be stayed by the revisional

15 / 30 Judgment REVN 208, 209 & 214.2016.odt

Court while considering challenge to orders dismissing

applications of discharge.

(18) Having heard learned counsel for the rival

parties and upon perusal of the material on record, it becomes

necessary to refer to the approach required to be adopted by the

revisional Court, while considering challenge to an order

dismissing an application for discharge. This is crucial, because

sending a person to trial is a serious matter and unless the

material placed on record along with charge-sheet indicates that

the accused needs to face trial, the Court would be slow in

directing that the accused must face trial.

(19) In the judgment in the case of Union of India

vs. Prafulla Kumar(supra), the Hon'ble Supreme Court has

deduced certain principles that need to be applied by the Court

while considering the question as to whether charge needs to be

framed aginst an accused. The said principles have been stated as

follows :-

" 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

16 / 30 Judgment REVN 208, 209 & 214.2016.odt

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

17 / 30 Judgment REVN 208, 209 & 214.2016.odt

(20) This position of law has been followed and

elaborated in subsequent judgments of the Hon'ble Supreme

Court. In the case of State of Maharashtra vs. Priyasharan

Maharaj (supra), the Hon'ble Supreme Court held that at the

stage of considering the question of discharge, the Court is

expected to sift and weigh the material on record only to examine

whether such material discloses a strong suspicion against the

accused. It was further held that such sifting of material was for

the purpose of examining whether a prima facie case was made

out against the accused, further holding that grave suspicion

should arise from the material placed on record.

(21) In the case of Sanghi Brothers (Indore) Pvt.

Ltd. vs. Sanjay Choudhary and others (supra), the Hon'ble

Supreme Court referred to Sections 227, 239 and 245 of the Code

of Criminal Procedure and held that 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 and to see

while considering such a question as to whether the material

brought on record could reasonably connect the accused with the

trial. The case of State of M.P. vs. Sheetala Sahai (supra), has been

relied upon by both the parties. On behalf of the applicants

18 / 30 Judgment REVN 208, 209 & 214.2016.odt

emphasis has been placed on para 34 of the said judgment,

wherein it is stated that a mere error of judgment in a collective

decision ought not to be a ground to proceed for trial while

considering an offence under Section 13(1)(d) of the said Act.

The respondent has relied upon said judgment by emphasizing

upon paragraph 51, which indicates that the tests at the stage of

framing of charge and while recording conviction are completely

different and that the Court must bear this in mind.

(22) In the case of P. Vijayan vs. State of Kerala

(supra), the Hon'ble Supreme Court laid down that at the stage of

Section 227 of the Cr. P. C., the Judge has merely to sift evidence

in order to find out whether or not there are sufficient grounds

for proceeding against the accused and in other words, the

sufficiency of ground would take within its fold the nature of the

evidence recorded by the police or the documents produced

before the Court which ex facie disclose that there are suspicious

circumstances against the accused so as to frame a charge against

him. This position was reiterated by the Hon'ble Supreme Court

in its judgment in the case of Shoraj Singh Ahlawat and ors. vs.

State of UP and another, AIR 2013 SC 52, stating that it needs to

be considered while considering a question of discharge, as to

19 / 30 Judgment REVN 208, 209 & 214.2016.odt

whether there is a ground for presuming that the offence has been

committed and not a ground for convicting the accused. The

above quoted principles laid down in the case of Union of India vs.

Prafulla Kumar Samal (supra) were also relied upon.

(23) In view of the above position of law reiterated

by the Hon'ble Supreme Court, it needs to be examined whether

applying the aforesaid principles, it can be said that the Court

below in the present case committed an error in rejecting the

applications for discharge filed on behalf of the applicants. It has

been specifically contended on behalf of the applicants before this

Court that even if the material that has come on record with the

charge-sheet is accepted as it is, there is no reason why the

applicants should be made to face trial. In other words, the

applicants have boldly contended that there is total absence of any

material to raise even a suspicion against them and that therefore,

the applications for discharge ought to have been allowed.

(24) In this context it would become necessary to

now appreciate the material brought on record along with the

charge-sheet. The basic case of the respondent appears to be that

the officials of the said plant, who are applicants in Criminal

20 / 30 Judgment REVN 208, 209 & 214.2016.odt

Revision Application No.214/2016, conspired with the suppliers of

coal/successful bidders i.e. applicants in Criminal Revision

Application No.208/2016 and 209/2016, to cause financial loss

to the aforesaid plant and that such activity on their part

constituted the ingredients of the offence under Section 13(1)(d)

of the aforesaid Act. A perusal of the aforesaid provision would

show that on the basis of material available on record, the relevant

offence would be Section 13(1)(d)(iii) of the said Act, insofar as

the officials of the said plant are concerned and the suppliers

would be concerned with Section 120-B of the IPC.

(25) In this regard much emphasis was placed by

the learned counsel appearing for the applicants on the technical

specifications of the two tenders and it was sought to be

demonstrated how the technical specifications in the second

tender were much more stringent, so as to ensure supply of

highest quality of coal. It was claimed that the technical

specifications of the first tender left certain discretion in the hands

of the officials and that there was some confusion in working the

process as per the said specifications, which necessitated

cancellation of the tender, and initiating the process of the re-

tendering. It was submitted that a perusal of the technical

21 / 30 Judgment REVN 208, 209 & 214.2016.odt

specifications in the second tender, whereby stringent conditions

were imposed for ensuring supply of high quality coal, would

show that such an action was, in fact, for the benefit of the plant.

It was claimed that application of the technical specifications of

the second tender would have the effect of high quality coal being

supplied to the plant, which would work out more economical.

On this basis it was submitted that the officials of the plant took a

considered decision to cancel the initial tender and to initiate the

process of re-tendering, which by no stretch of imagination could

be said to be an offence.

(26) It was further submitted that increase in price

of coal to the extent of 13.54%, by comparing the price in the

second tender with the first tender was an erroneous approach

adopted in the investigation, because the two prices could never

be compared. It was claimed that the first tender pertained to a

different month of that particular year and the second tender

pertained to a month much later in the year and that price

fluctuations in the market were always prevalent. It was

submitted that no material was brought on record to show that the

market price of the coal when the second tender was floated was

lower than the price at which the bids of the suppliers were

22 / 30 Judgment REVN 208, 209 & 214.2016.odt

accepted in the said tender. On this basis, it was submitted that

there was hardly any material to infer any criminal liability.

(27) In this context, the learned counsel for the

respondent placed much emphasis on the statements given by

witnesses, which were recorded during the course of investigation.

It was submitted that a perusal of the statements would show that

the officials of the plant, who are applicants before this Court, not

only violated the procedure as prescribed under PCP-09, but, they

deliberately acted in a manner which prima facie indicated that

ingredients of the offence under Section 13(1)(d) of the said Act

read with Section 120-B of the IPC, were clearly made out.

(28) A perusal of the aforesaid material on record

would show that admittedly the first tender floated on behalf of

the said plant had reached its final stage and the tender scrutiny

committee of the plant had recommended placement of orders for

supply of coal to three parties. One M/s. L. J. Chandel (L-1) was

to supply 60%, applicant in Criminal Revision Application

No.208/2016 was to supply 25% and applicant in Criminal

Revision Application No.209/2016 was to supply 15%. Thus, not

only was the entire process completed for supply of coal, but, even

23 / 30 Judgment REVN 208, 209 & 214.2016.odt

the recommendation for placement of orders had been made. In

fact, on 09/07/2010, a note was prepared with the concurrence

and approval of applicant No.1 in Criminal Revision Application

No.214/2016, for placing orders in the aforesaid proportion to the

said three parties. It is at this stage that the applicant No.2 in the

said application made a suggestion in writing that the tender

scrutiny committee of the plant may be advised to re-submit their

recommendations. This was ostensibly for the reason that two

bidders in the process of the first tender had offered coal of higher

grade quality. This triggered meetings of the tender scrutiny

committee and the committee submitted a report indicating that

there was some ambiguous situation or alleged confusion in

evaluation of the offers. This was allegedly on the basis that the

technical specifications of the tender stated about fixed carbon of

the coal being 65% (indicative) rather than a fixed minimum.

Thereupon, the sequence of events occurred resulting in approval

given by the applicant No.1 in Criminal Revision Application

No.214/2016, calling for fresh tenders and abandoning the first

tender completely.

(29) In the second tender the technical

specifications stated that fixed carbon of the coal would be 65%

24 / 30 Judgment REVN 208, 209 & 214.2016.odt

minimum rather than 65% indicative and certain penalty clause

was added, if the fixed carbon percentage was found to be less.

Now this is claimed by the applicants to be a step taken for

ensuring supply of higher quality of coal to the plant. But, the

material on record shows that when reverse auction in the re-

tendering process was undertaken, only six parties participated

and the applicant in Criminal Revision Application No.209/2016

was found to be L-1 and applicant in Criminal Revision

Application No. 208/2016 was found to be L-2. The bid amount

was admittedly higher per metric ton of coal as compared to the

bid price in the first tender. The fact that the price of the coal in

pursuance of the re-tendering process was about 13.54% higher is

not disputed. Consequently, the plant was required to pay a

higher amount for supply of coal, resulting in higher financial

liability. The material on record does show that while the

applicants in Criminal Revision Application No.208/2016 and

209/2016 were L-2 and L-3 in the first tendering process and they

could have supplied 25% and 15% of the coal, as a consequence of

the re-tendering process they were L-1 and L-2 and the bid

amount per metric ton of coal was admittedly higher.

25 / 30 Judgment REVN 208, 209 & 214.2016.odt

(30) When this is appreciated in the context of

statements of witnesses recorded by the respondent, what comes

on record is that the members of the tender scrutiny committee

claimed to have been pressurized by the applicants in Criminal

Revision Application No.214/2016, for submitting report for

cancellation of the first tender, to facilitate initiation of the re-

tendering process. For instance, statement of witness No.23 who

at the relevant time was Manager (Finance) of the plant, shows

that the members of the tender scrutiny committee were reluctant

to change the earlier report of the committee, but they were

strongly persuaded by the applicants in Criminal Revision

Application No.214/2016 to submit such a report, the fallout of

which was cancellation of the first tender, that had reached its

finality, thereby facilitating the re-tendering process. A perusal of

the statement of witness No.26, who was Deputy General Manager

of the plant shows that he specifically stated about pressure

brought about by the applicants in Criminal Revision Application

No.214/2016, for re-evaluation of the tender, particularly on

technical specifications. In fact, the said witness states that no

other option was left to the tender scrutiny committee members,

but to submit a revised report for facilitating the re-tendering

process.

                                   26 / 30    Judgment REVN 208, 209 & 214.2016.odt

 (31)                      This Court is of the opinion that the aforesaid

material on record demonstrates that the first tender process,

which had not only reached its conclusion, but even the stage of

placing orders with the specific approval of Executive Director of

the plant i.e. applicant No.1 in Criminal Revision Application

No.214/2016, had been reached, was abruptly abandoned, to

facilitate re-tendering process. The presence of applicants in

Criminal Revision Application Nos. 208/2016 and 209/2016 as L-

2 and L-3 with only 25% and 15% of supply available to them and

then the same parties being L-1 and L-2 in pursuance of the

second tendering process where admittedly the price of coal per

metric ton was higher, does raise grave suspicion with regard to

the manner in which the entire process was undertaken.

(32) The statements of the witnesses recorded

during the course of investigation and brought to the notice of this

Court also indicate that there is sufficient material to raise

suspicion against the applicants herein. As per the position of law

reiterated by the Hon'ble Supreme Court, the evidence recorded

by the investigating agency and the documents produced before

the Court do disclose suspicious circumstances against the

applicants (accused) for framing of charges against them. The

27 / 30 Judgment REVN 208, 209 & 214.2016.odt

material on record does lead the Court to form a presumptive

opinion as to the existence of the factual ingredients constituting

the said offence and there are grounds for presuming that the

offence has been committed. At this stage the Court is not

required to ascertain that there are grounds for convicting the

accused (applicants herein). The test to be applied at this stage, is

as to whether a prima facie case is made out against the

applicants. This Court finds that perusal of the statements of the

witnesses recorded during investigation, the procedure prescribed

under PCP-09 and the fact that the plant had to pay much higher

amount for supply of coal, which was against public interest,

demonstrates that a prima facie case does exist against the

applicants before this Court.

(33) The emphasis placed on behalf of the

applicants, who are the suppliers of coal before this Court, that

Section 128-A of the Cr. P. C. which defines criminal conspiracy

would not at all apply in the facts and circumstances of the

present case, has not impressed this Court and the material on

record indicates that the applicants need to face trial. This Court

is of the opinion that the material available on record, when put to

scrutiny on the basis of the aforesaid settled position of law, is

28 / 30 Judgment REVN 208, 209 & 214.2016.odt

enough to raise a grave suspicion, indicating that no error can be

attributed to the Court below for dismissing the applications for

discharge filed on behalf of the applicants.

(34) Although initially an argument was sought to

be made in view of the amendment of Section 13(1) of the said

Act, the said argument was not pressed in the written submission,

in the face of the admitted position of law. But, even the other

argument raised on behalf of the said applicants that they need to

be given advantage of the rule of beneficial construction, can also

not be accepted. This Court is of the opinion that reliance placed

on the judgment of Hon'ble Supreme Court in the case of T.Barai

vs. Henry (supra) is also misplaced. This is because in the said

judgment itself the Hon'ble Supreme Court has clarified that the

rule of beneficial construction will not apply where the essential

ingredients of the two offences are different. In this context a

perusal of Section 13(1)(d) of the said Act i.e. the offence for

which the applicants are sought to be charged, would show that

the ingredients of the same are different from ingredients of the

offence in the amended Section 13(1) of the said Act. Therefore,

there is no question of applicability of the rule of beneficial

construction in favour of the applicants before this court.

29 / 30 Judgment REVN 208, 209 & 214.2016.odt

Consequently, there is no substance in the reliance placed on

behalf of the applicants on the judgments of the Hon'ble Supreme

Court in the case of Nemichand vs. State of Rajasthan (supra) and

Trilok Chand vs. State of H. P. (supra).

(35) In fact, the learned counsel for the respondent

is justified in relying upon judgments of the Hon'ble Supreme

Court in the cases of Satyanarayan Sharma vs. State of Rajasthan

(supra) and Asian Resurfacing of Road Agency Pvt. Ltd. vs.

Central Bureau of Investigation(supra), wherein much emphasis

has been placed by the Hon'ble Supreme Court on the need for

expedited trials concerning offences under Prevention of

Corruption Act, 1988. The Hon'ble Supreme Court has come down

heavily on stay of trials, pending challenge to orders dismissing

applications for discharge. In the present case it is found that the

applicants have been enjoying interim order of stay of proceedings

before the Trial Court since the year 2016, till this Court took up

the applications for final hearing and disposal. The trial has

remained stayed for better part of four years and since this Court

has found that there is no substance in the contentions raised on

behalf of the applicants, appropriate directions need to be given,

while holding against the applicants.

30 / 30 Judgment REVN 208, 209 & 214.2016.odt

(36) In view of the above, this Court finds that there

is no substance in the contentions raised on behalf of the

applicants before this Court. The Court below was justified in

dismissing the applications for discharge. Accordingly, the present

Criminal Revision Applications are dismissed. The Court below is

directed to take up the trial proceedings expeditiously and to

conclude them at the earliest. No costs.

JUDGE

KOLHE/P.A.