Calcutta High Court (Appellete Side)
Puskar Sarkar vs The State Of West Bengal on 29 August, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 96 of 2020
Puskar Sarkar
Vs.
The State of West Bengal.
For the petitioner : Mr. Milon Mukherjee,
Mr. Dattatraya Dutta.
For the State : Mr. Ranabir Roy Chowdhury,
Mr. Arijit Ganguly.
Hearing concluded on : 02.08.2023
Judgment on : 29.08.2023
Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of
proceedings being G.R. Case No.4031 of 2019 which arose out of
Berhampore Police Station Case No.1176 dated 14.09.2019 under Sections
420/406/408 of the Indian Penal Code, pending before the Court of the
learned Chief Judicial Magistrate, Murshidabad.
2. The petitioner's case is that Berhampore Police Station Case No.1176
dated 14.09.2019 under Sections 420/406/408 of the Indian Penal Code
was registered for investigation pursuant to the receipt of a letter of
complaint dated 12.09.2019 addressed to the Officer-in-Charge,
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Berhampore Police Station from the Executive Officer, Berhampore
Municipality.
3. The said letter of complaint was inter alia, filed as per instructions of
Badri Narayan Kar, WBCS(Exe), State Missions Director, AMRUT, vide
Memo No.462/MA/Amrut/E-74/2019 dated 5.8.2019 to lodge a First
Information Report against the petitioner for corruption to tender process of
various development works of Berhampore Municipality.
4. It is submitted that the petitioner is innocent and in no way
connected with the alleged offences. The contents of the complaint are vague
and misconceived.
5. The petitioner was granted reliefs as provided under Section 438 of
the Code of Criminal Procedure by this Hon'ble Court vide order dated
01.10.2019 passed in C.R.M. No.9243 of 2019.
6. The petitioner being a Civil Engineer having requisite qualification
and also being a Bachelor of Technology was found eligible for the post of
'Urban Infrastructure Expert' under AMRUT and was appointed on 9th
November, 2016 by the Berhampore Municipality. The terms and conditions
for such engagement inter alia, are as follows:-
i) The engagement is purely temporary in nature for a period of
one year.
ii) The engagement may be terminated with at least one month's
notice from both the respondent no.1 and the incumbent.
iii) The candidate was eligible for a monthly consolidated
remuneration of Rs.50,000/-
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7. It is further submitted that it will be apparent from the monthly
certificates issued by the Chairman/Executive Officer to the State Mission
Directorate, AMRUT, West Bengal that the petitioner's performance was
and/or worked satisfactorily as per his assignment assigned to him as
Urban Infrastructure Expert under AMRUT.
8. That the State Mission Directorate, AMRUT, West Bengal as well as
the Berhampore Municipality, being satisfied with the performance of the
petitioner, vide Memo No.81/AMRUT/17/B.M/KUSP dated 6.11.2017 and
Memo No.178/AMRUT/IS/KUSP/BM dated 12.10.2018, extended his
engagement on the same terms and conditions of Memo No.1235/BM/2016
dated 9.11.2016 and Memo No.115(8)/MA/AMRUT/E-11/2016 dated
6.3.2018 for a further period of one year from 9th November, 2017 to 9th
November, 2018 vide another Memo No.178/AMRUT/IS/KUSP/BM dated
12.10.2018. The engagement of the petitioner was extended for a further
period of twelve months with effect from 9th November, 2018.
9. As the third tenure of the petitioner was coming to an end on 8th
November, 2019, the Executive Officer, Berhampore Municipality in absence
of the Chairman, Berhampore Municipality issued a performance report of
the petitioner, by appreciating his valuable and technical inputs for
implementation of various projects under AMRUT and other infrastructural
programmes by his Memo No.219/AMRUT/19/BM dated 10.07.2019.
10. That though the engagement of the petitioner was extended till 8th
November, 2019 and was terminable with at least one month's notice from
the Berhampore Municipality or by the petitioner, he was shocked and
surprised upon receipt of a Memo being Memo No.1119/2019/BM dated
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29.08.2019 inter alia, terminating his engagement vide memo
No.462/MA/AMRUT/E-74/2019 dated 5.08.2019 and note sheet order
dated 22.08.2019 dated 29.08.2019.
11. Being aggrieved by and dissatisfied with the termination as aforesaid,
the petitioner preferred a writ petition under Article 226 of the Constitution
of India before this Hon'ble Court and the said application was registered as
W.P. No.1761 (W) of 2019.
12. That in order to frustrate the petitioner's prayers in the aforesaid writ
petition, the respondent authorities therein have initiated the present First
Information Report on the 12th of September, 2019 and to create pressure
upon him to merely coerce him into submission in order to circumvent the
unlawful and illegal act of his termination and to thwart the writ petition
filed by him, the respondent authorities therein in active connivance with
the State Mission Directorate, AMRUT, have lodged a frivolous and untrue
First Information Report against the petitioner before Berhampore Police
Station on the ground of alleged corruption in processing tender document.
The question of defalcation and/or misappropriation of fund cannot and
does not arise as the petitioner has/had no access and/or authority at all to
the tendering activities of the respondent authorities in the aforesaid writ
petition.
13. It is submitted that the respondent authorities in the aforesaid writ
petition are highly placed, powerful officials who can go to any extent to
cover up their misdeeds by creating and/or lodging false and frivolous
complaints against the petitioner, thereby indirectly threatening him and/or
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pressuring him to withdraw the present writ petition by maligning him in
general.
14. It is submitted that the allegation of being involved in "corruption in
tender process" is as vague as it is absurd since the petitioner was not a
part of the Tender Committee constituted in terms of the Government Order
No.46/MA/O/C-4/2M-11/2017 dated 15th January, 2018 comprising of the
following members:-
A. Chairman, Berhampore Municipality;
B. Finance Officer, Berhampore Municipality;
C. Executive Engineer of Murshidabad Division, Municipal
Engineering Directorate;
D. Assistant Engineer of Murshidabad Division, Municipal
Engineering Directorate.
15. Vide a letter bearing Memo No.365/KUSP/18/BM dated 15th March,
2019, the Administrator, Berhampore Municipality addressed to the
Joint Secretary, Government of West Bengal, Green City Mission,
Department of Urban Development and Municipal Affairs, placed on
record the following facts:-
a. The petitioner did not have any stake to call upon
tenders for the schemes mentioned in the said letter;
b. The tenders were called upon as per the
instructions of the Chairman, Berhampore
Municipality;
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c. The tenders were called maintaining all financial
and administrative guidelines of the Government of
West Bengal;
d. The process of floating tenders was made for an
emergency purpose (for the beautification of
Berhampore Municipality) as there was information of
the visit of the Hon'ble Chief Minister during October,
2018.
16. It is submitted that the absurdity of the allegation of "corruption in
the tender process" is strengthened by the contents of Memo
No.578(19)/MA/AMRUT/E-6/2015(Pt-IV) dated 24th September, 2018
issued by the Mission Director, AMRUT, West Bengal. In the said memo
instructions have been given to the Chairman of Berhampore Municipality
to initiate the tendering process in case of DPRs and to issue LoI/Work
Order in case of tender immediately in vision of complete implementation of
projects in stipulated time period.
17. The Kolkata Metropolitan Development Authority has issued a general
certificate dated 14th November, 2018 certifying that upon verifying the E-
tender process and E-tender documents those were found to have been
issued, maintaining all such administrative guidelines of the Government of
West Bengal without any irregularities.
18. Subsequent payment to various vendors on satisfactory completion of
supply and laying of DI pipes within different wards of Berhampore
Municipality under the water schemed were made under the instructions of
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the Administrator, Berhampore Municipality, after verifying the genuineness
of the E-tendering process and E-tender documents.
19. The payment against the work done under the "Karmatirtho" Scheme
was made to the selected vendors upon the instructions of the Chairman,
Berhampore Municipality, after verifying the quality of the finished work
and apropos recording his satisfaction of the E-tendering process and E-
tender documents.
20. That each of the tenders passed in favour of SAMR Industries was
after it was approved by the State Level Technical Committee and the
certification given by the Chairman, Berhampore Municipality after re-
evaluation and getting assured that SAMR Industries qualified technically
and had won the tender by bidding the lowest. In such circumstances, there
is no question of interference by the petitioner in the entire process and as
such, the allegation against the petitioner cannot be sustained.
21. The Chairman of Berhampore Municipality vide letter dated
16.03.2017 clarified the position of the present petitioner that he does not
have any stake to call, update and evaluate (Technical and Financial),
preparation of BOQ (Bill of Quantity) Comparative Chart of any tender
(Online, Offline and Quotation) of Berhampore Municipality.
22. Mr. Milon Mukherjee learned senior counsel appearing for the
petitioner has submitted that the impugned proceeding is a gross abuse of
the process of court which if allowed to continue will degenerate itself into a
weapon of harassment and persecution and as such the same is liable to be
quashed for the ends of justice.
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23. The impugned proceeding is vexatious, malafide and has been
initiated with malafide intent just to harass and humiliate the petitioner,
who is innocent and in no way connected with the alleged offences.
24. That the petitioner was not even a member of the Tender Committee
which had the authority to pass the tenders and as such, had no role to
play whatsoever in the entire process of passing the tenders. Moreover, the
entire proceeding was made online (through internet) where no human
intervention is possible in order to manipulate the outcome of the biddings
and as such, the impugned proceedings is liable to be quashed.
25. That payment against the work done under the "Karmatirtho" Scheme
was made to the selected vendors upon the instructions of the Chairman,
Berhampore Municipality, after verifying the quality of the finished work
and apropos recording his satisfaction of the E-tendering process and E-
tender documents. The petitioner had no role to play in the entire aforesaid
process of passing the E-tender and as such the proceeding impugned
cannot be sustained in the eye of law and liable to be quashed.
26. That the complaint is made by a person having no technical expertise
in understanding the entire procedure of passing E-tenders and has merely
acted upon the advice of persons having malafide intentions against the
petitioner and as such it is expedient in the interest of justice, to uphold the
dignity of law that the impugned proceeding is quashed and/or set aside
being bad in law.
27. Supplementary affidavit has been filed by the petitioner in respect of
documents, from which it appears that the Executive Officer of Berhampore
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Municipality has filed the present complaint, against the sole accused, the
petitioner on 12.09.2019, (FIR is dated 14.09.2019).
28. On the complaint of one Bimalendu Bose, to the office of the Chief
Minister, against the petitioner for corruption in tender process, an enquiry
was conducted by the DMDC, Murshidabad, Malay Sankar Chattopadhyay,
who submitted his report, which was forwarded to the SDO, Berhampore.
The SDO, Berhampore, forwarded the report to the District Magistrate
recommending removal of the petitioner and initiation of vigilance enquiry.
Then on the consent of the Principal Secretary, Urban Development and
Municipal Affairs Department, the State Mission Director, AMRUT, West
Bengal requested the Administrator of Berhampore Municipality to lodge a
FIR against the petitioner.
29. Mr. Ranabir Roy Chowdhury, learned counsel for the State has
placed the case diary along with a short notes of argument. Mr. Roy
Chowdhury has submitted that:-
(i) No such Tender committee was formed during tender period.
(ii) Petitioner was authorised to use the Digital Signatures of the
authorities for E-Tendering process.
(iii) The petitioner used the Digital Signature of Nirmalendu Mondal and
others without their consent, as per statement recorded under Section
161 of the Code of the Criminal Procedure.
(iv) During the investigation it transpired that one SAMR IDUSTRIES
received the maximum tenders of Berhampore Municipality without
proper verification. The petitioner passed all such tender process.
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(v) Audit Report of Berhampore Municipality clearly depicted the violation
and irregularities in the tender process.
30. Charge sheet was submitted in the instant case against the petitioner
under Sections 420/406/408 IPC.
31. From the materials on record including the case diary the
following facts are before this court:-
A) One Bimalendu Bose sent a complaint to the Chief Minister's office,
only against the petitioner, calling for an enquiry and vigilance
inquiry against the petitioner, who was appointed as an URBAN
INFRASTRUCTURE EXPERT on Contractual basis.
An example of such recruitment notice is as follow:-
"An Employment Notice No. R-AMRUT/1/15- 16 describe the
requirement of an Urban Planner /Urban Infrastructure
Specialist for recruitment in Department of Municipal Affairs
(Titagarh Municipality) under AMRUT on Contract Basis *
Urban Planner /1 Post
Qualification: Post Graduate degree in Planning / Social Science
/ Architecture / Civil Engineering having specialization / paper
in urban development or planning or environment related
subjects. c) Experience: Urban Planner / Management Expert,
with strong background in project management with 3-5 yrs in a
managerial position. Experience in working with Urban
Development Programmes. Experience in Urban Reforms and
Capacity Building programmes for ULBs
Urban Infrastructure Specialist/1Post
Educational Qualification: Graduate engineer form recognized
university. Have a broad range of experience in urban
infrastructure and a strong background in public health
engineering, especially water supply and sanitation.
c) Experience: Have at least 3-5 yrs. Experience in designing
and managing Municipal infrastructure projects. d) Other
Qualifications: Be very familiar with the laws and procedures of
the Indian Municipal environment."
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B) An enquiry was held by the DMDC, Murshidabad, wherein, the
prima facie findings as given, is as follows:-
"i) The complaint was mainly related to:-
(a) Credential of SAMR Industries.
(b) Tender Committee in Municipality.
(c) Quality of work by the agency.
In this connection Bimalendu Sarkar referred the following works:-
(a) Market Complex under Karmatirtha.
(b) Water ATM under Green City Mission.
(c) Drain under AMRUT.
(d) Laying of pipe as well as supply of pipe.
ii) The complaint further stated that as per information
received from the Beharampore Municipality, no tender
committee was formed, for this work. Normally an institution
has a tender committee to float tenders, here, according to
Municipality, no such tender committee was in vogue in the
municipality. But it is true that the work was float through e-
tender vide number 144 of 2017-18. DSC (Digital Signature
Certificate) were used by Sri Puskar Sarkar, so it may be
presumed that Sri Puskar Sarkar was responsible for this tender
process. (The comparative statement was created by Puskar
Sarkar, Tender ID 2018_MAD_152993_1).
iii) The second call vide no. 144 of 2017-18 was matured and
SAMR Industries was the lowest bidder in the Bid.
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iv) Actually, GR Traders was a contractor under Water
Sanitation Support Organization PHED, Betkuchi, Guwahati-35
and SAMR Industries worked under the GR Traders.
v) The comparative statement for the number (ii) work
was created by Sri Puskar Sarkar on 31.05.18 itself, i.e.
the day of certification of 60% work done.
And the comparative statement for number (i) was created by Sri
Sarkar on 16.07.18. In my opinion, (DMDC, Murshidabad) the
credential, used by the SAMR Industries for the purpose of
taking part in the tender process, issued by the
municipality, is non realistic in nature.
vi) The DMDC (enquiry officer) further stated that for this work
63 e-tender was floated, but as per report of Municipality there
was no formal tender committee. It is noticed that two persons
prepared the comparative statement (1) Puskar Sarkar (2) Dilip
Banerjee. So it may be taken that both were in tender
committee. All the comparative statement was created on
01.08.18.
vii) In far in my opinion (DMDC‟s) the credential used in the
tender are not justifiable (except Electrosteel Casting Ltd. in
connection with laying of Pipe line with supply and GS Enterprise
for laying works) with the work for which the tenders were called,
and as a technical person Sri Puskar Sarkar should guide the
municipality.
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viii) I have no comment (DMDC) with regard to the quality of
work, it may be enquired by any technical person.
Here it may be mentioned that Sri Puskar Sarkar is a contractual
employee of the municipality holding the designation "Urban
Infrastructure Expert" and authorized by the Office of the
Executive Engg., MED Murshidabad Division, to record day to day
entry in MB as junior Engg. for "The Construction of shelter for
urban Homeless"."
C) This Court finds that an inspection report on the audit of
transactions of Berhampore Municipality for the period from
01.04.2018 to 31.03.2019 was submitted and several
irregularities was detected against the Municipality
authorities, but the petitioner was not held responsible for any
of such irregularities.
Annexure-A vide Para 2 of part -IIB no.8 relates to irregularities in
the tender procedure in respect of government notification No.5400F(Y)
dated 25.06.2012.
D) On completion of investigation police submitted Charge sheet in
Berhampore P.S. case No.1176/2019 under Sections 420/406/408
of IPC, with the findings that:-
"After perusal of the all seized and collected
documents it came to learn that e tendering process are in
order and followed one and every rules and regulation of
finance notification of Government of West Bengal. All
relevant papers of bidders i.e. credential, Machinery etc. are
not verified by the F.I.R named accused Puskar Sarkar. No
such Tender committee found in the Municipality as per
record and Digital Signature of Sri Nirmalendu Mondal,
Assistant Engineer, Sri Pankaj Kumar Chawdhyury, Sub
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Assistant Engineer and Dilip Kr. Banerjee. Head clerk, all of
Berhampore Municipality used by Puskar Sarkar Urban
Infrastructure Expert of Berhampore Municipality,
Berhampore, Murshidabad illegally without any information
them."
32. On close examination of the materials on record in the present
case, several discrepancies/irregularities are apparent on the face of it:-
i) The petitioner was appointed on 09.11.2016.
ii) Annexure P-5 at page 74 is memo
no.219/AMRUT/19/BM dated 10.07.2019. This is a performance
report of the petitioner issued by the Executive Officer of the
Berhampore Municipality stating that his performance was
satisfactory.
iii) Vide another memo being No.1119/2019/BM dated
29.08.2019, the Executive Officer, terminated the service of the
petitioner as per order of the State Mission Director, AMRUT,
West Bengal and the Administrator, Berhampore Municipality.
iv) The petitioner preferred a writ petition against such
termination.
v) Vide memo No.135/KUSP/18/BM dated 02.07.2018,
the Executive Engineer, Murshidabad Division had certified
that:-
"after examination it is found that all the tender papers
are in order in all respect. It is also ensured that all
rules and regulations of e-tender have been observed to
our satisfaction as per all relevant Finance Notification of
Government of West Bengal from time to time. The
bidders documents such as credential, GST Registration,
PAN No., Machineries, Technical Person, Credentials,
Bank solvency I.T return, P.T.C.C, Bye Law, Audit Report
of Last Three years, Trade License/Registration
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Certificate, Earnest money, invoice of machineries have
been verified properly in order."
Sd/-
Chairman
Berhampore Municipality
vi) The Administrator, Berhampore Municipality, vide
Memo No.365/KUSP/18/BM dated 05.03.2019 certified that:-
"1) Sri Puskar Sarkar, UIE, Berhampore Municipality
did not have any stake to call upon the tenders for the
schemes mentioned attached with the aforesaid letter.
2) The tenders were called upon as per the
instruction of the Chairman of Berhampore
Municipality.
3) The tenders were called maintaining all the
financial and administrative guidelines of
Government of West Bengal.
4) The process of floating tenders on emergency
purpose in this case as there was information of visit of
Hon'ble Chief Minister during October 2018 for
beautification of Berhampore Municipality."
Sd/-
Administrator
Berhampore Municipality
vii) By Memo No.578(19)/MA/AMRUT/E-6/2015(Pt-IV) dated
24.09.2018 the State Mission Director, AMRUT, West Bengal
informed the Chairpersons and Commissioners of several
municipalities the name of DPRs as well the name of tenders
which were apprised/approved by the Chairman, State Level
Technical Committee (SLTC) under AMRUT.
"You are requested to initiate the tendering process
in case of DPRs and to issue LoI/Work Order in case
of tender immediately in vision of complete
implementation of projects in stipulated time period."
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At serial no.16 are the projects related to Berhampore
Municipalities.
viii) By a certificate dated 14.11.2018 issued by the
Executive Engineer, EM-Sector, KMDA, it was certified:-
"That I have checked and verified of E-tender process
for Electro-Mechanical Scheme under Green City Mission as
detailed mentioned below:-
1. Supply, fitting and fixing of LED street Light(120 Watt) in
existing poles at different Roads and Places within
Berhampore Municipality Area(Under Green City Mission).
2. Supply, fitting and fixing of LED street light (90 Watt) in
existing poles at different Roads and Places within
Berhampore Municipality Area (under Green City Mission).
3. Supply, installation, Testing and Commissioning of Water
ATM with allied works (Electro-Mechanical Part) in different
wards within Berhampore Municipality Area (under Green
City Mission).
4. Supply, Erection, fitting and fixing of 16 Mtr High Mast (12
nos) with LED floor lights at different places for
beautification work within Berhampore Municipality Area
(under Green City Mission).
5. Supply, erection, fitting and fixing of 12.5 Mtr High Mast
(12 nos) with LED flood lights at different places for
beautification work within Berhampore Municipality Area
(under Green City Mission).
I have scrutinised the E-tender process and verified
the all E-tender documents for the above mentioned
scheme and found it to be maintaining all the financial and
administrative guideline of Government of West Bengal without
any irregularities."
Sd/-
Executive Engineer (E)
Electrical Circle-I
EM-Sector, KMDA
ix) Annexure P-12, is a certificate dated 05.03.2018, issued
by the Chairman, Berhampore Municipality regarding verification
of the tender process. He has certified:-
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"This is to certify that I have checked and verified of E-
Tender process for construction of Market Complex under
Karmatirtha within Berhampore Municipality vide E-Nit
No.144 of 2017-2018. I have examined the E-tender
process and verified all the financial and
administrative guidelines of Government of West
Bengal without any irregularities."
Sd/-
Chairman
Berhampore Municipality
x) By a certificate dated 25.09.2018 the Chairman,
Berhampore Municipality and the Superintending Traffic and
Transportation Engineer certified regarding SAMAR industries as
follows:-
"That I have re-examined the technical and financial
capability of SAMR Industries and other concerned agency
for construction of high drain under AMRUT within
Berhampore Municipality. I have examined E-tender
Process and verified the all tender documents to
maintain all financial and administrative guideline
without any irregularities. After that the work order
issued to the concerned agency."
Sd/-
Chairman
Berhampore Municipality
xi) A certificate dated 16.03.2017 issued by the
Chairman, Berhampore Municipality is as follows:-
"Puskar Sarkar UIE, Berhampore Municipality do not have
any stake to Call, Updating and Evaluation (Technical and
Financial), Preparation of BOQ Comparative chart of any
tender (Online, Offline and Quotation) of Berhampore
Municipality."
Sd/-
Chairman
Berhampore Municipality
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xii) Though the Enquiry Officer and the Investigating Officer
both have based their total case on their finding that no tender
committee was formed by the Berhampore Municipality, it is seen
that vide Memo No.56 dated 05.03.2018, the Chairman,
Berhampore Municipality had constituted the following tender
committee of which, the petitioner was not part of.
The said order is as follows:-
"Memo No.56(A)/KUSP/TEND/18/BM dated 05.03.2018
ORDER
In terms of Government Order the following tender committee
have been constituted as stated under:-
1. Chairman, Berhampore Municipality- Chairman of Tender
Committee
2. Finance Officer, Berhampore Municipality - Member & Convenor
of Tender Committee
3. Superintend Engineer, TP&TE, Transport Department- Member of
Tender Committee, Government of West Bengal.
Accordingly, the tender committee has scrutinised the
tender document which is as follows:-
1. Construction of Market Complex under Karmatirtha within
Berhampore Municipality vide NIT No.144 of 2017-18.
After examination it is found all the tender papers
are in order in all respect. It is also ensured that all rules
and regulations of E-Tender have been observed to our
satisfaction as per all relevant Finance notification of
Government of West Bengal from time to time. The bidders
documents such as credential, PAN No, Machineries,
Technical Person, Audit Report etc. have been verified
properly in order."
Sd/-
Chairman
Berhampore Municipality
xiii) Vide Memo No.168/KUSP/TENDER/18/BM dated
16.07.2018, the Chairman, Berhampore Municipality issued
the following order:-
ORDER
In terms of Govt. Order the following tender committee have been
constituted as stated under:-
1. Chairman, Berhampore Municipality- Chairman of Tender
Committee
2. Finance Officer, Berhampore Municipality - Member & Convenor
of Tender Committee
3. Executive Engineer (E), Electrical, Circle-1 KMDA- Member of
Tender Committee
Accordingly, the tender committee has scrutinised the
tender document which is as follows:-
1. Supply, installation, Testing and Commissioning of
Water ATM with allied works(Electro-Mechanical
part) in different wards within Berhampore
Municipality.
2. Supply, fitting and fixing of LED street light (90
Watt) in existing poles at different Roads and
Places within Berhampore Municipality.
3. Supply, fitting and fixing of LED street light
(120Watt) in existing poles at different Roads and
Places within Berhampore Municipality.
4. Supply, erection, fitting and fixing of 12.5 Mtr High
Mast (12 nos) with LED flood lights at different
places for beautification of works within
Berhampore Municipality Area.
5. Supply, erection, fitting and fixing of 12.5 Mtr High
Mast (12 nos) with LED flood lights at different
places for beautification of works within
Berhampore Municipality Area.
6. Supply, erection, fitting and fixing of decorative
5.12Mtr light poles(TRIDANT) with light fixture (LED
lamp) at different Road and places for beautification
work within Berhampore Municipality Area.
After examination it is found all the tender papers are "In
order in all respect. It is also ensured that all rules and
regulations of E-Tender have been observed to our
satisfaction as per all relevant Finance Notification of
Government of West Bengal from time to time. The bidders
documents such as credential, PAN No., Machineries,
Technical Person, Audit Report etc. Have been verified
properly in order."
Sd/-
Chairman
Berhampore Municipality
xiv) Enquiry Report dated 18.06.2020 submitted by the
Additional Chief Engineer, Housing Sector(RE), KMDA is as
follows:-
"With reference to above, I am to inform you that I have examined
the E-Tendering process of the following projects under Berhampore
Municipality i.e.
1. E-tendering process of Electro Mechanical scheme under green
City Mission including water ATM installation.
2. E-tendering process of Market Complex under Karmatirtha.
3. E-tendering process of execution of Storm Water Drainage
Projects under AMRUT.
4. E-tendering process of supply and laying of DI pipes for water
supply
and it is found out that the E-tendering process for all the
aforesaid Projects have been done maintaining the financial
and administrative rules and regulation laid out in E-
tendering process prescribed by Government of West Bengal
and all the processes followed in this regards in compliance
with the norms of E-tendering without any irregularities for
all the aforesaid projects."
Sd/-
Addl. Chief Engineer
Housing Sector (RE), KMDA.
33. In the present case, the charge sheet has been submitted on the
findings that the e-tendering process was in order and it was done following
every rules and regulation of finance notification of Government of West
Bengal. It has been specifically stated in FIR that all relevant papers of
bidders i.e. credential, machinery etc. were not verified by the FIR named
accused/petitioner herein. The charge sheet has been submitted as
allegedly the DSC was used by the petitioner, without authority.
34. About the non existence of Tender Committee, it has been seen
that there are official memos showing the existence of Tender
Committee of which the petitioner is not a member.
35. Finally, the investigating officer has held that the petitioner allegedly
used the digital signatures of Sri Nirmalendu Mondal, Assistant Engineer
and Dilip Kumar Banerjee, Head Clerk of Berhampore Municipality, without
authority.
36. The State has placed a document (Annexure 'F'), issued by the
Chairman and Executive Officer of Berhampore Municipality dated
03.12.2019, which directs the officials of the Municipality to hand over
their Digital Signature Certificate procured for e-tendering to the
petitioner and also authorising the petitioner to maintain all e-
tendering process. The said document bears the signature of officials
endorsing that as per the said order, they have handed over their DSC
to the petitioner.
37. The irregularity in the said document is that it bears an
endorsement by one Samiran Hossain dated 26.06.2017, noting that as
per instruction of Puskar Sarkar (petitioner) he has received 2(two)
number DSC from N. Mondal and D. Banerjee.
38. Surprisingly, this document on which the Prosecution has based
its entire case, does not bear the signature of the petitioner. The fact
that the total document contains an endorsement on behalf of the
petitioner, in such a serious and important process, prima facie goes to
show that the said document which bears no endorsement by the petitioner
was prepared to falsely implicate the petitioner in this case in a
malafide manner.
39. It is also difficult to believe that none of the officials who are the
authorised officers, responsible for the works under dispute, as per
statute, have been implicated in this case. The said officials have all
certified that there was no irregularities in any of the e-tendering
process.
40. Thus once again on an overall picture of the present case, for a
clear view:-
i) It appears that on a complaint by one Bimalendu Bose
(capacity not disclosed), only against the petitioner, the total case
has been initiated.
ii) Bimalendu Bose asked for an enquiry and also a vigilance
inquiry, both of which was recommended by the SDO and
accepted by the District Magistrate.
iii) Documents relating to the constitution of Tender
Committee are on record, and the petitioner a contractual
employee is not part of it.
iv) Certificates verifying that all the process relating to
the tender are according to government rules and there are no
irregularities.
v) The allegation that as the petitioner has prepared the
comparative chart relating to the tender process, he is liable for
the irregularities, if any, is clearly absurd, as the said work is
entirely clerical and no responsibility can be fixed upon such a
person.
vi) The document relating to the handing over of DSC has
also been prepared to prima facie implicate the petitioner as
the document does not contain his endorsement but shows
that it has been done on his behalf.
vii) Even the investigating officer has found that the total
tender process is in accordance with law, though the involvement
of the petitioner an Engineer on contractual basis, in the tender
process is clearly absent.
41. All these materials on record clearly shows that there has been clearly
an abuse of process of law and thus in the interest of justice, the present
case against the petitioner is liable to be quashed.
42. In Ramesh Chandra Gupta vs. State of Uttar Pradesh and Ors.,
2022 LiveLaw (SC) 993, Criminal Appeal No(s). ........... of 2022 (Arising
out of SLP (Crl.) No(s). 39 of 2022), the Supreme Court held:-
"15. This Court has an occasion to consider the ambit and
scope of the power of the High Court under Section 482 CrPC
for quashing of criminal proceedings in Vineet Kumar and
Others vs. State of Uttar Pradesh and Another, (2017) 13
SCC 369 decided on 31st March, 2017. It may be useful to
refer to paras 22, 23 and 41 of the above judgment where the
following was stated:
"22. Before we enter into the facts of the present case it is
necessary to consider the ambit and scope of jurisdiction
under Section 482 CrPC vested in the High Court. Section 482
CrPC saves the inherent power of the High Court to make such
orders as may be necessary to give effect to any order under
this Code, or to prevent abuse of the process of any court or
otherwise to secure the ends of justice.
23. This Court time and again has examined the scope of
jurisdiction of the High Court under Section 482 CrPC and laid
down several principles which govern the exercise of
jurisdiction of the High Court under Section 482 CrPC. A three-
Judge Bench of this Court in State of Karnataka v. L.
Muniswamy (1977) 2 SCC 699 held that the High Court is
entitled to quash a proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an abuse of the
process of the Court or that the ends of justice require that the
proceeding ought to be quashed. In para 7 of the judgment, the
following has been stated :
„7. ... In the exercise of this wholesome power, the High Court
is entitled to quash a proceeding if it comes to the conclusion
that allowing the proceeding to continue would be an abuse of
the process of the court or that the ends of justice require that
the proceeding ought to be quashed. The saving of the High
Court's inherent powers, both in civil and criminal matters, is
designed to achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to degenerate into a
weapon of harassment or persecution. In a criminal case, the
veiled object behind a lame prosecution, the very nature of the
material on which the structure of the prosecution rests and
the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice are
higher than the ends of mere law though justice has got to be
administered according to laws made by the legislature. The
compelling necessity for making these observations is that
without a proper realisation of the object and purpose of the
provision which seeks to save the inherent powers of the High
Court to do justice, between the State and its subjects, it
would be impossible to appreciate the width and contours of
that salient jurisdiction.‟
41. Inherent power given to the High Court under Section 482
CrPC is with the purpose and object of advancement of justice.
In case solemn process of Court is sought to be abused by a
person with some oblique motive, the Court has to thwart the
attempt at the very threshold. The Court cannot permit a
prosecution to go on if the case falls in one of the categories as
illustratively enumerated by this Court in State of Haryana v.
Bhajan Lal 1992 Supp (1) SCC 335. Judicial process is a
solemn proceeding which cannot be allowed to be converted
into an instrument of operation or harassment. When there are
materials to indicate that a criminal proceeding is manifestly
attended with mala fides and proceeding is maliciously
instituted with an ulterior motive, the High Court will not
hesitate in exercise of its jurisdiction under Section 482 CrPC
to quash the proceeding under Category 7 as enumerated in
State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 which
is to the following effect :
„102. (7) Where a criminal proceeding is manifestly attended
with mala fides and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.‟ Above Category 7 is clearly attracted in the
facts of the present case. Although, the High Court has noted
the judgment of State of Haryana v. Bhajan Lal 1992 Supp (1)
SCC 335 but did not advert to the relevant facts of the present
case, materials on which final report was submitted by the IO.
We, thus, are fully satisfied that the present is a fit case
where the High Court ought to have exercised its jurisdiction
under Section 482 CrPC and quashed the criminal
proceedings."
16. The exposition of law on the subject relating to the
exercise of the extra-ordinary power under Article 226 of the
Constitution or the inherent power under Section 482 CrPC are
well settled and to the possible extent, this Court has defined
sufficiently channelized guidelines, to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised. This Court has held in para 102 in State of
Haryana and Others v. Bhajan Lal and Others, 1992
Supp. (1) 335 as under :
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
17. The principles culled out by this Court have consistently
been followed in the recent judgment of this Court in
Neeharika Infrastructure Pvt. Ltd. v. State of
Maharashtra and Others, 2021 SCC Online SC 315."
43. The case of the petitioner clearly falls under Clause 5 and 7 of
paragraph 102 of Bhajan Lal (Supra).
44. As to who are the officials actually involved in such defalcation of
government fund is remains a mystery. The Principal Secretary, Urban
Development and Municipal Affairs is requested to personally enquire into
the matter and fix responsibility within six months from the date of this
order.
45. The revisional application being CRR 96 of 2020 is thus allowed.
46. The G.R. Case No.4031 of 2019 which arose out of Berhampore Police
Station Case No.1176 dated 14.09.2019 under Sections 420/406/408 of the
Indian Penal Code, pending before the Court of the learned Chief Judicial
Magistrate, Murshidabad, is quashed.
47. All connected applications, if any, stands disposed of.
48. Interim order, if any, stands vacated.
49. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
50. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
