Gauhati High Court
Crl.Pet./316/2023 on 7 August, 2024
GAHC010068122023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.PET 316 OF 2023
Mr. Alok Kumar
S/O- Sh. Yogeshwar Prasad,
R/O- C4E, Shubham Buildwell,
R.G. Baruah Road, Near Neepco
Bhawan, Guwahati-781006,
Dist. Kamrup(M), Assam
and presently working as G.M.
Environment at NHAI Headquarter,
Dwarka, New Delhi-75.
.....Petitioner
-Versus-
Central Bureau of Investigation
O/o- Head of the Branch,
Anti-Corruption Branch (Opposite Balaji
Temple) Betkuchi, NH-37, Garchuk-781035.
......Respondent
For Petitioner : Mr. S. Mann, Advocate
For Respondent : Mr. M. Haloi, Special Public Prosecutor,
Central Bureau of Investigation (CBI)
Date of Judgment : 07.08.2024
Crl.Pet.316 of 2023 Page 1
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
1. Heard Mr. S. Mann, learned counsel for the petitioner. Also
heard Mr. M. Haloi, Special Public Prosecutor, Central Bureau
of Investigation (CBI).
2. This application under Section 482 of the Code of Criminal
Procedure, 1973 has been filed by the petitioner, namely,
Mr. Alok Kumar, praying for quashing of the charge sheet
which has been filed in connection with FIR No.
RC2162022A0007 and all consequential proceedings
therefrom, presently pending before the Court of learned
Special Judge, CBI, Assam, Additional Court No. 2,
Chandmari at Guwahati.
3. The facts relevant for consideration of instant Criminal
Petition, in brief, are as follows:
i. That, on 12.06.2022, an FIR, bearing No.
RC2162022A0007 was registered on the basis of a
reliable source information under Section 120B of the
Indian Penal Code, read with Sections 7, 8, 9, 10 and
12 of the Prevention of Corruption Act, 1988, at the
Central Bureau of Investigation, AC-1, New Delhi,
against six numbers of named accused persons,
namely,(1) Shri Dipak Das, (2) Shri Manoj Kumar, (3)
Shri Sushil Agarwal, (4) Shri Pankaj Singh, (5) Shri
Crl.Pet.316 of 2023 Page 2
Dilip Rajput, (6) M/s G.R. Infra Projects Limited, and
(7) Some unknown public servants and private
persons.
ii. It has been alleged in the FIR that some of the officials
of National Highway Authority of India (NHAI) posted
in the North-eastern states are indulging in corrupt
and illegal activities in the matter of awarding contract,
processing and clearance of bill in lieu of huge bribe in
connivance with private contractors.
iii. After receipt of the aforesaid FIR, a team of CBI
officials led by Mr. A.K. Maurya, Inspector CBI, AC-1,
New Delhi, was constituted. The said team, along with
the independent witnesses and the source, reached
Khanapara near Health City Hospital, Guwahati at
about 7.20 pm.
iv. After a few minutes, in line with the tip received from
the source to the effect that Shri Manoj Kumar will
come to collect the bribe amount in his car bearing
Registration No. JH10AM733, a vehicle came there and
after some time a white colour Bolero car bearing
Registration No. MN07E0113 also stopped there and
one person came down from the said Bolero car, who
was identified as Shri Pankaj Charan of M/s GR Infra
Project Limited by the source. The said person came
near Shri Manoj Kumar and handed over a yellow
Crl.Pet.316 of 2023 Page 3
envelope to him. At that time the CBI officials
intercepted and apprehended them.
v. During interrogation, the accused Manoj Kumar
confessed of obtaining Rs. 4 lakhs from the accused
Pankaj Charan. He also disclosed that out of the Rs. 4
lakhs received he will get only Rs. 50,000/- and
remaining amount i.e. Rs. 3,50,000/- was obtained for
one Shri Deepak Das.
vi. During investigation, it was revealed that on
10.09.2015 a tender was awarded to M/s GR Infra
Project Limited by National Highway Authorities of
India (NHAI) for the project "rehabilitation and
upgradation of existing roads to two lanes with paved
shoulders configuration in Jowai-Meghalaya-Assam
Border sections from NH-44 from km 69.200 to km
173.200 in the state of Meghalaya", on Engineering
Procurement and Construction (EPC) mode under
NHDP Phase-3 for the contract price of
Rs.468,27,00,000/- (Rs. 468.27 crores).
vii. As per stipulated terms and conditions of the aforesaid
work, M/s GR Infra Project Limited submitted two bank
guarantees worth Rs. 11,46,81,000/- and Rs.
2,58,00,000/- with NHAI as performance security.
viii. The petitioner Shri Alok Kumar, who was posted and
was working as Regional Officer, National Highway
Authority of India, Regional Office Guwahati was
Crl.Pet.316 of 2023 Page 4
arrested in connection with this case on 14.06.2022 on
the allegations that he abused his official position as
public servant and entered into criminal conspiracy
with other accused persons for ensuring favourable
reports from the Authority's Engineer of EGIS India
Consulting Engineers Private Limited and timely
release of bank guarantees by suppressing the
questionable report of the consultant.
ix. It was also alleged that the above-named petitioner
assured the accused persons namely, Sushil Kumar
Agarwal and Pankaj Singh for timely and smoothly
release of bank guarantees of M/s GR Infra Project
Limited and obtained undue advantage by securing a
job for his distant relative in the Company namely,
M/s GR Infra Project Limited.
x. On completion of the investigation, charge sheet No.3
dated 10.8.2022 was laid against 11 numbers of
accused persons. The petitioner Sri Alok Kumar has
been shown as accused number seven (A-7) in the
chargesheet. He has been charge-sheeted under
Section 120B of the Indian Penal Code, read with
Sections 7, 8, 9, 10 and 12 of the Prevention of
Corruption Act, 1988.
4. Learned counsel for the petitioner has submitted that the
petitioner Alok Kumar, who was working as GM (T/RO),
NHAI, Guwahati was arrested by the CBI on 14.06.2022.
Crl.Pet.316 of 2023 Page 5
However, no allegation was made against him in the FIR
which resulted in the trap proceeding/recovery memo dated
12.06.2022, wherein one Mr. Manoj Kumar and Dipak Das of
NHAI were arrested by the CBI for allegedly accepting bribe
from one Pankaj Charan of M/s GR Infra Project Ltd.
5. Learned counsel for the petitioner has submitted that there
is no materials against the petitioner regarding demand of
any money or his role in transaction of any money in
connection with the aforesaid trap proceeding.
6. Learned counsel for the petitioner has submitted that with
regard to the awarding of contract to M/s GR Infra Project
Ltd., a contract was executed on 29.09.2015 between
National Highway Authority of India as well as the said
contractor. As per Clause 7.4 of the said contract under
heading "Release of Performance Security" of the aforesaid
contract, the authority is obliged to return the performance
security to the contractor within 60 days of the expiry of
maintenance period or the defect liability period.
7. It is submitted by learned counsel for the petitioner that the
maintenance period and the defect liability period for the
project had expired on 31.03.2022 and accordingly, in terms
of the Clause 7.4 of the agreement, the authority was
obliged to return the performance security to the contractor
within 60 days from 01.04.2022 and the release of
performance bank guarantee by the petitioner was in
consonance with the terms of contract between the NHAI
Crl.Pet.316 of 2023 Page 6
and the contractor and it was in discharge of official duties
assigned to the petitioner.
8. It is submitted by learned counsel for the petitioner that the
petitioner being the Regional Officer, of NHAI was duty
bound to ensure requisite compliance on the part of the
NHAI in terms of contract executed between the NHAI and
the contractor. It is also submitted that the non-compliance
of the commercial agreement would have resulted in huge
number of avoidable and expensive litigation.
9. Learned counsel for the petitioner has also submitted that
the allegation in the charge sheet against the petitioner that
he assured the contractor about timely release of
performance guarantee on the condition that some distant
relative of him would get job with the said company is
baseless as there is nothing on record which shows that the
relative of the petitioner got job in the contractor's company
as a quid pro quo of the timely release of the performance
guarantee by the petitioner.
10. It is submitted that the alleged person is neither blood
relative nor has any direct family relationship and the
petitioner has no role to play regarding his employment in
the contractor's company.
11. Learned counsel for the petitioner has also submitted that, in
the instant case, the Central Bureau of Investigation, had
clearly violated the provisions of Section 17 A of the
Prevention of Corruption Act, 1988 in respect of the present
Crl.Pet.316 of 2023 Page 7
petitioner as under Section 17A of the Prevention of
Corruption Act, 1988, no police officer shall conduct any
inquiry or investigation into any offence alleged to have
been committed by the public servant under the said Act,
where the alleged offence is relatable to any
recommendations made or decision taken by the public
servant in discharge of the official functions or duties
without the previous approval of the authorities mentioned
in Clause (a), (b) or (c) of the said provision.
12. It is submitted by learned counsel for the petitioner that, in
the instant case, as the release of bank guarantee in
question by the petitioner was in performance of his official
duties, prior approval under Section 17A of the Prevention of
Corruption Act, 1988, ought to have been taken for initiating
any inquiry/investigation against the present petitioner and
by not doing so, the entire proceeding qua the present
petitioner would be vitiated.
13. Learned counsel for the petitioner has submitted that there
is no material on record, which shows that the petitioner
ever demanded any money for releasing the performance
guarantee to the contractor or that he asked anyone to give
employment to his distant relative in lieu of the release of
the performance guarantee.
14. Learned counsel for the petitioner submits that even if it is
assumed that there was a delay in release of the second
instalment of performance guarantee to the contractor, mere
Crl.Pet.316 of 2023 Page 8
instance of malfeasance or wrong administration or wrong
discharge of functions or dereliction of duty will not cause a
prosecution under Prevention of Corruption Act, 1988, unless
there is some element of corruption involved in doing so.
15. Learned counsel for the petitioner has submitted that as
prior approval of the authorities mentioned in Section 17A of
the Prevention of Corruption Act, 1988 was necessary for
initiating investigation against the above named petitioner
and for arresting him in this case, the initiation of
investigation against him and the filing of charge sheet
against him without there being any prior approval from the
competent authority under Section 17A, the charge sheet
laid against the present petitioner is illegal and amounts to
gross abuse of law and therefore, same is liable to be
quashed.
16. Learned counsel for the petitioner has submitted that the
uncontroverted allegations made in the FIR and the
evidence collected in support of the same do not disclose the
commission of any offence by the above named petitioner
and make out a case against him in this case and therefore,
this is a fit case where the inherent powers of the Court
under Section 482 of the Code of Criminal Procedure, 1973
should be exercised and the charge sheet and the
proceeding pending against the above named petitioner
without there being any materials on record against him,
should be quashed.
Crl.Pet.316 of 2023 Page 9
17. In support of the submissions made by learned counsel for
the petitioner has cited following rulings:
i. Ramesh Chennithala Vs. State of Kerala reported in
2018 SCC Online KER 14261;
ii. Taba Tedir Vs. Central Bureau of Investigation
reported in 2019 SCC online GAU 3451;
iii. Bhayabhai Gigabhai Sutreja Vs. State of Gujarat
reported in 2020 SCC online GUJ 2266;
iv. Kailash Chandra Agarwal and Another Vs. state of
Rajasthan reported in 2020 SCC online RAJ 2869;
v. Himanshu Yadav Vs. State of Rajasthan and Others
reported in 2022 SCC online RAJ 1303;
vi. State of Haryana and Others Vs. Bhajanlal and Others
reported in 1992 Supp (1) SCC 335.
18. On the other hand, Mr. M. Haloi, learned Special Public
Prosecutor, CBI has vehemently opposed the prayer of the
petitioner for quashing the proceeding of the Special CBI
Case No. 05/2022 qua the above-named petitioner which
was initiated on the basis of FIR No. RC2162022A0007.
19. Mr. M. Haloi, learned Special Public Prosecutor, CBI has
produced the case diary of concerned case before this Court
and has submitted that this case is related to demand and
acceptance of illegal gratification by the accused public
servants from private accused persons of M/s GR Infra
Project Ltd. for payment of release of performance bank
guarantee and also passing their bill expeditiously. He has
Crl.Pet.316 of 2023 Page 10
also submitted that the demand and acceptance of illegal
gratification by the accused public servants is not connected
with the discharge of official duty, therefore, the provisions
of Section 17A of the Prevention of Corruption Act, 1988 is
not applicable in the instant case.
20. It is submitted by learned Special Public Prosecutor that the
above named petitioner is a conspirator working in the
nexus with other public servants and private persons. Hence,
he does not come within the purview of Section 17A of the
Prevention of Corruption Act, 1988.
21. He has also submitted that though, the petitioner has not
been named in the FIR, however, an FIR may not be an
encyclopedia of all the events in a criminal case and not
naming the petitioner in it would not absolve him from the
criminal liability if otherwise materials are available against
him. He has also submitted that sufficient materials were
collected during investigation against the above-named
petitioner, which implicates him in the case which was
registered on the basis of the FIR.
22. He has also submitted that as the charge sheet has been
laid after completion of the investigation, question of
quashing the FIR on the ground that FIR does not discloses
involvement of the petitioner in the alleged offence does not
arise as after filing of the FIR, in the investigation which was
initiated in person, sufficient material were collected against
the above named petitioner. He has submitted that
Crl.Pet.316 of 2023 Page 11
accepting bribe or making an attempt to obtain bribe cannot
be considered as an part of the official duties of the
petitioner.
23. Learned Special Public Prosecutor has also submitted that
the statement of one Rajesh Kumar Sharma, who is the
proprietor of M/s MR Construction, shows that the petitioner
asked him to pay at least Rs. 50,000/- as reward for
arrangement of DM-50 plant, DG-125 KVA along with
container on reasonable rates from M/s GR Infra Project Ltd.
24. It is also submitted by learned Special Public Prosecutor that
the telephonic conversation recording of the petitioner with
Ashok Kumar Singh, who is the Authority Engineer of M/s
EGIS India Consulting Engineers Private Limited shows that
the petitioner asked him not to write "but not
recommended" type of words to NHAI which may create
problem in future.
25. It is submitted by learned Special Public Prosecutor that the
above-named petitioner extended undue favour towards M/s
GR Infra Project Ltd. by releasing the bank guarantee to
them.
26. It is also submitted by learned Special Public Prosecutor that
the intercepted telephonic conversation between the
petitioner and the officials of M/s GR Infra Project Ltd.
shows that the release of bank guarantee and other bills
were in lieu of the petitioner securing a job for his cousin
Kumar Ankit in M/s GR Infra Project Ltd.
Crl.Pet.316 of 2023 Page 12
27. Learned special public prosecutor has submitted that taking
of illegal gratification for releasing of bank guarantee cannot
be considered as an act which is directly connected with
making any decision or recommendation by the petitioner in
discharge of his official duty, so as to bring him within the
purview of Section 17A of the Prevention of Corruption Act,
1988. Hence, he has prayed that the Criminal Petition filed
by the petitioner may be dismissed.
28. Learned special public prosecutor has also submitted that
the case of the petitioner does not fall within any of the
seven conditions enumerated by the Apex Court in the case
of the "State of Haryana and Others Vs. Bhajan lal (Supra)"
so as to invoke the powers of Section 482 of the Code of
Criminal Procedure 1973 in this case.
29. In support of the submissions made by him, learned special
public prosecutor, CBI has cited following rulings:
i. Nizam Begum and Another Vs. State and another,
[Judgment dated 21.02.2011, passed in WP (CRL)
No.1137/2007 by the Delhi High Court.];
ii. Kailas Sopan Jade Vs. State of Maharashtra, reported
in AIR Online, 2023, BOM 140;
iii. Baltej Singh Vs. State of Rajasthan, [Judgment dated
23.01.2017 passed in S.B. Criminal Misc. (Pet.) No.
3916/2006 by the Rajasthan High Court.];
iv. Swatantar Singh Vs. State of Haryana, reported in
(1997) 4 SCC 14;
Crl.Pet.316 of 2023 Page 13
v. Devinder Singh and Others Vs. State of Punjab through
CBI, reported in (2016) 12 SCC 87;
vi. State of Haryana and Others Vs. Bhajanlal and Others,
reported in (1982) SUPP, (1) SCC 335;
vii. Kaptan and Singh Vs. State of Uttar Pradesh and
others, reported in (2021) 9 SCC 35;
viii. Shankara Bhat Vs. State of Kerala, (Judgment dated
27.08.2021) passed in CRL. MC No. 7542/2018 by the
Kerala High Court.
30. I have considered the rival submissions made by learned
counsel for both the sides and have gone through the
materials available on record, including the case diary of
RC2162022A007. I have also gone through the rulings cited
by learned counsel for both the sides.
31. On perusal of the FIR dated 12.06.2022, on the basis of
which RC2162022A0007 was registered, it appears that
though, six numbers of accused persons were named in the
FIR, however, the petitioner Alok Kumar has not been
named in the FIR, and though, some general allegations
were levelled against the officials of National Highway
Authority of India (NHAI) posted in North-Eastern states, of
having been indulging in corrupt and illegal activities, no
specific allegation was made in the said FIR against the
petitioner Alok Kumar.
Crl.Pet.316 of 2023 Page 14
32. It also appears from record that the petitioner Alok Kumar
was arrested in connection with the case on 14.06.2022, and
later on, he was allowed to go on bail.
33. It also appears that after completion of the investigation,
charge sheet was laid amongst other, against the petitioner
Alok Kumar, with an allegation that investigation disclosed
that the above-named petitioner abused his official position
as public servant and entered into criminal conspiracy for
ensuring favourable reports from Authority Engineer of EGIS
India Consulting Engineers Pvt. Ltd. for timely release of
bank guarantee by suppressing the questionable report of
the consultant.
34. It was also alleged that the petitioner assured the other
accused persons, namely, Sunil Kumar Agarwala and Pankaj
Singh, for timely and smoothly release of bank guarantee of
M/s GR Infra Project Limited and obtain undue advantage by
securing a job for his distant relative in the M/s GR Infra
Project Limited.
35. It is not in dispute that the petitioner Alok Kumar, who is the
Regional Officer, NHAI, RO Guwahati, is a public servant.
However, no prior approval as mandated under Section 17A
of the Prevention of Corruption Act, 1988 was obtained,
prior to initiating investigating against the present petitioner,
in this case.
36. Further, as per Clause 7.4 of the agreement between the
NHAI and M/s GR Infra Project Limited, the authority shall
Crl.Pet.316 of 2023 Page 15
have to return the performance security to the contractor
within 60 days of the later of expiry of the maintenance
period or the defect liability period under the agreement.
Thus, the petitioner, being the Regional Officer of the NHAI,
was under an obligation to release the bank guarantee as
per the recommendation of the Authority Engineer to the
contractor.
37. Though, the allegation of securing undue advantage by the
petitioner has been made in the charge sheet, however,
from the materials available in the case diary, there is
nothing to suggest that the petitioner demanded any undue
favour in lieu of release of bank guarantee.
38. It also appears that, though, the recorded telephonic
conversation between the petitioner and the officials of M/s
GR Infra Project Limited does show that they had
conversation in respect of the recommendation made by the
Authority Engineer. However, there is nothing, which
suggests that the petitioner demanded anything in lieu of
timely release of bank guarantee to M/s GR Infra Project
Limited. Apart from mere allegation, the available materials
on record does not suggest that the petitioner secured any
undue advantage in lieu of doing his official duty of releasing
bank guarantee to the M/s GR Infra Project Limited.
39. It appears that the release of performance bank guarantee
was by the NHAI was in consonance with the terms of
contract between NHAI and the contractor and the petitioner
Crl.Pet.316 of 2023 Page 16
only discharged his official duty assigned to him as Regional
Officer of the NHAI.
40. As regards the allegation against the petitioner that he
secured a job for Kumar Ankit, who is alleged to be his
cousin brother, in M/s GR Infra Project Limited on
instructions of Alok Kumar. However, on perusal of the
materials available on record, it appears that there is no
evidence on record, apart from the recorded telephonic
conversation between the petitioner and the officials of M/s
GR Infra Project Limited, wherein the petitioner only made
an inquiry regarding appointment of the said person.
However, there is nothing in the conversation to suggest
that anything was assured in lieu of such an appointment or
that any demand was made to the officials of M/s GR Infra
Project Limited to appoint Mr. Kumar Ankit.
41. It also appears that during the telephonic conversation
between the petitioner and Pankaj Charan, there was only
an inquiry regarding the work done in respect of the change
of scope (COS) of the allotted work to the tune of Rs. 4
lakhs, which does not suggest that anything was paid to the
petitioner or any undue favour was demanded by him.
42. Further, from the statement of Rajesh Kumar Sharma, the
proprietor of M/s MR Construction, which the prosecution
side is relying, it appears that he has categorically stated
that he had not paid a single penny to Alok Kumar and he
had only alleged that the petitioner was demanding a reward
Crl.Pet.316 of 2023 Page 17
of Rs. 50,000/- from him. However, he never committed to
give any bribe to the petitioner for purchase of DM-50 Plant,
DG-125 KVA container along with other items from M/s GR
Infrastructure Project Ltd.
43. Thus, in the instant case, though, allegations are made
against him of having obtained undue favour of release of
bank guarantee to the M/s GR Infra Project Limited, the
materials collected during investigation do not disclose
commission of any offence by the petitioner
44. Though, taking of bribe or taking undue favour, by a public
servant, cannot be regarded as anything connected with the
work in discharge of official duties, however, in the instant
case there is no evidence which suggests that the petitioner
took any bribe or any undue favour in lieu of releasing of
bank guarantee, which the NHAI was bound to release
under the terms of contract between it and the contractor's
company.
45. Further, the provision of Section 17A of the Prevention of
Corruption Act, 1988, prohibits conducting of inquiry or
investigation into any offence under the act unless to have
been committed by a public servant where the act is
relatable to any recommendation made on decision taken by
such public servant in discharge of his official function.
46. In the instant case, manifestly, the release of bank
guarantee to the contractor's company by the petitioner was
done in discharge of his official duty. Therefore, before
Crl.Pet.316 of 2023 Page 18
initiating any inquiry or investigation against him under the
provision of Prevention of Corruption Act, 1988, prior
approval of the authorities mentioned in Clause (a), (b) or
(c) of Section 17 of the Prevention of Corruption Act, 1988,
was a sine qua non and the investigation against the present
petitioner could not have been taken up without such
approval from the concerned authorities.
47. Hence, this Court is of considered opinion that without
complying with the provisions of Section 17A of the
Prevention of Corruption Act, 1988, the initiation of
investigation and laying of charge sheet against the
petitioner Alok Kumar was illegal and in violation of the
statutory provisions and it amounts to an abuse of the
process of law.
48. In the case of "State of Haryana and Others Vs. Bhajan lal
and Others" (Supra) the Supreme Court of India has laid
down that where an express legal bar engrafted in any of
the provision of the code or the concerned act to the
institution and continuation of proceeding and/or where
there is a specific provision in the code or concerned act
providing efficacious redressal for grievance of the interest
of the party, the inherent powers of the Court under Section
482 of the Code of Criminal Procedure, 1973 may be
exercised to prevent the abuse of the process of Court or
otherwise to secure ends of justice. In the instant case also,
in view of the statutory bar of Section 17A of the Prevention
Crl.Pet.316 of 2023 Page 19
of Corruption Act, 1988, the continuation of proceedings
against the above-named petitioner would be an abuse of
the process of court.
49. In light of discussions made herein above, this Criminal
Petition deserves to be allowed, and accordingly, the charge
sheet laid before the Court of Special Judge, CBI, Assam
Additional Court No. 2, Chandmari in connection with a FIR
No. RC2162022A0007, qua the petitioner Alok Kumar, is
hereby quashed and set aside.
50. This Criminal Petition is accordingly disposed of.
JUDGE
Comparing Assistant
Crl.Pet.316 of 2023 Page 20
