Jharkhand High Court
Riyaz Khan Faridi vs The Union Of India Through Central ... on 5 May, 2022
Cr.Rev.No.321 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No.321 of 2019
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(Application for setting aside the order dated 18.12.2018 passed by Special
Judge, C.B.I., Ranchi in Misc. Criminal Application No.1224 of 2018)
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Riyaz Khan Faridi, Aged 56 Years, S/o Sh. Shamsuddin Khan, R/0 92,
Magistic Nagar, Khajrana Road, PO & PS- Indore, District Indore, Madhya
Pradesh .... .... .... Petitioner
Versus
The Union of India through Central Bureau of Investigation
.... .... .... Opposite Party
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For the Petitioner : Mr. Vikas Pandey, Advocate
Mr. Piyush Poddar, Advocate
Mr. Prakash Singh Tomar, Advocate
For the C.B.I. : Mr. Prashant Pallav, A.S.G.I.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: Heard the parties.
2. The criminal revision is directed against the order dated 18.12.2018
passed in Misc. Criminal Application No.1224 of 2018 arising out of R.C.
11 (A)/09-AHD-R (A) whereby and whereunder the learned Special
Judge, C.B.I, Ranchi has rejected the petition of this revision-petitioner
filed with the prayer for discharge of the petitioner from the case.
3. The allegation against the petitioner is that the petitioner in criminal
conspiracy with Mr. Bhanu Pratap Shahi- the then Health Minister,
Government of Jharkhand, Dr. Pradeep Kumar- the then Secretary, Health
Department, Government of Jharkhand, Dr. Vijay Shankar Narayan
Singh, State RCH Officer, Namkum, Ranchi, Mr Prodyut Mukherjee- a
member of the tender committee, as well as some private persons ensured
that the public servants by abusing their respective official positions,
Cr.Rev.No.321 of 2019
fraudulently and dishonestly purchased medicines, medical equipment;
appliances, sundry items etc. used in hospitals from 19 (nineteen)
suppliers worth Rs.130,50,79,951/- without assessing the actual
requirement and without observing the formalities necessary to be
followed for such purchase, at inflated rates causing a wrongful loss to the
tune of Rs.31,68,50,746/- to the Government of Jharkhand and
corresponding gain to the petitioner and co-accused persons. There is
specific allegation against the petitioner that as a part of conspiracy,
though the petitioner through his company was not able to participate in
the said tender as the company of the petitioner was not qualified to
participate in the said tender because the return of his company in the
name and style of M/s Microgen Private Limited was much less than the
minimum required return of Rs.15 crore, engaged the co-accused Nand
Kishore Fogla through the co-accused Rajesh Kumar Fogla being the
partner of the firm M/s Nand Kishore Fogla and ensured that the said
firm M/s Nand Kishore succeeds in the tender process with the illegal
acts of the co-accused person public servants; by ensuring that other firms
who submitted the tender are made ineligible because of stringent
conditions put by the co-accused public servants who facilitated the said
M/s Nand Kishore Fogla succeeding in the tender process for
procurement of the different items. There is also allegation against the
petitioner that the petitioner had a meeting in a hotel of Ranchi with the
co-accused Dr. Vijay Shankar Narayan Singh, Madan Mohan Prasad,
Rajesh Fogla and though the petitioner claims that he has not signed the
tender documents but during the investigation the tender documents
were found to be signed by the petitioner and thus, it is alleged in the
charge-sheet that the petitioner, in criminal conspiracy with the co-
accused persons, has cheated the Government of Jharkhand by adopting
the said modus operandi. There is further allegation against the petitioner
that the petitioner offered the rate of Rs.1,650/- per litre of the disinfectant
to the Government of Jharkhand but after taking over the charge of Health
Secretary, co-accused Dr. Pradeep Kumar, the petitioner conspired with
the co-accused Dr. Pradeep Kumar and other officials of Health
Cr.Rev.No.321 of 2019
Department of the State of Jharkhand and in pursuance of the said
criminal conspiracy an order to purchase only Microgen make
Disinfectant (D-125)( a product of the company of the petitioner), Fogger
Machines and Dispensers by all the hospitals and officers of the State of
Jharkhand was issued 28.06.2008 by the co-accused public servants. The
petitioner was instrumental in cancellation of earlier tender in which the
petitioner offered the rate of Rs.1,650/- per litre of the disinfectant to the
Government of Jharkhand and in re-tendering process, the petitioner
authorized M/s Nand Kishore Fogla to participate in the tender for
Microgen products. The said M/s Nand Kishore Fogla was involved in
the conspiracy with the co-accused public servant, by changing his earlier
authorized organization M/s Siddhi Vinayaka Agency of which Mr.
Krishna Kant Pandey was the proprietor, to participate in the tender for
Microgen products and the co-accused persons, in pursuance of the said
criminal conspiracy imposed strict financial criteria to eliminate other
prospective bidders to favour M/s Nand Kishore Fogla at a much higher
price than the said petrol price of ₹ 1650/-per litre, quoted by the
petitioner in the earlier tender. The petitioner with the co-accused Dr.
Vijay Shankar Narayan Singh, Madan Mohan Prasad, Rajesh Kumar Fogla
and Kunj Bihari Goyal had a joint meeting to give final shape of the
modus operandi of the deal. The said meeting was arranged in a room of a
hotel at Ranchi in the evening of 28.07.2008 and the petitioner was in
occupation of the room in the same hotel on the fateful day. The
investigation further revealed that the claim of the petitioner that he did
not participate in the tender was found to be false as it has come during
the investigation that the petitioner attended the tender and quoted L-3
rates on 16.08.2009. It was also found during the investigation that the
signature appearing on technical evaluation comparative chart is that of
the petitioner and several persons have seen the petitioner signing on the
technical evaluation comparative chart. Further, the active complicity of
the petitioner in the offence is apparent as the petitioner purchased Bank
Guarantee for Rs.5,00,000/- favouring RCH Officer, Department of Health
and Family Welfare, RCH Complex, Namkum, Ranchi, Jharkhand from
Cr.Rev.No.321 of 2019
the Bank of India, Santa Cruse (West) Branch, Mumbai for biding in
Tender Number 23/RCH (tender) 2008. The Government Examiner of
Questioned Document of Central Forensic Science Laboratory, New Delhi
has also confirmed the writing and signature of the petitioner on technical
evaluation comparative chart on the tender. It was further found during
the investigation that the petitioner also manipulated in the stock transfer
notes of company through which the materials were delivered. The
petitioner allegedly issued ante-dated stock transfer note for Fogger
Machines when the investigation of C.B.I. was in progress. The officials of
Health Department have deliberately destroyed the original technical and
price bids of the tender. There is further allegation that the petitioner in
criminal conspiracy with the co-accused Rajesh Kumar Fogla intentionally
quoted higher rates for disinfectant, fogger machine and dispenser in the
quotation submitted on behalf of M/s Microgen Hygiene Private Limited
just to accommodate Rajesh Kumar Fogla. The undisputed fact remains
that M/s Nand Kishore Fogla had purchased all the items from none else
than M/s Microgen Hygiene Private Limited, Mumbai at the rates
substantially less than the rate quoted by the petitioner on behalf of M/s
Microgen Hygiene Private Limited and the investigation further reveals
that just before submitting the quotations, the petitioner had a meeting
with Dr. Vijay Shankar Narayan Singh, Madan Mohan Prasad and Rajesh
Kumar Fogla in a hotel at Ranchi where it was decided to pave the way
for award of contract to M/s Nand Kishore Fogla. C.B.I. further collected
evidence to establish that the co-accused persons by awarding the tender
at exorbitant rates in favour of M/s Nand Kishore Fogla caused wrongful
loss to the tune of Rs.13,62,13,600/- and corresponding gain to themselves
and others.
4. The learned Special Judge, C.B.I, Ranchi after taking into
consideration the materials in the record rejected the prayer for
discharging the petitioner from this case.
5. It is submitted by the learned counsel for the petitioner that the
learned court below failed to consider that there is no material placed by
the Investigating Officer against the petitioner and the petitioner is
Cr.Rev.No.321 of 2019
innocent and ought to have discharged the petitioner. It is next submitted
that the learned court below failed to appreciate the fact that the petitioner
is not named in the F.I.R. and the allegations made in the charge-sheet do
not constitute any offence under Section 420, 467, 468, 471, 120B of the
Indian Penal Code as there is no averment regarding any of the
ingredients of the said offences in the charge-sheet.
6. Learned counsel for the petitioner relied upon the judgment of
Hon'ble Supreme Court of India in the case of Satishchandra Ratanlal
Shah Vs. State of Gujarat & Another reported in (2019) 9 SCC 148
paragraphs-9 and 10 of which read as under:-
"9. Before we analyse this case, it is to be noted that the criminal
application preferred by the accused before the High Court was against the order
of the trial court at the stage of framing of charges, wherein it is the duty of the
court to apply its judicial mind to the material placed before it and to come to a
clear conclusion that a prima facie case has been made out against the accused. An
order for framing of charges is of serious concern to the accused as it affects his
liberty substantially. Courts must therefore be cautious that their decision at this
stage causes no irreparable harm to the accused.
10. Coming to the aspect of quashing of the charges, it is well settled that
such exercise needs to be undertaken by the High Court in exceptional cases. It is
also well settled that the framing of charges being initial stages in the trial
process, the court therein cannot base the decision of quashing the charge on the
basis of the quality or quantity of evidence rather the enquiry must be limited to a
prima facie examination. (Refer to State of Bihar v. Ramesh Singh [State of
Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533 : 1977 Cri LJ
1606] .)" (Emphasis supplied)
7. Learned counsel for the petitioner next relied upon paragraphs-19
and 20 the judgment of Hon'ble Supreme Court of India in the case of
State by Karnataka Lokayukta, Police Station, Bengaluru Vs. M. R.
Hiremath reported in (2019) 7 SCC 515 which read as under:-
"19. That leads us to the next limb of a significant submission which has
been made on behalf of the respondent by Mr Basava Prabhu Patil, learned Senior
Counsel, which merits close consideration. It was urged on behalf of the
respondent that the exercise of the investigating officer handing over a spy camera
to the complainant on 15-11-2012 would indicate that the investigation had
commenced even before an FIR was lodged and registered on 16-11-2012. This, it
has been submitted, is a breach of the parameters which have been prescribed by
the judgment of the Constitution Bench of this Court in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] .
20. Before we advert to the decision of the Constitution Bench, it is
necessary to note that in the earlier decision of this Court in P.
Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC
595 : 1970 SCC (Cri) 240] , the importance of a preliminary inquiry before the
Cr.Rev.No.321 of 2019
lodging of a first information report in a matter involving alleged corruption by a
public servant was emphasised. This Court observed: (SCC pp. 601-602, para 17)
"17. ... Before a public servant, whatever be his status, is publicly
charged with acts, of dishonesty which amount to serious misdemeanour or
misconduct of the type alleged in this case and a first information is lodged
against him, there must be some suitable preliminary enquiry into the allegations
by a responsible officer. The lodging of such a report against a person, specially
one who like the appellant occupied the top position in a department, even if
baseless, would do incalculable harm not only to the officer in particular but to
the department he belonged to, in general. If the Government had set up a
Vigilance and Anti-Corruption Department as was done in the State of Madras
and the said department was entrusted with enquiries of this kind, no exception
can be taken to an enquiry by officers of this department but any such enquiry
must proceed in a fair and reasonable manner. The enquiring officer must not act
under any pre-conceived idea of guilt of the person whose conduct was being
enquired into or pursue the enquiry in such a manner as to lead to an inference
that he was bent upon securing the conviction of the said person by adopting
measures which are of doubtful validity or sanction. The means adopted no less
than the end to be achieved must be impeccable. In ordinary departmental
proceedings against a government servant charged with delinquency, the normal
practice before the issue of a charge-sheet is for someone in authority to take down
statements of persons involved in the matter and to examine documents which
have a bearing on the issue involved. It is only thereafter that a charge-sheet is
submitted and a full-scale enquiry is launched. When the enquiry is to be held for
the purpose of finding out whether criminal proceedings are to be resorted to the
scope thereof must be limited to the examination of persons who have knowledge
of the affairs of the delinquent officer and documents bearing on the same to find
out whether there is prima facie evidence of guilt of the officer. Thereafter the
ordinary law of the land must take its course and further inquiry be proceeded
with in terms of the Code of Criminal Procedure by lodging a first information
report."
8. It is then submitted that so far as twenty (20) witnesses have been
examined during the trial. Hence, it is submitted that the impugned order
dated 18.12.2018 passed by Special Judge, C.B.I., Ranchi in Misc. Criminal
Application No.1224 of 2018 being illegal, be set aside.
9. Mr. Prashant Pallav- learned A.S.G.I. appearing for the C.B.I. on the
other hand defended the impugned order by which the learned Special
Judge, C.B.I. rejected the petition of the petitioner to be discharged from
this case in view of the overwhelming materials in the record. It is next
submitted that earlier, a co-ordinate Bench of this Court vide its order
dated 05.04.2013 in Cr.M.P. No.2635 of 2012 quashed the order taking
cognizance In This Case by the Learned Special Judge, CBI, Ranchi but in
Criminal Appeal No.1281 of 2015 arising out of Special Leave Petition
Cr.Rev.No.321 of 2019
(Crl.) No.4259 of 2014 vide its judgment dated 29.09.2015, the Hon'ble
Supreme Court of India was pleased to observed as under in paragraphs-8
and 9:-
"8. On the aforesaid basis, it is our considered view that the present is a fit
case which should go for trial. Accordingly, we interfere with the order of the
High Court; set aside the same and direct the prosecution against all the accused
including the respondent accused to commence and conclude as expeditiously as
possible.
9. The appeal, consequently, is allowed in the above terms."
and allowed the appeal. It is next submitted that the ground basing upon
which the petitioner prays for being discharge from the case is that the
allegation against him are false which could be a possible defence of the
petitioner which he could take at the appropriate stage during the trial. It
is then submitted that during the course of investigation, the contention of
the petitioner that he did not sign the documents was found to be false. It
is next submitted that since the learned Special Judge, C.B.I., Ranchi had
discussed in details about the materials available in the record to frame
the charges which shows the application of judicial mind to the materials
placed before him and in view of the settled principle of law as mentioned
in paragraph-10 of the judgment of Satishchandra Ratanlal Shah (supra),
the learned Special Judge has rightly rejected the petition for discharge of
the petitioner.
10. Mr. Prashant Pallav next submits that the learned counsel for the
petitioner just for the purpose of playing to the gallery, is drawing the
attention of this Court to paragraphs-19 and 20 of the judgment of State
by Karnataka Lokayukta, Police Station, Bengaluru Vs. M. R. Hiremath
(supra) which is no way even remotely relevant to the issues involved in
the case and in fact the relevant paragraph of that judgment is paragraph-
25 which reads as under:-
25. "The High Court ought to have been cognizant of the fact that the trial
court was dealing with an application for discharge under the provisions of
Section 239 CrPC. The parameters which govern the exercise of this jurisdiction
have found expression in several decisions of this Court. It is a settled principle of
law that at the stage of considering an application for discharge the court must
proceed on the assumption that the material which has been brought on the record
by the prosecution is true and evaluate the material in order to determine whether
the facts emerging from the material, taken on its face value, disclose the existence
Cr.Rev.No.321 of 2019
of the ingredients necessary to constitute the offence. In State of T.N. v. N.
Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3
SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on
the subject, this Court held: (SCC pp. 721-22, para 29)
"29. ... At this stage, probative value of the materials has to be gone
into and the court is not expected to go deep into the matter and hold that the
materials would not warrant a conviction. In our opinion, what needs to be
considered is whether there is a ground for presuming that the offence has been
committed and not whether a ground for convicting the accused has been made
out. To put it differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on record on its probative
value, it can frame the charge; though for conviction, the court has to come to the
conclusion that the accused has committed the offence. The law does not permit a
mini trial at this stage." (Emphasis supplied)
11. It is then submitted by Mr. Prashant Pallav that either of the
judgments placed by the learned counsel for the petitioner is not of any
help to the petitioner and the learned Special Judge, C.B.I., Ranchi, having
rightly rejected the prayer for discharging the petitioner from this case
and his order having not been suffering from any illegality or perversity
in any manner, this revision petition, being without any merit be
dismissed.
12. Having heard the rival submissions made at the bar and after
carefully going through the materials in the record, it is pertinent to
mention here that it is a settled principle of law that the defence of the
accused is not to be considered at the time of framing of the charge as has
been held by the Hon'ble Supreme Court of India in the case of M.E.
Shivalingamurthy Vs. C.B.I, Bengaluru reported in (2020) 2 SCC 768
paragraph-29 of which reads as under:-
29. "It is not open to the accused to rely on the material by way of defence
and persuade the court to discharge him."
13. This Court after going through the materials in the record finds
that there is specific allegation against the petitioner of being in criminal
conspiracy with the co-accused public servants and having committed the
offence of cheating, forgery for the purpose of cheating and using forged
documents as genuine as well as the offence punishable under Section 13
(1) (c), 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption
Act, 1988 having in conspiracy with the co-accused public servants,
Cr.Rev.No.321 of 2019
caused wrongful loss to the State of Jharkhand to the tune of several
crores of rupees. Hence, this Court does not find any illegality or
perversity in the impugned order dated 18.12.2018 passed in Misc.
Criminal Application No.1224 of 2018 arising out of R.C. 11 (A)/09-AHD-
R (A) passed by learned Special Judge, C.B.I., Ranchi in rejecting the
prayer of the petitioner for discharging him from this case; when the trial
has already commenced and 20 witnesses have already been examined in
this case during the trial, more so in view of the categorical observation by
the Hon'ble Supreme Court of India in Criminal Appeal No.1281 of 2015
arising out of Special Leave Petition (Crl.) No.4259 of 2014 vide Order
dated 29.09.2015 to the effect that the present case is a fit case which
should go for trial.
14. Hence, this Court is of the considered view that this is a fit case
which should go for trial and the learned Special Judge, CBI, Ranchi has
rightly done so by rejecting the prayer for the petitioner be discharged
from the case. Thus there is no illegality or perversity in the impugned
order passed by the learned Special Judge, CBI, Ranchi. Accordingly, this
Criminal Revision, being without any merit, is dismissed.
15. The learned Special Judge, CBI, Ranchi is directed to conclude the
trial as expeditiously as possible as directed by the Hon'ble Supreme
Court of India in Criminal Appeal No.1281 of 2015 arising out of Special
Leave Petition (Crl.) No.4259 of 2014 vide Order dated 29.09.2015.
16. Let a copy of this order be sent to the Learned Special Judge, CBI,
Ranchi forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 05th of May, 2022
AFR/Animesh
