Shyam Kishore Singh vs The State Of Jharkhand
2023 Latest Caselaw 3187 Jhar

                                           1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr.M.P. No. 2710 of 2012

 Shyam Kishore Singh                               .......... Petitioner
                              Versus

1.The State of Jharkhand
2.The Block Development Officer, Kathikund, Dumka    ...... Opp. Parties
                            ---------

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                           ---------
For the Petitioner : Mr. Manoj Tandon, Advocate
                      Ms. Neha Bhardwaj, Advocate
                      Mr. Adamya Kerketta, Advocate
                      Mr. Piyush Kumar Roy, Advocate
For the State       : Mrs. Nehala Sharmin, A.P.P.

16/Dated: 28/08/2023

Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mrs. Nehala

Sharmin, learned counsel for the State.

2. This petition has been filed for quashing the entire criminal proceeding

including order taking cognizance dated 02.12.2011 in connection with Kathikund P.S. Case

No. 36 of 2011, corresponding to G.R. No. 1124 of 2011, pending in the Court of learned

Additional Chief Judicial Magistrate, Dumka. Subsequently, the petitioner filed discharge

petition before the learned court which was rejected by order dated 15.06.2017 and the

same was challenged by way of I.A. No. 7619 of 2017 and by order dated 10.01.2018 the

said I.A. was allowed. Thus, order dated 15.06.2017 by which discharge petition has been

rejected, is also under challenge.

3. The F.I.R. has been lodged alleging therein that the petitioner was posted as

Block Co- operative Extension Officer in Kathikund Block; that 300 bags of Ifco Urea was

mentioned in the stock register on 27.8.2011 and there was no signature thereon by any one;

that these 300 bags of Ifco Urea were lifted from Jasidih Godown and were brought at the

godown of Kathikund by Balajee Roadways from Truck No. JH-12B-3683.

It was further alleged that 45 bags of Ifco Urea were sold to 15 farmers on

27.8.2011 and 43 bags were sold to 13 farmers on 28.8.2011 and the rest bags of Ifco Urea

were found in the godown at Kathikund; that ten bags of Ifco Urea were seized from the

house of Ram Gopal Pal; that the petitioner, who was posted as Block Co-operative Extension

Officer, on being asked, could not give satisfactory answer and, therefore, it was a suspected

case of black marketing of which this petitioner, seller Mahadev Rai and said Ram Gopal Pal,

from whose house ten bags of Ifco Urea were recovered, were the conspirators; and that,

therefore, the informant Block Development Officer, Kathikund lodged the first information

report.

4. Mr. Manoj Tandon, learned counsel for the petitioner submits that the petitioner

is government servant and was posted as Block Co-operative Extension Officer, Kathikund

Block, who happened to be the Ex-officio Member Secretary of Large Area Multipurpose Co-

operative Societies. He further submits that the petitioner was on causal leave from

25.08.2011 to 28.08.2011 for which leave was taken in advance by the petitioner by way of

his application dated 25.08.2011 addressed to the competent authority. He further submits

that in the First Information Report itself it has been disclosed that stock register of

28.08.2011 was examined and there was no signature. He further submits that in the stock

registere the signature of the petitioner was not there as he was on leave. He submits that

the allegation is with regard to 300 bags of IFCO Urea which were sold to other farmers. He

submits that on 03.09.2011 itself the amount in question has been deposited for which

receipt is there vide annexure-3. He further submits that the petitioner came back on duty on

29.08.2011 and on that date the petitioner was attending the meeting at Dumka under the

Chairmanship District Co-operative Officer. He submits that during the period of allegation he

was on leave and after his joining he was at Dumka in the said meeting. He further submits

that the F.I.R. has been lodged under section 409/414/34 of the I.P.C and 7 of Bihar Fertilizer

Control Act, 1985. He submits that sections of Indian Penal Code is not attracted. He further

submits that other provision under which the F.I.R. lodged under section 7 of Bihar Fertilizer

Control Act, 1985, there is no such Act anywhere in the statute as Bihar Fertilizer Control Act,

1985. He submits that in view of that the entire case is based on wrong imagination. He

further submits that there is Fertilizer (Control) Order, 1985 issued under Section 3 of

Essential Commodities Act, 1955 by the Central Government. Clause 7 deals with registration

of dealers. He submits that in view of Clause 7 of Fertilizer (Control) Order, 1985 no case is

made out as that Clause is with regard to dealers to be registered. He further submits that

not only this the petitioner has also been departmentally charged and the District Co-

operative Officer was directed by the Registrar Co-operative Societies, Dumka to frame

memo of charge in 'Prapatra Ka'. Thereafter the Block Development Officer was directed to

submit memo of charge by letter dated 23.01.2013. By letter dated 31.01.2023, the Block

Development Officer replied to Assistant Registrar, Cooperative Societies, Dumka Circle,

Dumka. He further submits that vide letter dated 07.02.2013, the Assistant Registrar,

Cooperative Societies, Dumka came to the conclusion that no charge is made out against the

petitioner and the name of the petitioner has been wrongly inserted vide annexure 8 to the

supplementary affidavit. He submits that the District Cooperative Officer, Dumka by letter

dated 14.02.2013 vide annexure-9 came to the conclusion that no charge was made out

against the petitioner. The petitioner was directed to place his case vide letter dated

07.05.2013 and the petitioner submitted his reply on 16.05.2013 and pursuant to that looking

into all these aspects of the matter the enquiry officer came to the conclusion that no case

was made out against the petitioner in as much as the articles seized for alleged black

marketing was not belonging to Kathikund LAMPS of which the petitioner was not the

incharge and the petitioner was exonerated. He further submits that for the same set of

charge witnesses are same in the departmental proceeding as well as in criminal proceeding

and if the case is not made out in the departmental proceeding to allow the proceeding to

continue will amount the abuse of process of law. To buttress this argument, he relied in the

case of "P.S. Rajya Vs. State of Bihar" (1996) 9 SCC 1. He refers to para 17 of the said

judgment which is quoted hereinbelow:-

"17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings. In this context, we can usefully extract certain relevant portions from the report of the Central Vigilance Commission on this aspect.

"Neither the prosecution nor the defence has produced the author of various reports to confirm the valuation. The documents cited in the list of documents is a report signed by two engineers namely S/Shri S.N. Jha and D.N. Mukherjee whereas the document brought on record (Ex. S-20) has been signed by three engineers. There is also difference in the estimated value of the property in the statement of imputation and the report. The document at Ex. S-20 has been signed by three engineers and the property has been valued at Rs 4,85,000 for the ground floor and Rs 2,55,600 for the second floor. A total of this comes to Rs 7,40,900 which is totally different from the figure of Rs 7,69,800 indicated in the statement of imputation. None of the engineers who prepared the valuation report though cited as prosecution witnesses appeared during the course of enquiry. This supports the defence argument that the authenticity of this document is in serious doubts. It is a fact that the income tax authorities got this property evaluated by S/Shri S.N. Jha and Vasudev and as per this report at pp. 50 to 63 they estimated the property at Rs 4,57,600 including the cost of land Rs 1,82,000 for ground and mezzanine floor plus Rs 2,55,600 for first floor and Rs 20,000 for cost of land. Thus both the engineers who prepared the valuation report for income tax purposes also prepared the report for the CBI and there is no indication in the subsequent report as to why there is a difference in the value of the property. A perusal of these two reports reveals that there is difference in the specification of the work. The valuation report prepared by Shri S.N. Jha for ground floor for income tax purposes clearly states that the structure was having "RCC pillars at places, brickwork in cement mortar, RCC lintel, 60 cm walls, 9 inch floor height, 17.6, 8.00, 8.00 inch" but in the report for CBI which was also prepared by him the description is "RCC framed structure open verandah on three sides in the ground floor". Similarly, for the first floor it is written in the report as "partly framed structure and partly load being walls, floor heights 3.20 mm. Further Shri S.N. Jha on p. 54 of Ex. D-1 had adopted a rate of Rs 290 per sq. mtr. for ground floor and adding for extra height he had estimated ground floor including mezzanine floor at Rs 2,02,600. But for the report at Ex. S-20 the rate has been raised to 365 per sq. mtr. There is no explanation for this increase of rate by Rs 75 per mtr. It is also observed that for the updating of the cost of index 5% was added to the rate of Rs 290 as per p. 55 of Ex. D-1 by Shri S.N. Jha

but this has been raised to 97% as an escalation to the cost of index in Ex. S-20 without explaining or giving the reasons therefor. It is surprising that same set of engineers have adopted different standard for evaluating the same property at different occasions. Obviously, either of the report is false and it was for the prosecution to suitably explain it. In the absence of it the only inference to be drawn is that report at Ex. S-20 is not authentic. Since the same set of engineers have done the evaluation earlier and if subsequently they felt that there was some error in the earlier report, they should have explained detailed reasons either in the report itself or during the course of enquiry. Therefore, Ex. S-20 is not reliable.

20. Moreover a perusal of Ex. S-20 reveals that Shri Vasudev, Executive Engineer has recorded a note as follows:

'Hence the valuation of Shri S.N. Jha was never superseded by any other estimates. As is confirmed from the records, his estimated figures were only accounted for by the ITO Bokaro.' Thus according to Shri Vasudev, who was the seniormost among the three CPWD engineers who prepared Ex. S-20, the valuation of ground floor remains at Rs 1,82,600 plus Rs 20,000 for the cost of land. The first floor as per Ex. S-20 was estimated at Rs 2,55,600 and a total of all this comes to Rs 4,57,600 which is very near to the declaration of actuals to the income tax authority and also the estimated cost by the Bokaro Steel Township Engineer and the government approved valuer.

21. It is clear from the above discussions that though the document cited in Annexure III is a joint report of two engineers what has been brought on record is a document signed by three engineers, the same set of engineers who evaluated the property for income tax purposes, and there is a vast difference in the specifications and the rates adopted for calculating the cost in Ex. S-20 have been increased without any explanation and none of these engineers were produced during the course of enquiry to clarify the position. Hence the authenticity of Ex. S-20 is doubtful as claimed by the defence.

22. It needs to be mentioned that the report at Ex. S-20 has evaluated the ground floor at Rs 4,85,300 and a note to the effect that 10% should be allowed for self- supervision and procurement of material has also been recorded at the end. On this basis the net value of ground floor comes to Rs 4,36,810 (Rs 4,85,344-Rs 48,534). The first floor has been evaluated at Rs 2,55,600 after allowing the allowance for self- supervision and a total of both items would come to Rs 6,62,410. Thus, even the report at Ex. S-20 does not support the prosecution case that as per the report of CPWD Engineers the property is valued at Rs 7,69,800. As the property assessed by the income tax authority for Rs 4.67 lakhs and even the valuation given by the Bokaro Steel Township Engineer and the government-approved valuer are very near to this figure, the reasonable value of this property could only be taken as 4.75 lakhs assessed by the Bokaro Township Engineer on detailed estimate basis."

5. He further submits that the Hon'ble Supreme Court has recently considered this

aspect of the matter in the case of " Ashoo Surendranath Tewari V. Deputy

Superintendent of Police, EOW, CBI and another" (2020) 9 SCC 636 wherein para 8

it has been held as under:-

"8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya v. State of Bihar [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , the question before the Court was posed as follows: (SCC pp. 2-3, para 3) "3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission."

6. On these grounds, he submits that entire criminal proceeding may be quashed. He

submits that without appreciating all these aspects of the matter the learned court has been

pleased to reject the discharge petition which is against the mandate of law.

7. On the other hand, Mrs. Nehala Sharmin, learned counsel for the State submits

that the police investigated the matter and in the case diary conspiracy against the petitioner

is made out. She submits that the learned court has rightly taken cognizance and

subsequently, discharge petition has been rejected. On these grounds, she submits that no

case of discharge is made out. She submits that leave was never sanctioned and in that view

of the matter the proceeding may not be quashed.

8. In view of above submissions of the learned counsel for the parties, the Court has

gone through the materials on record, contents of F.I.R, petition, supplementary affidavit

and counter-affidavit of State. Admittedly, the F.I.R. was registered against the petitioner for

the offences of Indian Penal Code and section 7 of the Bihar Fertilizer Control Act. The Court

finds that for the same charge the petitioner was departmentally proceeded and in the

department proceeding the person who has lodged the F.I.R. was called upon to give

evidence and he has filed the petition before the competent authority stating that wrongly

case was registered against the petitioner and the petitioner was on leave from 25.08.2011

to 28.08.2011. The petitioner replied to the enquiry officer and the enquiry officer has

exonerated the petitioner of charges.

9. Looking into Clause 7 of Fertiliser (Control) Order, 1985 it appears that it is for

the dealers to be registered. No penal section is there. Further the learned court has taken

cognizance under the Bihar Fertilizer Control Act, 1985. Admittedly there is no such Act. Of

course there is Fertiliser (Control) Order, 1985. In view of Clause 27 of the Fertiliser (Control)

Order, 1985 the Fertiliser Inspector is authorized by the State Government to institute the

F.I.R. or investigate however in the case in hand the Block Development Officer has lodged

the F.I.R. who is not the competent authority.

10. In view of that it appears that the learned court has taken cognizance under

section 7 of Bihar Fertilizer Control Act, 1985 which is not an Act however, the control order is

there and the F.I.R. was not registered by the competent authority in view of Clause 27 of

Fertiliser (Control) Order, 1985 which shows that there is non-application of judicial mind.

Further the Specific control order is there. How the case under the I.P.C. is made out, is not

discussed in the order by which discharge petition filed by the petitioner has been rejected.

The petitioner has already exonerated in the departmental proceeding and in view of that

judgments relied by the learned counsel for the petitioner in the case of "P.S. Rajya"

(supra) and " Ashoo Surendranath Tewari (supra) strengthen the case of the

petitioner.

11. In view of above facts, reasons and analysis, the entire criminal proceeding

including order taking cognizance dated 02.12.2011 as well as order dated 15.06.2017

whereby discharge petition has been rejected, in connection with Kathikund P.S. Case No. 36

of 2011, corresponding to G.R. No. 1124 of 2011, pending in the Court of learned Additional

Chief Judicial Magistrate, Dumka, are quashed.

12. The petitioner is discharged from the charges.

13. This petition is allowed and disposed of. Pending I.A., if any, stands disposed

of. Interim order is vacated.

(Sanjay Kumar Dwivedi, J.)

Satyarthi/