Pramod Kumar Jha vs Union Of India Through Central ...
2023 Latest Caselaw 2094 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. M. P. No.2436 of 2022
   1.Pramod Kumar Jha
   2.Ghewar Singh Bhati
   3.Ramjit Prasad                          . .... .. ... Petitioner(s)
                 Versus
   Union of India through Central Bureau of Investigation.
                                                      .. ... ...Opp. Party(s)
                       With
                 Cr. Revision No.1026 of 2022
   1.Ghewar Singh Bhati
   2.Pramod Kumar Jha
   3.Ramji Prasad                           .... .. ... Petitioner(s)
                       Versus
   Union of India through Central Bureau of Investigation.
                                                      .. ... ...Opp. Party(s)
                       ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

For the Petitioner(s) : Mr. Anil Kumar Sinha, Sr. Advocate Mr. S. Suman, Advocate Mr. Ajit Kumar, Sr. Advocate Mr. Mukesh Kumar Sinha, Advocate For the CBI : Mr. P.A.S. Pati, Sr. SPP ......

C.A.V. on 01.05.2023 Pronounced on 19.05.2023.

1. Both these matters arise out of the same case and for better appreciation both have been heard together and will be disposed of, by this common order/ judgment.

2. Cr.M.P No. 2436 of 2022 is directed against the order of the Court below, whereby and whereunder the petition filed by the petitioner for direction to Central Bureau of Investigation (CBI) for further investigation under Section 173(8) Cr. P.C. has been rejected in connection with R.C. No.11A/ 2010-(R) by the learned Court below.

3. Criminal Revision 1026 of 2022 has been filed against the order by which the discharge petition filed by the petitioners has been rejected and the Court found sufficient materials for framing of charge under Section 120 B r/w 409 of IPC and Section 13 (2) r/w 13(1)(C) of the P.C Act 1988.

4. The present case appears to have a chequered history. The list of dates will reflect the story of delay from its institution in the year 2010 till date on 30.7.2022 when the discharge petition has been rejected and is under challenge in the instant case.

[8.4.2010] The FIR lodged in RC-11 (A)/10-R against these petitioners under Sections 120B, 420, 409, 477A IPC and under Sections 13(2) read with Section

13(1)(c) and (d) of the P.C Act for shortage of coal with respect to Coal Stock Heap No.1(a), (B&C), 2,7,9 and 11 were measured.

[14.05.2010] R.C. No.13A/2010 (R) registered with respect to heap no.11 against four officials.

[02.07.2011] Cognizance taken against these petitioners on the basis of the second charge-sheet in R.C.No.13A with respect to shortage in heap no.11. [30.09.2011] 1st Charge-sheet submitted in R.C. No.11A/ 2010(R) with respect to heap other than heap no.11 against three accused persons, namely, (1) Ghewar Singh Bhati, (2) Pramod Kumar Jha and (3) Ramjee Prasad relating to shortage of 1,33,794 MT of coal.

[19.10.2011] Cognizance on the basis of charge-sheet. [13.4.2012] W.P.(Cr.) No.407 of 2011 and W.P.(Cr.) No.408 of 2011 were heard together and the cognizance as well as entire criminal proceeding arising out of R.C. No.13A/2010-R were quashed in view of the ratio decided in T.T. Antony vs. State of Kerala, reported in 2001(6) SCC 181. While disposing of the Writ Petitions, it was observed that the investigating agency would be at liberty to seek leave of the Court in R.C. No.11A/2010-R for making further investigation for filing further report/ reports under Section 173(8) Cr. P.C. On joint prayer/ petition , CBI Court allowed for further investigation in RC- 11A 21.10.2013 :- Supplementary charge-sheet vide Charge-sheet no.03 of 2013 was submitted. In the supplementary charge-sheet, the shortage of coal in heap no.11 and various points raised by the accused persons were considered. [29.11.2013] : Petition was moved by accused, Ghewar Singh Bhati and Pramod Kumar Jha on 29.11.2013 for further investigation which was allowed by the learned court below.

[28.01.2014] The court of learned Special Judge, CBI observed that points raised by the petitioner(s) were not duly considered and ordered for further investigation. [23.02.2016] :-Pursuance to the direction of the learned court below to hold further investigation, supplementary charge-sheet under Section 120B read with Sections 409 IPC and under Section 13(2) read with Section 13(1) (C ) of the P.C. Act was filed.

[19.07.2016] :- Another petition was moved on behalf of the accused persons for further investigation .

[25.11.2019] :- The impugned order passed was challenged in Cr. M. P. No.1203 of 2018 which was rejected by this Court.

[27.07.2020] :- The said order (passed in Cr.M.P. No.1203 of 2018) was challenged before the Hon'ble Supreme Court and vide order dated 27.07.2020, the Supreme Court has dismissed the SLP.

[23.09.2021] :- Another petition for further investigation was filed before the learned court below which was rejected vide order 05.04.2022 and against the order of dismissal, the instant Cr. Misc. Petition has been filed. [30.07.2022] :- Discharge petition was rejected and aggrieved by which, the instant revision petition(s) has been filed.

PROSECUTION CASE

6. A Joint Surprise Check ("JSC" in short) was carried out at Urimari Open Cast Project of Central Coalfields Limited by a team of CBI assisted by officers from the Vigilance Department of Central Coalfields Limited and the Surveyors from Central Coalfields Limited and CMPDIL between 23.01.2010 and 14.02.2010, on allegation of shortage of coal. As per the JSC memorandum prepared on 18.02.2010, taking 14.02.2010 as the cut-off date for calculation and assessment of coal stock possession, a huge shortage was found of 2,55,529.04 MT in the entire Urimari OCP.

7. Pursuant to the JSC's outcome, CBI registered FIR as RC 11(A)/2010-R on 08.04.2010, against four persons; Satya Narayan Singh, Ghewar Singh Bhati, Pramod Kumar Jha and Ramji Prasad on the ground that they were custodians of the coal stock and were supposed to protect the stock, and they were prima facie responsible for shortage of coal stock which was allegedly misappropriated by them in criminal conspiracy amongst themselves and others. This FIR covered allegation of shortage pertaining to all the heaps, including Heap No.11 of Urimari OCP. The JSC memorandum was made enclosure to it.

8. In this regard, a Handing over-taking over memo was also prepared and signed by the concerned persons. Thereafter, coal was being transferred from Urimari Colliery and Birsa OCP to this siding during the relevant period for dispatch by railway rake. At Sauda Railway Siding (Heap No.11) the records of receipt and dispatch of coal was separately maintained. The coal was transferred and received at the siding from the collieries after weighment. The Saunda Railway Siding (Heap No.11) is only the dispatch unit whereas production is made only in the colliery 1(a), 1(b&c),2,7 and 9.

9. In the first charge sheet in RC-11A 1,33,794 MT of coal stock was found to be misappropriated from the measurement of coal heap made during the joint

surprise check conducted between 23.01.2010 to 14.02.2010 causing wrongful loss to the CCL for a sum of Rs.10,56,97,260/-.

10. Supplementary Charge sheet in matter pertaining to RC-13 (A)/2010-R against these petitioners regarding allegation of misappropriation of 1,23,541.82 MT coal from Heap No.11 at Saunda Railway Siding.

11 .In pursuant to the direction of the Ld Court below further investigation was conducted and the supplementary charge sheet No.1/2016 U/s 120-B r/409 IPC and Section 13(2) r/w 13 (1)(c) of the PC Act was filed against these petitioners. It was found that calculation of receipt and dispatch of coal at Saunda Railway Siding (Heap No.11) for the period April 2009 to December 2009 revealed that there was a shortage of coal stock to the extent of 18,558.14 MT at the end of December 2009. There was a shortage of coal stock to the extent of 86,862.05 MT at the end of March 2010. Calculation of production and dispatch of coal from Urimari Colliery revealed that there was an excess of coal stock to the extent of 17,758.43 MT. The excess of such huge quantity of coal at the production unit ie Urimari was possible only because the production of coal was not properly reported as no coal was received at this site from any other source except by internal production. After huge shortage of coal was detected during joint surprise check, the accused persons produced coal but did not properly report the same. This excess coal was thereafter dispatched and on the basis of the dispatch, it has been claimed that there was no shortage as alleged.

PLEA OF PETITIONER

12. The petitioners had refused to sign the joint surprise check memorandum as the measurement was done by adopting a faulty procedure. The yellow blook (old) allowed+/- 5% variation in between the physical stock and book stock.

13. CIL coal stock measurement -2009-2010 w.r.t measurement dated 1.4.2010 to 4.4.2010, the percentage shortage vis-à-vis book stock was within tolerance level. There were other evidence of measurements duly signed by the officers of the colliery that contradicts the findings based on measurements made by CBI.

14. The annual report and accounts of 2010-11 duly audited by the Statutory Auditor and the Comptroller and Auditor General of India, under the heading INVENTORY at item 5.2, physical stock has been adopted at two other projects which found the difference being beyond 5%, but no such difference was found at Urimari OCP. Other evidences of similar nature has been relied upon to buttress the argument that there was no difference between the physical and book stock at Urimari OCP.

15. The investigating agency has arrived at diametrically opposite finding in the 3rd charge-sheet dated 23.02.2016 whereby no shortage in physical coal stock at Urmari OCP has been found beyond the permissible limit of plus/ minus 5%. In the 1st Charge-sheet, the main allegation was that there was shortage of coal to the tune of 1,33,794/- Metric Tonne of coal at Urimari OCP. It is submitted that as per the supplementary charge-sheet (3rd Charge-sheet), on investigation, it was found that there was excess of 83,858,52 tonnes of coal in Heap No.1(a), 1 (b &

c), 2, 7 and 9 and further excess of 27,257.02 Metric Tonnes in Heap No.11 at Saunda Railway Siding.

16. It is submitted that for the reasons cited above the petitioners were entitled to be discharged .Learned counsel for the petitioner in support of his submissions has relied upon the following authorities :-

(i) Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr. passed in Criminal Appeal No.472 of 2021 (arising out of Special Leave Petition (Crl.) No.10157 of 2019)

(ii) The State by S.P. through the SPE CBI vs. Uttamchand Bohra, passed in Criminal Appeal No.1590 of 2021 (arising out of Special Leave Petition (Crl.) No.9608 of 2021) at Para-21.

(iii) M.E. Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru, passed in Criminal Appeal No.957 of 2017 at Para-14.

(iv) 2021 SCC OnLine SC 367.

17 .Learned Sr. SPP for the CBI has contested the plea of the petitioner for being discharged of the offence. It is submitted that as per the 1st measurement which is charge-sheet no.1, there was shortage of coal of 1,33,794 metric tonnes. However, in pursuance to the direction of the learned Special Court for further investigation and measurement of stock, in the second charge-sheet also there was physical verification of Heap no.11, and shortage of coal was found.

18.. As per heap 1(a), 1(b & c), 2, 7 and 9 of Urimari Colliery is concerned, in the 3rd charge-sheet for further investigation, it was found that after shortage of coal was detected during surprise check, the accused persons made effort to make it up by resorting to unreporting of coal produced by them. As a result of this , the physical stock was found to be in excess of the book stock at the production unit. This excess stock was then dispatched to show that no shortage existed.

19. It is further submitted that this Court in Cr. M. P. No.1203 of 2018 vide order dated 25.11.2019 at Para-36 has specifically noted that "measurement which has

been taken by C.B.I for determining the stock of coal was challenged on several grounds, but that cannot be subject matter of adjudication at the stage of order taking cognizance, rather they may be raised at appropriate stage as defence."

20. It is submitted that mode of measurement was right or wrong, it can only be decided only after the evidence is brought on record by both the sides. ANALYSIS & FINDING

21. I find that there is much force in the argument on behalf of the ACB that the order of this Court passed in Cr. M. P. No.1203 of 2018 against the order of the learned Court below rejecting the petition seeking further investigation has attained finality. The SLP filed against the order has been dismissed by Hon'ble the Apex Court. There is no merit in the petitioner's plea for further investigation and it is sheer misuse of Court's time in reagitating matters which has attained finality. In any case an accused of a case cannot dictate the manner of investigation to be conducted. If there was any error in the methodology adopted in measurement of the coal heap, they were at liberty to raise it during the course of trial in their defence. Criminal miscellaneous petition 2436 of 2022 is devoid of any merit and is fit to be rejected.

22. In Criminal Revision No.1026 of 2022, the order of rejection of discharge petition is under challenge basically on two counts. First, is with regard to the methodology adopted by the CBI in measuring of the coal Heaps during joint search conducted by officers from the Vigilance Department of Central Coalfields Limited and the Surveyors from Central Coalfields Limited and CMPDIL. It is contended that the standard protocol and procedure as laid down in the yellow book (old) has not been followed.

23. This court is of the view that issue regarding breach if any, in the standard procedure for measurement can be raised as a plea of defence during trial and not at the stage of framing of charge. Law is settled that charges are framed on the sufficiency of ground and at this stage a mini trial cannot be held regarding the probative value or the effect of the evidence arraigned against the accused. It has been held in State Vs R. Soundirarasu 2022 SCC On Line 1150

75. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be

"groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.

79. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected.

24. The second plea that has been raised is that there were three conflicting results of measurement in the said chargesheets submitted on behalf of the CBI. In the third chargesheet no shortage has been found in the coal stock. On these contradictory results of measurements the prosecution rests on shaky and wobbly grounds which is fit to be set aside.

25. It is settled principle of appreciation of evidence that contradiction appearing in prosecution version can be considered only at the stage of evidence, when the attention of the witnesses is drawn to the said contradictions and he has an opportunity to explain the same. It is a premature a stage to consider the materials in totality and see whether there exists any contradiction or not. In the present case, the absence of shortage in the supplementary chargesheet no.1/2016 has been explained that after huge shortage of coal was detected during joint surprise check, the accused persons produced coal but did not properly report the same. This excess coal was thereafter dispatched and on the basis of the dispatch, it has been claimed that there was no shortage as alleged.

26. . Further, there are other co-lateral evidence which is being cited on behalf of the petitioner in support of their case that there was no shortage of coal.

These materials cannot be considered at this stage and the petitioner will have the liberty to take defence and lead evidence during trial.

I do not find any illegality or impropriety in the impugned orders. Both the Cr. M. P. No. 2436 of 2022 and Cr. Revision No. 1026 of 2022 are accordingly rejected.

Pending, I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 19.05.2023.

AFR/ Sandeep