Orissa High Court

Rajiv Ranjan vs Central Bureau Of Investigation on 1 September, 2021

   AFR
                       HIGH COURT OF ORISSA, CUTTACK

                             CRLMC No.1197 of 2021

           (In the matter of application under Section 482 of the Criminal
                                   Procedure Code)

           Rajiv Ranjan                          ...          Petitioner

                                             Versus

           Central Bureau of Investigation       ...        Opposite Party


                For Petitioner      :    Mr. Kumar Shashank,
                                         Senior Advocate

                                         M/s. Abhishek Das and
                                         S. Dash, Advocates

                For Opposite Party:      Mr. Sarthak Nayak,
                                         Advocate for CBI

   PRESENT

           THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI

    Date of Hearing: 04.08.2021           Date of judgment: 01.09.2021

S. K. Panigrahi, J.

1. This petition under Section 482 of the Code of Criminal Procedure,

1973 ('Cr.P.C.') has been filed with a prayer to quash the Charge-sheet

No.05/2020 dated 21.12.2020 in CBI/SPE/ACB, Bhubaneswar P.S.

Case No.RC-06(A)/2018-BBS dated 07.06.2018 for the alleged offences

u/s.13(2), r/w Section 13(1)(d) of the Prevention of Corruption Act,

1988 (hereinafter referred to as 'PCA') and u/s 120-B and 420 of the

Indian Penal Code 1860 (hereinafter referred to as 'IPC') which is

pending in the Court of the learned Special Judge CBI, Court No.1,

Bhubaneswar.

// 2 //

2. The facts leading to the present matter, shorn of unnecessary

details, is that the S.P., CBI, Anti-Corruption Bureau, Bhubaneswar

received certain information from his sources that one Mr. B.P. Verma

while working as Executive Director (Works), Rourkela Steel Plant in

the year of 2016, conspired with one Shri. P.K. Das (the then DGM -

(Electrical), Rourkela Steel Plant), one Shri P.K. Sahoo (the then

Executive Director (MM), Rourkela Steel Plant), one Shri S.K. Dua (MD,

Reliable Hi-Tech Infrastructure Pvt. Ltd.) and the present Petitioner

(DGM - Tech, Rourkela Steel Plant, acting as Technical Advisor to Shri

B.P. Verma) and others had conspired to extend undue favour to

Reliable Hi-Tech Infrastructure Pvt. Ltd. in matters pertaining to award

of contracts, processing of tenders, release of funds/payments, etc.

3. The entire case revolves around the Rourkela Steel Plant Coke Oven

Battery 6 which was commissioned in the year 2013. The mechanical

and electrical job was carried out by M/s. Bhilai Engineering

Corporation, being the EPC Contractor after commissioning, for the

period of April 2013 to March 2014. Thereafter, the mechanical and

electrical maintenance work was awarded to M/s. Bhilai Engineering

Corporation on a single tender on non-proprietary basis at a price of

Rupees Fifty Five Lakhs per month for the period of April 2014 to

March 2015. The contract with M/s. Bhilai Engineering Corporation

was extended twice and it finally ended in September, 2015.

// 3 //

4. A limited tender enquiry was then issued to six firms for execution

of the mechanical and electrical maintenance work of the Rourkela

Steel Plant Coke Oven Battery 6. One M/s. Reliable Hi-Tech

Infrastructure Pvt. Ltd. was awarded the tender on 13.10.2015 at the

price of Rupees Thirty Lakhs Eighty Four Thousand One Hundred and

Forty per month for a period of twelve months which was due to end

on 12.10.2016. The contract was further extended for four months,

and finally expired on 28.02.2017.

5. On 18.04.2017, an indent was raised for execution of the

mechanical and electrical maintenance work of the Rourkela Steel

Plant Coke Oven Battery 6 for a period of twelve months starting

01.11.2017 to 31.10.2018. Three bidders, namely, M/s. Reliable Hi-

Tech Infrastructure Pvt. Ltd., M/s. Utkal Projects and M/s. SRG Earth

Resources participated in the tender. As only M/s. Reliable Hi-Tech

Infrastructure Pvt. Ltd. was found to be technically suitable for work,

the Tender Examination Committee chose to proceed for re-tendering.

6. A fresh tender was thus floated on 03.09.2016, whereby four parties

participated in the said tender and M/s. Reliable Hi-Tech

Infrastructure Pvt. Ltd., M/s. Tata Projects and M/s. Utkal Projects

were found to be technically and commercially sound. Due to certain

issues arising in the course of the previous tender execution, the

Technical Evaluation Committee and Commercial Evaluation

// 4 //

Committee then sought the following clarifications from the

department concerned:

" Whether the scope of work included the job of taking care of a breakdown.

-Whether adequate measures have been included in the eligibility criteria for the same."

The same has been recorded in the Tender Committee minutes dated

14.10.2016.

7. Following this, the prosecution's case is that Mr. B.P. Verma

instructed the present petitioner to return the file to the user

department, i.e. Coke Oven Department for clarifications on

26.10.2016. The Coke Oven Department on 27.10.2016 reverted with

clarifications on the queries raised and the reply mentioned that

certain new points were to be included in the new scope of work to

ensure that the issues arising in the course of the previous tender did

not arise this time.

8. The aforesaid clarification from the Coke Oven Department, i.e., the

department concerned with the tendering process, was forwarded to

the Tender Committee on 28.10.2016 and in the light of the

clarification received from the Coke Oven Department, the Tender

Committee of the Rourkela Steel Plant recommended the revision of the

eligibility criteria including round the clock mechanical and electrical

maintenance of oven machines and CDCP equipment.

// 5 //

9. Thereafter, based on the recommendations of the Tender

Committee, the tender was floated again on 29.12.2016 wherein M/s.

Reliable Hi-Tech Infrastructure Pvt. Ltd., M/s Tata Projects and M/s.

Utkal Projects participated. The bid of M/s. Utkal Projects was rejected

on the ground of not being in conformity with the eligibility criteria.

10. On 08.01.2017, Mr. B.P. Verma was arrested by the CBI in a trap

case and was suspended by the Steel Authority of India (hereinafter

referred to as "SAIL") Management. Due to the urgency of the tender,

despite the aforesaid development, the newly appointed Chairman of

the Tender Committee went ahead with the tendering process. It is

relevant to note here that the estimated cost of the tender was

Rs.28,52,829/- per month. The bid of M/s. Reliable Hi-Tech

Infrastructure Pvt. Ltd. stood at Rs.35,46,761/- and during

negotiation, M/s Reliable Hi-Tech Infrastructure Pvt. Ltd. offered a

discount of 18.52% and thus, on 21.02.2017, M/s. Reliable Hi-Tech

Infrastructure Pvt. Ltd. was awarded the contract at the price of

Rs.28,90,000/- per month for a period of twelve months.

11. The learned counsel for the petitioner submits that he was the

Technical Advisor of the aforesaid Mr. B.P. Verma in the Rourkela Steel

Plant. His work entailed providing technical assistance to various

Departments of the Rourkela Steel Plant. He was not a part of the

tendering process or the Tender Committee which finalized or awarded

// 6 //

the tender. The Tender Committee comprised of the General Manager

(Finance), General Manager (Services), General Manager (Mechanical),

Coke over Department HOD, General Manager (Coal) and was headed

by the Executive Director of Rourkela Steel Plant. The inclusion of the

petitioner's name is, therefore, completely baseless. The counsel for the

petitioner further submitted that the petitioner's name appears only

once in the charge sheet and no direct allegations attracting any of the

alleged offences is made against the petitioner. Further, the residential

premises of the petitioner was also searched on 08.06.2018 and not

even a single document or article was recovered which establishes any

pecuniary or any other relationship between the petitioner and M/s.

Reliable Hi-Tech Infrastructure Private Ltd. It was also earnestly

contended by the counsel for the petitioner that none of the essential

ingredients necessary for commission of any of the alleged offences are

made out against the present petitioner. In light of the aforesaid,

continuing the proceedings against the petitioner would be a gross

abuse of process.

12. Per contra, learned counsel for the CBI submitted that the present

petitioner acting on the instructions of his superior, Mr. B.P. Verma,

passed a "note" on 28.10.2016 to the Tender Committee wherein he

mentioned the scope of work and adequate measures to be included in

the eligibility criteria which were subsequently included in the tender

eligibility criteria. This inclusion is alleged to be made purposefully to

// 7 //

favour M/s. Reliable Hi-Tech Infrastructure Private Ltd. It is submitted

by the learned Counsel for the CBI that this offending note of the

present petitioner resulted in the change of eligibility criteria which

rendered M/s. Utkal Projects Pvt. Ltd. ineligible thereby facilitating the

success of M/s. Reliable Hi-Tech Infrastructure Private Ltd. in the

tender process.

13. Heard learned Counsel for the parties and perused the documents

on record. The petitioner is charged with the commission of offences

under Sections 120-B and 420 of the IPC and Section 13(2) r/w

Section 13 (1)(d) of the PCA, 1988.

14.Section 13(1)(d) of the Prevention of Corruption Act, 1988 is

reproduced below:

"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--

(d) if he,--

i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public

// 8 //

servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."

15. As held by the Hon'ble Supreme Court in A. Subair v. State of

Kerala 1, the essential ingredients to be satisfied for an offence to be

made out under Section 13(1)(d) of the PC Act are follows:

"14. Insofar as Section 13(1)(d) of the Act is concerned, its essential

ingredients are:

(i) that he should have been a public servant;

(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and

(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person."

16. In the case of C.K. Damodaran Nair v. Govt. of India 2 the

Hon'ble Supreme Court had an occasion to consider the word

"obtained" used in Section 5(1)(d) of the Prevention of Corruption Act,

1947 [now Section 13(1)(d) of the Act, 1988], wherein it was held:

"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Sections 5(1)(a) and (b)--and not under Sections 5(1)(c), (d) or

(2009) 6 SCC 587

(1997) 9 SCC 477

// 9 //

(e) of the Act. 'Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'."

In K.R. Purushothaman v. State of Kerala 3, the Hon'ble Supreme

Court while interpreting Section 13 (1)(d) has held as hereunder:

"21. To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act, a public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. Therefore, for convicting a person under the provisions of Section 13(1)(d) of the Prevention of Corruption Act, 1988, there must be evidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant obtains for himself, or for any person, any valuable thing, or pecuniary advantage without any public interest."

Thus, on a bare perusal of the aforesaid decisions, it is clear that the

legal position is no longer res integra in so far as the primary requisite

for making out an offence under Section 13(1)(d) of the Act is the proof

of a demand or request of a valuable thing or pecuniary advantage

from the public servant. In other words, in the absence of proof of

demand or request from the public servant for a valuable thing or

(2005) 12 SCC 631

// 10 //

pecuniary advantage, the offence under Section 13(1) (d) cannot be

held to be established.

17. In fact, a bare reading of the aforesaid provision of the Act would

also go on to show that the offence contemplated therein is committed

if a public servant obtains for himself or any other person any

valuable thing or pecuniary advantage by corrupt or illegal means; by

abusing his position as public servant or without any public interest.

The aforesaid provision of the Act, i.e., Section 13(1) (d) is similar in

nature as it was worded in Section 5(1)(d) of the earlier Prevention of

Corruption Act, 1947. A dishonest intention is, therefore, the gist of an

offence under Section 13(1)(d) which is implicit in the words used, i.e.,

corrupt or illegal means and abuse of position as a public servant. A

similar view has also been expressed by the Hon'ble Supreme Court

in M. Narayanan Nambiar v. State of Kerala 4.

18. In the present facts of the case, the present petitioner was the

Technical Advisor to the said Mr. B.P. Verma. Upon receiving the order

from his superior to seek clarifications from the Coke Oven department

pertaining to whether the scope of work included the job of taking care

of a breakdown and whether adequate measures have been included in

the eligibility criteria for the same, he sent a note to the concerned

department on 26.10.2016. Upon receiving the said reply from the

Coke Oven department on 27.10.2016, he forwarded the same to his

AIR 1963 SC 1116

// 11 //

superior, Mr. B.P. Verma, on 28.10.2016. On a bare perusal of these

facts, it is evident that the petitioner was not a part of the Tender

Committee and was rather one of subordinate staff member in the

office of Mr. B.P. Verma who was the Chairman of the Tender

Committee. It is also not the case of the prosecution that the petitioner

was a conduit for the private party. It is also relevant to bear in mind

that the "note" forwarded to Mr. B.P. Verma also was not authored by

the petitioner himself.

19. In order to drive home the allegation of conspiracy against the

petitioner, the learned counsel for the CBI drew attention of the Court

to an excerpt of a transcript of a phone call between Mr. B.P. Verma

and Mr. S.K. Dua, the MD of M/s. Reliable Hi-Tech Infrastructure Pvt.

Ltd., i.e., the prime accused in this case. However, this Court is

constrained to note that despite the claim of the learned counsel for

the CBI that during this conversation Mr. B.P. Verma had replied that

he had spoken to the present petitioner regarding the eligibility

criteria, the excerpt presented before this Court finds no mention of

the same, it also does not throw any light on the context in which the

name of the present petitioner was taken. The learned Counsel for the

opposite party has vehemently harped on the fact that the name of the

Petitioner herein had figured during the conversation between the

aforesaid two persons where they are said to be hatching a conspiracy

to "fix" the tender. However, neither from the arguments of the learned

// 12 //

Counsel for the opposite party nor from the materials produced before

this Court, i.e., case diary, transcript of the call recording etc., it is

clear as to how the Petitioner is said to have any complicit in the

conspiracy that has unravelled.

20. In order to constitute a conspiracy, meeting of minds of two or

more persons for doing an illegal act or an act by illegal means is the

first and primary condition and it is not necessary that all the

conspirators must know each and every detail of the conspiracy.

Neither is it necessary that every one of the conspirators takes active

part in the commission of each and every conspiratorial act. The

agreement amongst the conspirators can be inferred by necessary

implication. In most of the cases, the conspiracies, hatched in secrecy,

are proved by the circumstantial evidence, as the conspiracy is seldom

an open affair. The existence of conspiracy and its objects are usually

deduced from the circumstances of the case and the conduct of the

accused involved in the conspiracy. While appreciating the evidence of

the conspiracy, it is incumbent on the court to keep in mind the well-

known rule governing circumstantial evidence viz. each and every

incriminating circumstance must be clearly established by reliable

evidence and the circumstances proved must form an unerring

chain of events from which the only irresistible conclusion about the

guilt of the accused can be safely drawn, and no other hypothesis

against the guilt is possible. Criminal conspiracy is an independent

// 13 //

offence in the Penal Code. The unlawful agreement is the sine qua

non for constituting offence under the Penal Code. Conspiracy consists

of the scheme or understanding between two or more persons which

may be expressed or implied or partly expressed and partly implied.

Mere knowledge, even discussion, of the plan would not per se

constitute conspiracy. The offence of conspiracy shall continue till the

termination of agreement. In fact, it is the cumulative effect of the

proved circumstances which should be taken into account in

determining the guilt of the accused. Of course, each one of the

circumstances should be proved beyond reasonable doubt. The acts or

conduct of the parties must be conscious and clear enough to infer

their concurrence as to the common design and its execution.

21. While speaking for the Bench it was P. Venkatarama Reddi, J.

in State (NCT of Delhi) v. Navjot Sandhu 5 observes as follows:

"103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a

(2005) 11 SCC 600

// 14 //

substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."

In Sudhir Shantilal Mehta v. CBI 6, the Hon'ble Supreme Court

succinctly laid down the essential ingredients of the offence of

criminal conspiracy. The Hon'ble Supreme Court was pleased to

hold as follow:

"113. Criminal conspiracy is an independent offence. It is punishable independent of other offences; its ingredients being:

(i) an agreement between two or more persons.

(ii) the agreement must relate to doing or causing to be done either

(a) an illegal act;

(b) an act which is not illegal in itself but is done by illegal means.

It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must bear in mind that meeting of the minds is essential; mere knowledge or discussion would not be."

Apart from the alleged mentioning of the petitioner's name in the

conversation intercepted by the authorities, the context of which

remains unknown, it appears that there is nothing on record to

(2009) 8 SCC 1

// 15 //

establish even a prima facie case of meeting of minds of the

petitioner with the other accused for commission of any illegal act or

using illegal means to do an act.

22. The inherent powers under Section 482 CrPC can be exercised by

this Court in the following category of cases:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court; and

(iii) to otherwise secure the ends of justice.

The Apex Court, time and again, has observed that the extraordinary

power under Section 482 CrPC should be exercised sparingly and with

great care and caution. The Court would be justified in exercising the

power when it is imperative to exercise the power in order to prevent

injustice. In order to understand the nature and scope of power under

Section 482 CrPC, it has become necessary to recapitulate the ratio of

the decided cases.

In Connelly v. Director of Public Prosecutions 7, Lord Devlin while

dealing with similar provisions under the English law stated that

where particular criminal proceedings constitute an abuse of process,

the court is empowered to refuse to allow the indictment to proceed to

trial. Lord Salmon in Director of Public

1964 AC 1254

// 16 //

Prosecutions v. Humphrys 8 stressed upon the importance of the

inherent power when he observed that:

"it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene".

The Hon'ble Supreme Court had an occasion to deal with the concept

of inherent powers in State of Karnataka v. L.

Muniswamy 9 wherein the Court again reiterated that the wholesome

power under Section 482 CrPC entitles the High Court to quash a

proceeding when 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 another leading case like State of Haryana v. Bhajan Lal 10 the

Hon'ble Supreme Court in the backdrop of interpretation of various

relevant provisions of CrPC 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 of the

Constitution of India or the inherent powers under Section 482 CrPC

gave the following categories of cases by way of illustration wherein

such power could be exercised either to prevent abuse of the process

1977 AC 146

(1977) 2 SCC 699

1992 Supp (1) SCC 335

// 17 //

of the court or otherwise to secure the ends of justice. Thus, the

Hon'ble Supreme Court made it clear that it may not be possible to lay

down any precise, clearly defined and sufficiently channelised

inflexible guidelines or rigid formulae or to give an exhaustive list to

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.

// 18 //

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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."

The Hon'ble Supreme Court in Janata Dal v. H.S.

Chowdhary 11 observed in what circumstances the inherent powers

should be exercised:

"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

Therefore, it is necessary to consider whether the allegations in the

complaint prima facie make out an offence or not. It is not necessary

to scrutinise the allegations for the purpose of deciding whether such

(1992) 4 SCC 305

// 19 //

allegations are likely to be upheld in the trial. Any action by way of

quashing the complaint is an action to be taken at the threshold

before evidences are led in support of the complaint. For quashing the

complaint by way of action at the threshold, it is, therefore, necessary

to consider whether on the face of the allegations, a criminal offence is

constituted or not.

23. It is not even the case of the prosecution that the petitioner had

taken that money from some person and had obtained any pecuniary

advantage thereby. It was the obligation of the prosecution to satisfy

the mandatory ingredients which could implicate the petitioner under

the provisions of Section 13(1)(d)(ii). There is not even an iota of

evidence as to what kind of advantage was obtained by the petitioner

in forwarding the note received from the Coke Oven Department to the

Tendering Committee, or if he played any role in formulating the

clarifications.

24. Considering the totality of facts and circumstances, the materials

available on record, this Court does not find any reason to allow the

prosecution to continue against the petitioner. Such continuance