Unknown vs Shailendra
2025 Latest Caselaw 372 UK

Uttarakhand High Court

Unknown vs Shailendra on 14 May, 2025

Author: Vivek Bharti Sharma

Bench: Vivek Bharti Sharma

                   Office Notes, reports,
                   orders or proceedings
SL.
         Date        or directions and                      COURT'S OR JUDGES'S ORDERS
No
                   Registrar's order with
                        Signatures
      14.05.2025                            C-528 No. 444 of 2025
                                            And
                                            C-528 No. 450 of 2025
                                            Hon'ble Vivek Bharti Sharma, J.

Mr. Tanveer Ahmed Mir learned Senior Counsel and Mr. Shobhit Saharia, learned counsel assisted by Mr. Kartik Venu and Mr. Anand Singh, learned counsel for the petitioner/accused.

2. Mr. Piyush Garg, learned counsel for the respondent/CBI.

3. Counter affidavit filed on behalf of the respondent/CBI is taken on record. Misc. Applications (IA No. 01 of 2025) are taken on record.

4. Criminal misc. Application No. 444 of 2025 is filed under Section 528 of B.N.S.S. by the petitioner/accused for quashing of the proceedings of Case No.01 of 2014 titled as 'CBI vs. Shailendra Grover and Others' and Criminal Misc. Application No. 450 of 2025 is filed for quashing of the proceedings of Case No.23 of 2014 titled as 'CBI vs. Shailendra Grover and Others'.

5. Since common question of law and fact are involved in these petitions, therefore, both are being heard together.

6. As per the prosecution case, the brief facts are that a case was registered against the accused persons with the allegations that Joshimath Malari Road, Chamoli (Uttarakhand) was to be constructed and improved; that, for the improvement, the surfacing work was to be carried out with the departmental resources and the material required for surfacing work was to be procured from outside on contract; that, as per the prosecution, the co-accused Rajeev Makkar submitted an exaggerated false estimate for the supply of the material by stating the cost 236%; that, the accused contractor in connivance with the other co-accused prepared the fake documents to show supply of material from Haridwar whereas the same was procured from local sources thereby caused the wrongful loss to the Border Roads Organization (BRO) to the tune of `1,09,03,307/-; that, after the investigation, the charge-sheet No.01 dated 26.02.2014 was filed against eight accused persons including the present petitioner/accused/accused.

7. As per the charge-sheet, the role of the present petitioner/accused/accused was that he purportedly conducted testing of the material supplied by the contractor and mentioned the result in the Material Testing Register stating the same to be good; that, however, in the testing report submitted by the experts of IIT, Roorkee it came that grading of GSB and WAPM is out of range, consequently, the charge-sheet was filed for the offence punishable under Sections 420, 467, 468 and 471 read with Section 120-B of IPC and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act.

8. Similarly, in Criminal Misc. Application C-

present petitioner/accused was that the accused contractor in criminal connivance with other accused abused his position for procuring and utilizing the fake testing report and prepared the fake measurement book to show the receipt of the sub-standard contractual material thereby causing financial loss to the Border Roads Organization (BRO) and after the investigation, the charge-sheet no.03 dated 30.06.2024 was filed against the petitioner/accused for the offence punishable under 420, 467, 468 and 471 read with Section 120-B of IPC and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act.

9. Learned Senior Counsel for the petitioner/accused would submit that the criminal proceedings prayed to be quashed are nothing but the abuse of the judicial process.

He would further submit that the Department had also initiated an internal inquiry against the petitioner/accused and in final report by Technical Board (Annexure No.5 to the petition) it was stated that quality of road surface and quality of material appears to be satisfactory.

10. Learned Senior Counsel for the petitioner/accused would refer to Annexure no.3 to the petition, the letter in reply by the Head Quarter Chief Engineer Project Shivalik dated 25.01.2014 to Mukhyalaya Madhya Kaman, Head Quarter Central Command and would submit that this letter was in reply to the previous communication by the Mukhyalaya Madhya Kaman for giving the comments of the Officiating Chief Engineer Shivalik on the CBI report.

Learned Senior Counsel for the petitioner/accused would submit that in these comments (Annexure no.3 to the petition) it was stated that during the examination, the samples of the materials were taken from road surface two years after the completion of the work for gradation test; that, due to repeated wheel load of vehicles and wear and tear of the pavement by environmental factors, there would be a change in the gradation of the material from the original gradation at the time of supply of material by contractor; that, therefore, comparing of gradation of sample of material taken from road surface after two years with that of gradation of material supplied by contractor as per the Contract Agreement provision at such a belated stage would not be in order; that, in the contract documents it was not mentioned that contractor had to supply the material from Jwalapur or any other particular quarry or stone crusher; that, the material as per the specification was to be supplied by contractor irrespective of source or location of the quarry or stone crusher; that, these comments recommended to conduct an inquiry by constituting a Technical Board of Officer.

Learned Senior Counsel for the petitioner/accused would further submit that this recommendation of the Officiating Chief Engineer was accepted; that, the inquiry report of the Technical Board was sent to Gurgopal Singh Brigadier, Chief Engineer and this inquiry report of the Technical Board also concluded that the quality of the road surface and quality of the material was satisfactory (Annexure no.5 to the petition).

11. Learned Senior Counsel for the petitioner/accused would further submit that the petitioner/accused has already been absolved in the Departmental inquiry and the report stated that the material was satisfactory then continuation of the trial shall not only the abuse of process of law but also violate the fundamental rights of the petitioner/accused as enshrined under Article 21 of the Constitution of India.

12. Learned Senior Counsel for the petitioner/accused would rely upon a judgment of Hon'ble Supreme Court in the case of 'Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI & Another, (2020) 9 SCC 636 and argued that criminal prosecution cannot proceed against the petitioner/accused after being exonerated in the Departmental inquiry for the same allegations.

The Hon'ble Supreme Court has observed in the case of 'Radheshyam Kejriwal vs. State of West Bengal, (2011) 3 SCC 581 in paragraph no. 26 as under:-

"26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case.

Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment:

'... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined.'

13. Learned Senior Counsel for the petitioner/accused would also rely upon a judgment of Hon'ble Delhi High Court in the case of 'Subhash Sharma vs. Government of NCT, Delhi and Others', (2024) SCC OnLine Del 3762.

14. Learned Senior Counsel for the petitioner/accused would further submit that the Hon'ble Supreme Court in another case 'Ajit Singh Sodha vs. Union of India' dated 13.09.2021 SLP (Criminal) No.6489 of 2021 stayed the criminal proceedings till further orders when it was submitted by the counsel for the petitioners in that case that criminal proceedings cannot proceed against the petitioner/accused after being exonerated in the Departmental inquiry for the same allegations.

15. Learned Senior Counsel for the petitioner/accused would further submit that the standard of proof in Departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings, where the case has to be proved beyond reasonable doubt. Therefore, when the petitioner/accused has been exonerated in Departmental inquiry and it has come in the Departmental inquiry that quality of the material supplied was satisfactory, then continuation of the present criminal proceedings shall be nothing but abuse of judicial process, wastage of precious judicial time and harassment of the petitioner/accused.

16. Per contra, learned counsel for the respondent/CBI would submit that 12 witnesses have been examined in last 10 years and 18 more witnesses are yet to be examined.

He would further submit that the evidence has been recorded by the trial court and same cannot be appreciated in the petition under Section 528 of BNSS.

17. Learned counsel for the respondent/CBI would rely upon a judgment of Hon'ble Supreme Court in the case of 'Mohd. Allauddin Khan vs. State of Bihar and Others', (2019) 6 SCC 107,where the Hon'ble Supreme Court observed in paragraph no. 14 as under:-

14. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure. 1973 (for short "CrPC") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.

18. Learned counsel for the respondent/CBI would submit that in order to see whether any prima facie case against the petitioner/accused for taking cognizance is made out or not, the court is only required to see the allegations made in the complaint.

He would further submit that one more petition had been filed by the co-accused for quashing of the criminal proceedings of these cases but the same was dismissed by the Coordinate Bench of this Court.

19. Learned Senior Counsel while exercising his right to reply to the submission made by learned counsel for the respondent/CBI would submit that the ground of dismissal of the petition of the co- accused for quashing of the criminal proceedings cannot be a ground for not entertaining the petition of the petitioner/accused as every accused has got indefeasible right to make his case of his innocence at all stages and forums available under the law.

He would further submit that it may not be the case that every co-accused have identical grounds, therefore, parity of the dismissal of the petition of the co-accused cannot be drawn against the present petitioner/accused.

He would further submit that similarly, the stage of the trial will also not curtail the right of the petitioner/accused to approach the High Court invoking its repository power as enshrined under Section 528 of BNSS.

20. Considered and perused the record available on file.

21. This Court is of the view that the ambit and scope of inherent power of the High Court under Section 528 of B.N.S.S. is wide and such power can be exercised even at an intermediate stage of the trial to prevent abuse of process of any Court or otherwise to secure ends of justice.

The Hon'ble Supreme Court in the case of 'Satish Mehra vs. State (NCT of Delhi) & Another', (2012) 13 SCC 614 observed in paragraph no. 14 as under:-

"14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognised to be inherent in every High Court."

22. The Hon'ble Supreme Court in case of 'Arun Kumar Sharma and Others vs. UT Chandigarh and Another, (2005) 11 SCC 480 while admitting of the petition for quashing of the criminal proceedings but letting the trial court proceedings to go on, shall be inconsistent because if the said proceedings continue and come to final conclusion, the petition for quashment of charges under Section 528 would be rendered infructuous.

23. In the considered view of this Court that the matter needs deliberation.

24. Accordingly, these petitions are admitted.

25. List this matter on 04.06.2025.

26. Further proceedings of Case No.01 of 2014 and 23 of 2014 titled as 'CBI vs. Shailendra Grover and Others' in Criminal Misc. Application No.444 of 2025 and Criminal Misc. Application No. 450 of 2025 respectively shall remain stayed during the pendency of the petition.

27. Meanwhile, rejoinder affidavit, if any, may be filed.

(Vivek Bharti Sharma, J.) 14.05.2025 Akash