S.N. Phukan, J.
1. By this common judgment and order, I shall dispose of four criminal revision petitions registered as Criminal Revisions Nos. 62, 63, 64 and 65 of 1990. The petitioners have prayed for quashing the criminal proceeding being No. RC/3/8 CIU(C) registered under Section 120B, I.P.C. read with Section 5(2)/5(1)(d) of the Prevention of Corruption Act, 1947 and Sections 468 and 471, I.P.C. pending before the learned Judicial Magistrate, 1st Class (Special Magistrate), Gauhati and registered as case C.R. Case No. 206C/85.
2. Briefly stated, facts are as follows:
The petitioner in Criminal Revision No. 62/90 was the Branch Manager, Sales at Gauhati, the petitioner in Criminal Revision No. 63/90 was Stock-yard Superintendent and both the petitioners in Criminal Revisions Nos. 64 and 65 of 1990 were Senior Assistant (Cash Branch) and Senior Assistant (Sales) of the Gauhati Branch of the Steel Authority of India, which is a Govt. of India undertaking being a Government Company within the meaning of Companies Act. The alleged offence relates to the year 1978-79. On receipt of the reliable information regarding unauthorised and illegal disposal of iron and steel materials allotted to the Govt. of Nagaland by the Steel Authority of India for distribution amongst public in the said State and defrauding the said Steel Authority of India for a considerable amount, the Central Bureau of Investigation suo motu filed the F.I.R. and registered a case in the year 1980. The case was registered under Sections 420/468 and 471, I.P.C. and under Section 5(2)/5(1)(d) of the Prevention of Corruption Act, 1947 and the investigation was also taken up. Ultimately, charge-sheet was filed before the Court on 11-3-85 against 26 persons including the present petitioners and out of the above 26 persons, two persons, namely, Tarachand Gupta and Ram Kr. Gool, Manager and Asstt. Manager of M/s. Dooars Transport (P.) Ltd. were granted pardon. It may be stated that though initially the case was registered under Sections stated above, in the charge-sheet, which has been annexed with the petitions, it was mentioned that a case under Section 120B read with Sections 420, 468, 477A, I.P.C. and Section 7 of the Essential Commodities Act read with Clause (7) of Iron and Steel (Control) Order, 1956 was made out against all the accused persons.
3. According to the prosecution the Steel Authority of India made a scheme under which the said Authority would arrange for transportation of steel materials to different parts of the northern sector free of charge and transportation charges would be borne by the said Authority and to implement the scheme, tenders were called for and two transport contractors, including M/s. Dooars Transport (P.) Ltd. were given the contract for transportation of steel materials from Gauhati office of the said Authority to other States. The Government of Nagaland appointed its own handling Agent to lift the steel materials for transportation to Dimapur by the above approved contractor, M/s. Dooars Transport (P.) Ltd. Payments were made by Demand Draft by the Govt. and on receipt of the price for the steel materials, the Steel Authority issued delivery orders for lifting of materials from its stockyard at Gauhati and the nominees of the Government of Nagaland issued certificates showing receipt of the steel materials at Dimapur, Nagaland on the consignment notes/delivery challans. According to the prosecution the transporters in collusion and in conspiracy with others including the nominees of the Govt. of Nagaland and traders entered into conspiracy and steel materials which were meant for Nagaland and lifted by authorised Agent from the Stockyard, Gauhati were not transported to Dimapur, but sold at Gauhati. From the charge-sheet it reveals that procedure for passing the bills for transportation charges to the transport contractors was that the materials would be transported by the transport contractors and the particular transporter would lift the materials from the stockyard for onward transportation to Dimapur and the consignment notes which would accompany the steel materials and the trucks would be signed by the nominees/allottees of the Govt. after receiving the materials at Dimapur. The trucks would also produce weighment slips showing both the weight of the steel materials so transported as well as the truck which actually transported the said materials. On the basis of these documents, the transport contractors used to raise bills for payment by the Steel Authority of India and the bills were verified and checked during the above period by the accused petitioner of Criminal Revision No. 63 of 1990 in his capacity as Stockyard Superintendent and subsequently the accused petitioner in Criminal Revision No. 62 of 1990, who was the Branch manager (Sales) used to sign those bills as required. According to the prosecution, other two accused persons in other two criminal revisions also participated in passing of the bills of transporters which were not genuine and these bills contained untrue and incorrect facts as according to prosecution the steel materials were sold at Gauhati instead of sending these to Dimapur. It has also been mentioned that two main accused persons namely, Tarachand and R.K. Gool, Manager and Asstt. Manager of M/s. Dooars Transport (P) Ltd. were made approver under Section 306, Cr.P.C. However, R. K. Goel died after his statement under Section 161, Cr.P.C. was recorded. According to prosecution due to wrongful acts of the present petitioners in conspiracy with the transporters, nominees of the State Government and other traders, the Steel Authority of India was cheated to the extent of Rs. 83,000/- and odd. It may be stated that there was no complaint by the Govt. of Nagaland that the steel materials in question were not delivered at Dimapur. On the top of this, there is also no complaint from the Steel Authority of India that the authority was cheated by the above acts of the present petitioners to the extent of the amount as alleged by the prosecution.
4. I have heard the learned counsel for the petitioners and learned Special Public Prosecutor, C.B.I. Learned counsel for both the parties have also submitted written arguments.
5. Before the contentions of the learned counsel for the parties are taken up, the law regarding inherent power of this Court for quashing such a proceeding, as laid down by the Apex Court, may be summarised as follows, namely (i) where it manifestly appears that there is a legal bar, e.g., want of sanction; (ii) where allegations in the FIR or the complaint taken at their face value do not constitute any offence; and (iii) where the allegations made against the accused do constitute an offence, but there is either no legal evidence in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. It has to be borne in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly and manifestly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation, and while exercising inherent power this Court would not ordinarily embark upon an enquiry as to whether the evidence in question is reliable or not, which is the function of the trial Court see R.P. Kapoor : 1960CriLJ1239 . IN Rajendra Nath, : 1972CriLJ268 , the Apex Court also held that the High Court can go into the question whether there is any legal evidence justifying the conclusion of the Magistrate as to whether a prima facie case has been established or not.
6. I may also refer to the decision of the Apex Court in Nagawwa v. Veeranna : 1976CriLJ1533 where the Apex Court also categorised the cases where High Court can quash a criminal proceeding. The said grounds, inter alia, are (i) where the allegations made in the complaint or the statement of the witnesses recorded taken at their face value make out absolutely no case against the accused persons or where the complaint petition does not disclose the essential ingredients of an offence alleged to have been committed by the accused; (ii) where the allegations made in the complaint petition are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (iii) where the discretion exercised by the Magistrate in issuing process is capricious or arbitrary having been based on no evidence or on materials which are wholly irrelevant or inadmissible; and (iv) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
7. Keeping in view the above law, let me consider the cases in hand.
8. The first point that has been urged on behalf of the petitioners is that though the F.I.R. was initially registered under Section 120B, IPC read with 420, IPC and under Section 5(2)/5(1)(d) of the Prevention of Corruption Act, 1947 and also under Sections 468 and 471, IPC, the prosecution has given a complete go by to the provisions of the Prevention of Corruption Act and in the charge sheet, it was submitted that a case was made out under various sections of the IPC and Essential Commodities Act read with Clause 7 of the Iron and Steel (Control) Order. 1956 as stated earlier and thereby circumventing the provisions of the Prevention of Corruption Act, 1947 regarding obtaining sanction for prosecuting for the present petitioners. If this submission is accepted, the entire proceeding is liable to be quashed in respect of the present accused petitioners in view of the above law laid down by the Apex Court.
9. From the charge sheet and the submissions, both oral and written, made before this Court, contention on behalf of the C.B.I. is that for the present case, no sanction is necessary. According to prosecution the accused petitioner Sri B.N. Singh, the Stockyard Superintendent appended the certificate in the bills submitted by M/s. Dooars Transport (P) Ltd. that 'certified that trucks have been engaged by M/s. Dooars Transport (P) Ltd.' and accused petitioner S.N. Choudhury who was the Branch Manager (Sales) also appended the certificate on the bill that 'work claimed to have been done actually performed and quantity shown against each is correct'. Further according to prosecution other accused-petitioners, namely, Ram Chandra Das and Rakhal Das Sr. Assistants processed the bills for payment. On these allegations the prosecution has tried to rope in the present petitioners.
10. According to prosecution after the transport contract was finalised accused Durgalal and other private Traders approached R.K. Gool of Dooars Transport (P) Ltd. and told him that complete documents ostensibly showing the delivery of steel materials at Dimapur would be provided to the transporter and the transporter would not be required to transport the steel materials to Dimapur and the delivery could be taken at Gauhati itself and as a result without transporting the material to Dimapur the transporter would be able to realise the transport charges from the Steel Authority, which would be shared between the private Traders and transporters. Goel after consultation with Tarachand approved the proposal. Similarly, accused S.S. Agarwalla and accused G.D. Agarwalla made the same proposal to Goel, which was also accepted. According to prosecution the object of this criminal conspiracy was to take delivery of the steel at Gauhati and disposed of the same at Gauhati and submit false transaction bill to the steel Authority and share illegally the transport charges between them. The prosecution has alleged that in pursuance of the said conspiracy the steel materials meant for Nagaland were disposed of illegally at Gauhati by the accused private traders in collusion with the transporters M/s. Dooars Transport (P) Ltd., It also claimed the share of transport charges illegally with other accused.
11. According to prosecution the present accused petitioners, who were employees of the Steel Authority of India were members of the aforesaid criminal conspiracy, as they processed the payment of false bills submitted by the transporter and that whatever the accused petitioners did in facilitating the local disposal of the Steel at Gauhati in contravention of the provisions of the Iron and Steel (Control) Order, 1956 and payment of transport charges against the false bills was to accomplish the said criminal conspiracy. The main object of the conspiracy was to cheat the Steel Authority and to commit the offence under the Essential Commodities Act. According to the prosecution the above criminal conspiracy was not by accused petitioners in their capacity as public servants.
12. On the above facts it is not clear how the prosecution could take the plea that conspiracy, if any, between the above persons with the accused-petitioners could be said to be not by the present petitioners in their capacity as a public servants. It may be stated that there is no dispute that the present petitioners were public servants being employees of a Government Company in view of the provisions contained in Section 21, IPC and Section 2 of the Prevention of Corruption Act, 1947. I may also add that in the charge sheet, it has been alleged that the Steel Authority of India was cheated by the action of the present petitioners to the extent of more than Rs. 80,000/- and this statement fortifies the above finding that conspiracy, if any, or the alleged illegal passing of bills by the present petitioners was done in their capacity as employees of the Steel Authority and in other words in their capacity as public servants. Therefore, previous sanction under Section 6 of the Prevention of Corruption Act, 1947 is a must in the case for taking cognizance by the learned court. So, the order dated 14-3-1985 passed by the learned C.J.M. taking cognizance of the case after receipt of the charge sheet is not tenable in law in view of the ratio laid down by the Apex Court in R.P. Khapoor (supra) and Nagawwa (supra) and in the result the entire proceeding is liable to be quashed as the proceeding suffers from legal defect i.e. taking up of cognizance without sanction, which is in contravention of the mandatory provisions of Section 6 of the Prevention of Corruption Act, 1947.
13. It has been urged on behalf of the prosecution that the alleged conspiracy was not entered into by the present petitioners in their official capacity, which was already rejected as stated above. It has further been urged that it is a simple case of committing offence under the IPC and also provisions of the Essential Commodities Act and as such no sanction is necessary. On the other hand, it has been contended on behalf of the accused-petitioners that the prosecution having failed to obtain previous sanction has filed the case under the aforesaid Section of IPC and provisions of the Essential Commodities Act in order to circumvent the provisions of Section 6 of the Prevention of Corruption Act, 1947.
14. On behalf of the prosecution, it has been urged and also put in written argument that the object of the alleged criminal conspiracy entered into between the present petitioners, the transporter and other private traders was not to commit the offence of criminal misconduct as public servant as envisaged under the Prevention of Corruption Act and as such sanction is not necessary. It has also been urged that whatever the accused-petitioners did was only to facilitate illegal disposal of steel at Gauhati in contravention of the provisions of the Iron and Steel (Control) Order, 1936. In para 28 of the written argument, it has also been stated that the main object of the conspiracy in the instant case was to cheat the Steel Authority and to commit offence under the Essential Commodities Act. As stated above, the prosecution case is that two accused-petitioners appended false certificates and other accused persons processed the bills for payment.
15. Thus from the prosecution's own case it is absolutely clear that whatever the accused-petitioners did was in their capacity as the employees of the Steel Authority and also their alleged intention was to cheat the said Authority. From the above admitted facts of the prosecution, if accepted would clearly show that the allegation of the prosecution was that the accused-petitioners abused their position as a public servant, namely as officials of the Steel Authority of India. In the written argument for the prosecution, it has also been stated that payments were made to the accused-petitioners by the transporter for passing the bills and as such the alleged conspiracy or act of the accused-petitioners was to obtain pecuniary advantage. Thus, I am of the opinion that the present case against the accused-petitioners on the basis of the allegations of the prosecution squarely comes within the provisions of Section 5 Corruption Act and as such sanction under Section 6 of the Act is a must, which is absent in the cases in hand. As stated earlier, there is no dispute at the Bar that the accused-petitioners were public servant. It may be stated that Patna High Court in Subrato Shaha v. State of Bihar 1990 (1) Crimes 8 held that the employee of the Steel Authority of India is a public servant under the provisions of Section 21, IPC and as such sanction is required for prosecution of such employee. In view of the clear provision of Section 21, IPC I find no reason to hold a different view.
16. There is a dispute regarding the number of conspiracies in the case in hand. According to the prosecution there was one conspiracy, but according to the defence there were two. In my opinion this is not relevant and whatever conspiracy that took place, the accused persons participated, if the prosecution story is accepted, in their capacity as employees of the Steel Authority.
17. Situated thus, I held that in this case sanction under Section 6 of the Prevention of Corruption Act, 1947 is necessary and in absence of such sanction, the cases against the present petitioners must fail.
18. Regarding the doctrine of circumvention, I may add that this Court has consistently held that if an offence falls under provisions of the Act for which previous sanction is necessary, and also attracts the mischief of some of the provisions of the Penal Code for which sanction is not necessary, the provisions of the Section requiring sanction cannot be given a go by prosecuting the public servant for an offence for which no sanction is necessary, as such a course would frustrate the purpose for which previous sanction has been deemed to be necessary by the legislature for example see Sudhendra Kumar Bhattacharjee v. State 1988 Cri LJ 1563. In the case in hand also as the alleged offence comes under the provisions of the Prevention of Corruption Act, the prosecution cannot avoid sanction as required under Section 6 of the said Act by submitting charge-sheet under some other law. It may be stated that in the charge-sheet there is no statement that no case against the present accused-persons has been made out under the provisions of Prevention of Corruption Act, 1947.
19. According to prosecution, the conspiracy was to violate the provisions of the Iron and Steel (Control) Order, 1956 issued under the Essential Commodities Act and accordingly charge-sheet has been submitted against the all accused persons including present petitioners under Section 7 of the Essential Commodities Act and other sections of the IPC. In other words, the prosecution is trying to circumvent the provisions of Prevention of Corruption Act, 1947 in case of the present accused-petitioners, which is not tenable in law. On the above ground also the present petitions are liable to be allowed.
20. It has been urged on behalf of the accused persons firstly that the pardon granted to the employees of the Dooars Transport (P) Ltd., who were the main accused, were in contravention of the provisions of the law contained in Section 306, Cr.P.C. It has also been urged that the charge-sheet was not submitted before the competent court and that in view of the inordinate delay the entire proceeding has to be quashed. Regarding delay, it has been submitted that the F.I.R. was filed in the year 1980, but the charge-sheet was submitted in the year 1985 and prosecution wants to examine 245 witnesses and prove 1246 documents and this process will take about 20 years or more. This delay will deprive the accused petitioners from fair trial, thereby violating the Constitutional mandate as enshrined under Article 21 of the Constitution. Various decisions of the Apex Court have been placed by both sides.
21. It may be stated that in this case, charge-sheet has been submitted against 24 accused persons and as such I do not propose to express any opinion on the above points as the present petitions are for quashing proceeding against four accused persons. That apart, as the accused person who is alive and in whose favour pardon was granted is not before this Court and no order against him can be passed in his absence.
22. For what has been stated above, I hold that all the four petitions, namely Criminal Revisions 62, 63, 64 and 65 of 1990 filed by accused persons S.N. Choudhary, B.N. Singh, Ram Chandra Das and Rakhal Ch. Das have merit and accordingly these petitions are allowed by quashing the criminal proceeding in question against them. They are released from the liability of the bail bond.