Judgment:
D.N. Prasad, J.
1. This application has been filed under Article 226 of the Constitution of India for issuance of an appropriate writ/order/direction for quashing the entire criminal proceedings arising out of Hatia PS Case No. 240 of 2002 corresponding to GR No. 3540 of 2002, registered under Sections 429, 465, 466, 467, 468, 469, 471 and 477A of the Indian Penal Code and Section 13 of the Prevention of Corruption Act.
2. Prosecution case in brief is that one Director, Public Relation-cum-Executive Engineer lodged an FIR alleging therein that Jharkhand State Electricity Board has invited a Tender in pursuance to NIT No. 185/J SEB/PR/01 for construction of 52 Power Sub-Station of 33/11 KV in which 14 Companies have submitted their applications. It is further alleged that Ms. MECON, Ranchi being the Technical and Commercial Adviser of the Board has enquired the fact and the Companies have been recommended for opening their price bid. After opening the price bid on 13-5-2002 and after scrutinizing the file M/s. MECON has found the rate of M/s. Jyoti Structure Ltd. as lowest, the cost of which was Rs. 131.12 crore. It is further stated that the File No. M (T)/112 was sent before the Chief Engineer (Stores and Purchase), who on the basis of the rate quoted by M/s. Jyoti structure Limited, Mumbai has sent the same for sanction before the Member (Technical), the petitioner, who has given sanction on 29-6-2002 and sent the file before the Chief Engineer (Stores and Purchase). The said file was sent by the Chief Engineer (Stores and Purchase) to the Member (Technical) for the purpose of negotiation on price and other issues for which the sanction was granted by him on 5-7-2002. It is further alleged that Shri S.N. Akhauri, the petitioner, in his detailed noted dated 26-8-2002 has not mentioned anything about the financial matters but after enquiry it was found that the petitioner in his earlier order dated 29-6-2002 in page No. 8 on the left side has entered 'high cost' and above his signature has written 'cost is too high' after 10/11-9-2002. It is alleged that the petitioner has done all these works for his benefit resulting into heavy financial loss to the Jharkhand State Electricity Board because of the reason that due to this Act, the entire thing has been given a wrong direction and he has made all efforts to allot the work to L-2. It is then stated that since the Vigilance enquiry is being done by the Cabinet (Vigilance) Department and the Inquiry Report was sent to the Jharkhand State Electricity Board by the Inspector General (Vigilance), on the basis of which order was passed for lodging the FIR. Accordingly, the FIR was lodged.
3. Counter-affidavit have also been filed from the side of respondent Nos. 1, 2 and 3 claiming therein that the present writ application is not maintainable, as the FIR has been lodged on the basis of the allegations which, prima facie, constitute the offence and the matter is still under investigation. It is further averred that Inspector General (Vigilance) of JSEB already submitted a detailed report finding the conduct of the petitioner being unbecoming of a senior officer of his stature as he made extrapolation after though with a view to put the JSEB under great loss and as such there is merit in this application, which is fit to be dismissed.
4. Mr. Dilip Jerath, the learned Counsel appearing on behalf of the petitioner, at the very outset, submitted that Inspector General (Vigilace) inquired into the matter and submitted the report indicating as extrapolation and addition of 'high cost' and 'cost is too high' subsequent to 29-6-2002 and even if the extrapolation has been made by the petitioner, that would not amount to commit any offence. It is also submitted that extrapolation meaning as per Black's Law Dictionary is 'The process of estimating an unknown number outside the range of known numbers. Term sometime used in cases when a Court deduces a principle of law from another case'.
It is further argued that whatever allegations is made in the FIR, the same does not make out any offence and if no offence is made out, the entire FIR is liable to be quashed. It is further argued that this FIR is the outcome of the mala fide attitude on the part of the Chairman, JSEB as prior to initiation of the work, the petitioner has given suggestions to the Chairman, JSEB that the work in question be completed by more than one Contractors on the rate of lowest tender so that the work can be completed expeditiously but this plea of the petitioner was not considered by the Chairman, though the Hon'ble Energy Minister has also directed the Chairman, JSEB to complete the work from two bidders on the lowest rate vide his letter No. 149 dated 30-7-2002, rather the Chairman, JSEB and other Member and the officials of Board only for wrongful gain has given the work to the bidder, M/s. Jyoti Structures Ltd. on higher rate. The petitioner categorically stated in his letter dated 10-9-2002 that when L-1 rate of all the four packages were found to be coming from one end by the same firm then it was decided by the Board vide Resolution No. 125 that out of the four packages, work of two packages shall be allotted to L-1 tendered and regarding rest of the two, a Committee was constituted. The petitioner even admitted to have made extrapolation by writing high cost and cost is too high which does not constitute any offence. It is further argued that the instant FIR has been lodged, inspite of the fact that Vigilance Inquiry is being done but ignoring the same, the Chairman JSEB has directed to conduct an internal enquiry and lodged the FIR. The findings recorded by the Inspector General (Vigilance) JSEB are nothing but conjecture and surmises as well as the distribution of work to more than one tenders was a different matter altogether as the same relates to timely completion of work and the petitioner had raised the issues regarding the high cost in a meeting of Hon'ble the Chief Minister, Chief Secretary, Energy Minister, Energy Secretary and Chairman of the Board. The Chairman was agreed to allot packages B and C on the suggestion of the Chief Engineer (Stores and Purchase) and Member (Technical) on 12-8-2002. Again on 27-8-2002, the Chairman changed his mind and ordered for all the four packages, A, B, C and D and endorsed the file directly to the Chief Engineer (Stores and Purchase), who in turn on 27-8-2002 itself issued the draft of letter. Thus, from the allegations, as made out in the FIR, no offence is made out and, therefore, the entire FIR is fit to be quashed.
The learned Counsel for the petitioner also relied upon the cases reported in the State of Haryana v. Choudhary Bhajan Lal and Ors., (AIR 1992 SC page 604), Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors., (1998 (5) SCC 749), Rupan Deol Bajaj and Anr. v. Kanwar Pal Singh, Gill and Anr., (1995 (6) SCC 194), G. Sagar Suri v. State of U.P. and Ors., (2000 (2) SCC 636), Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., (1983 (1) SCC page 1), Satish Mehra v. Delhi Administration and Anr., (1996 (9) SCC 766 and State of Bihar and Anr. v. P.P. Sharma and Anr., (1992 (Suppl) 1 SCC 222).
5. On the other hand, Mr. Ram Balak Mahto, Sr. Advocate, appearing on behalf of the respondent No. 2 submitted that the FIR has rightly been lodged as there is a specific allegations against the petitioner for adding in his note as high cost and cost is too high, which is afterthought and at a belated stage in order to put the Board in great loss. It is also submitted that admittedly the petitioner has made the extrapolation over his note dated 29-6-2002 and the said extrapolation has been made after 29-6-2002 which will be evident manifestly from Annexures-1 and 2 of the FIR itself. It is further argued that Inquiry Report dated 21-12-2002 has been submitted by the Inspector General (Vigilance) JSEB in detail, on the basis of which FIR has been lodged as well as the entire matter is already under investigation and, therefore, the submission made by the petitioner has got no leg to stand, at this initial stage, as the whole matter would be looked into/scrutinized throughtly by the independent authority and as such the FIR has rightly been lodged in the matter. It is further argued that allegations as made in the FIR, prima facie, constitute the offence as well as there is no allegations from the side of the petitioner about the mala fide on the part of the Investigating Officer and even if there is dispute with the Chairman, JSEB that would not help in any way to the petitioner for getting the entire FIR thrown away, as the matter is still under investigation. Thus, the writ petition is fit to be dismissed.
The learned Senior Counsel also put his reliance on the case of State of Haryana v. Choudhary Bhajan Lal (Supra).
6. Mr. Manjul Prasad, learned Government Pleader, appearing on behalf of the Respondent No. 1 (State of Jharkhand) submitted that the matter is being inquired into as to whether the construction cost is more or less regarding construction of 52 Electrical Sub-Stations, which is also at preliminary stage.
7. Apparently, the Inspector General (Vigilance) inquired into the matter and submitted his Inquiry Report in detail in respect of the alleged extrapolation in the File No. MT/112 regarding NIT-185/01/Construction of 33/11 KV Power Station and it was found that the word 'high cost' and 'cost is too high' having added subsequent to 29-6-2002 in the bottom of note submitted by the petitioner and the said remarks are indeed in his own handwriting, which will be evident from Annexures-1 and Annexures-2 of the FIR itself. On the basis of the said report of Vigilance, the FIR was lodged and there is a specific allegations in the FIR that the petitioner never gave any comment in his note dated 26-8-2002 as regards to the financial position but he added high cost and cost is too high in his note already submitted on 29-6-2002 by putting those comment after though as in the original note dated 29-6-2002 (Annexure-1) there was no such comment as regards to high cost or cost is too high. There are also specific allegations that because of such comment made after though resulting heavy loss of finance to Jharkhand State Electricity Board, Ranchi and the said comments were made for his own benefit.
8. From the Inquiry Report, it appears that Inspector General (Vigilace) found that the said extrapolation was committed by the petitioner with full knowledge of its consequence and was not unintentional and the consequence are certainly a far reaching and that matter is stilt at the initial stage of investigation.
9. It is well-settled that the power of quashing at the initial stage of investigation is to be exercised in the rarest of rare cases to prevent miscarriage of justice. At the stage of investigation, this Court is to be reluctant in interfering the investigation, which shall be conducted independently, when there is no specific allegations about any bias attitude or mala fide intention on the part of the Investigating Officer. The investigation in the matter must be done independently without being influenced from any corner for concluding/reaching to a logical conclusion by the Investigating Officer. It is true that the First Information Report can be thrown away at the threshould to secure the ends of justice and also to prevent abuse of process only if the allegations made in the FIR, even if taken at their face value and accepted in their entirety do not prima facie constitute any offence. But, in the instant case, as discussed above, the allegations as made, in my view, prima facie constitute the offence and the said FIR was lodged after due inquiry made by the Vigilance. However, it is made clear that the matter is still under investination so the correct and final conclusion will only come out when the investigation reaches to a logical conclusion. The entire matters are to be scrutinized carefully, in accordance with law.
10. It has been much stressed on behalf of the petitioner about the mala fide intention for instituting the FIR, but it is also settled that the mala fide would not be primarily importance, rather it would be secondary importance, when an information is lodged at the police station and the entire matter including such mala fide intention is under investigation. The allegations of ma/a fide are of no consequence and cannot by itself by the basis for quashing the proceeding at the initial stage. It is also settled that the Court should refrain from interfering with the investigation, at primary stage, as they may derail and demolish the investigation. If on the basis of allegations, a prima facie case is made out then this Court should not interfere with the investigation at the intital stage. Moreover, this Court is not justified in judging the probabilities, reliability and genuieness of the allegations made in the FIR at the very preliminary stage.
11. The facts of the cases relied upon by the learned Counsel appearing on behalf of the petitioner are quite distinguishable from the facts of the instant case. I the case of Pepsi Food Ltd. (supra), a complaint was filed on the basis of which after due enquiry under Section 202 Cr. P.C. sumons were issued against the accused persons, against which the order summoning the accused was under challenge. Likewise, in the case of State of Bihar v. P.P. Sharma (supra), the fact was quite different, as in that case FIR was lodged, investigation was completed and after completion of the investigation, charge-sheet was already submitted, the matter was pending for order on the point of taking cognizance after hearing both sides on different dates. In the meanwhile, the matter went to the High Court. In the said case, the Apex Court held as under:
'Undoubtedly, the arms of High Court are long enough, when it exercises its prerogative discretionary power under Article 226 of the Constitution of India, to reach injustice wherever it is found in the judicial or quasi-judicial process of any Court or tribunal or authority with its jurisdiction. But, it is headged with self-imposed limitations. When and under what circumstances would a High Court be justified to quash the charge-sheet even before cognizace of the offence was taken by the Criminal Court is the cruicial question, in particular on mala fides of the complaint or Investigating Officer and on merits'.
In G. Sagar Suri's case (supra), after lodging FIR the investigation was completed and the police submitted charge-sheet in the Court Chief Judicial Magistrate against four persons. Likewise, in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi/(supra) a complaint case was filed and after finding prima facie the Metropolitan Magistrate issued summon against the accused-persons, against which the petition under Section 482 Cr. P.C. was filed. In the case of Satisth Mehra (Supra), also the FIR was lodged and after completion of investigation, charge-sheet was submitted and the case was also committed to the Court of Sessions. Likewise, the facts of the case of Rupan Deol Bajaj are also quite different to the instant case. After finding prima facie, the Apex Court directed the Chief Judicial Magistrate to take cognizance in the matter and proceed with the case, in accordance with law.
12. In the instant case, it is clear that no investigation has yet been reached to its conclusion, rather it is at very initial stage. It is also settled that the function of judiciary and the police are complimentary, not over-lapping. It is also settled in the case of State of Maharashtra and Ors. v. Ishwar Piraji Kalpatri and Ors., (1996 (1) SCC 542) that if the complaint, which is made, is correct and an offence had been committed which will have to be established in a Court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala findes. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But, the mere fact that the complainant is guilty of mala fides would be no ground for quashing the prosecution. It has further been held that at the stage of quashing a First Information Report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability of genuineness of the allegations made therein.
13. In the present case, FIR has been lodged and the investigation is continuing in the matter to go through the entire aspect minutely and independently and as such, in my view, at this stage, this Court should not go into or interfere in the matter.
14. In the above backdrops, considering the entire matters coupled with the materials available on the records, I find that there is no merit in this application, at this stage. Accordingly, the application is dismissed.