Sheema Ali Khan, J.
1. Heard learned Counsel for the petitioner and the counsel representing the Central Bureau of Investigation.
2. In this case, the petitioner at the relevant time was the Engineer-in-Chief when the bitumen scam came to light. He has moved this Court for quashing the order, dated 26.8.2008 passed by learned Special Judge, Central Bureau of Investigation, North Bihar, Patna in Special Case No. 17/1997 whereby his application for discharge under Section 239 of the Code of Criminal Procedure for the offences alleged to have been committed under Sections 120B, 420, 467, 471, 477A and 411 of the Penal Code and Section 13(2) read with (1)(d) of the Prevention of Corruption Act.
3. Vide Annexure 3, charge sheet was submitted and the petitioner was sent up for trial in the aforesaid case. The allegations in the F.I.R. are that the petitioner along with others mentioned at para 2 of the charge sheet are said to have entered into a criminal conspiracy to do illegal acts or legal acts by illegal means, cheating and misappropriating the bulk bitumen meant for construction of roads by the Road Construction Department. It has further been alleged in the charge sheet that the petitioner, the then Engineer-in-chief in pursuance of the aforesaid criminal conspiracy deliberately did not object to the supply order in favour of Supaul division which was allotted to M/s. Cosmo Transport Company. On the basis of the aforesaid allegations, the petitioner is facing trial.
4. Mr. Chitaranjan Sinha, learned Senior Advocate appearing on behalf of the petitioner submitted that there is not a single line to substantiate the allegations that the petitioner had taken any illegal gratification although it has been specifically stated in the charge sheet itself the instances of illegal gratification paid to other accused persons. Apart from the allegation of illegal gratification, it is also submitted that the charge sheet does not in fact reveal that the petitioner was part of any conspiracy.
5. The allegations is that several officers and named accused persons of Road Construction Department have issued supply orders for bitumen to various transporters and the transporters in some cases have not supplied the bitumen and in some cases have supplied the bitumen much below the required amount. The district of Supaul was allotted to M/s. Cosmo Transport, Kolkata. It is alleged that the petitioner signed the supply order contained in Annexure 8 with respect to Supaul district. On the basis of the allegations the petitioner was made accused and sent up for trial.
6. Learned Counsel for the petitioner referring to allegations contained in the charge sheet has submitted that apart from one sentence at paragraph 2 of the charge sheet which reveals that the petitioner, the then Engineer-in-Chief in pursuance of the aforesaid criminal conspiracy deliberately did not object to the issuance of the supply order in favour of Supaul Division which was allotted to M/s. Cosmo Transporter, Kolkata there is no other material in the charge sheet to support the allegation. It is submitted that Annexure-8 which is the supply order of Supaul district does not contain the name of M/s. Cosmo Transport and as such it cannot be presumed that petitioner was in conspiracy with other co-accused persons, specially, Mr. Iliyas Hussain, the Minister of the department, while signing the said order of supply. To substantiate the claim, learned Counsel refers to Annexure 5 which is the charge sheet in R.C. 42(A)/1997-Patna also relating to the same offence i.e. Bituman scam.
7. It is submitted that in the said charge sheet it has specifically been stated at paragraph 2 that the petitioner objected to the suggestion of huge purchase of bitumen in view of the objections on withdrawal of funds placed by the Finance Department. At paragraph 3 it has been pointed that the Minister Incharge over ruled the objection. Again the charge sheet indicates that the petitioner had objected to the name of M/s. Janardan Prasad Agrawal, one of the transporter which was over ruled by the Minister of the department and in fact the petitioner was not made accused in R.C. 42(A)/1997-Patna. It is further submitted that the petitioner had lodged a protest whenever he had knowledge that there is some anomaly being committed by the Department which goes to show that the element of conspiracy is lacking as far as the petitioner is concerned.
8. It is contended that the allegation in the charge sheet without referring to a single document except Annexure-8 cannot form the basis of holding the petitioner guilty of criminal conspiracy under Section 120B of the Indian Penal Code. Learned Counsel for the petitioner points out that the allegation with respect to receiving illegal gratification is mentioned at page 48 of the brief under the heading 'instances of illegal gratification'. Under the said heading, details have been given regarding receipt of illegal gratification by the Minister of the department, K.K. Kedia, Om Prakash Prasad, S.C. Tiwari and Smt. Shobha Sinha and some others.
9. There is some doubt in the mind of this Court regarding the allegations that the petitioner had received illegal gratification in view of the fact that the charge sheet does not disclose even one instance from which this Court may come to a prima facie conclusion regarding the factum of acceptance of illegal gratification. However, regarding the aspect of criminal conspiracy, in view of the fact that the petitioner had in fact signed the supply order for supply of bitumen for the district of Supaul, it cannot be said at this stage of the proceeding that the petitioner was not aware that M/s. Cosmo Transport against whom there was complaint of misappropriation on 19.8.1992 was not to the knowledge of the petitioner.
10. The argument that the charge sheet in R.C. Case No. 42(A) shows that the petitioner was not involved in the conspiracy with other co-accused does not help the petitioner as the allegation in this case is that the petitioner ought to have objected to the supply of Bitumen to Supaul district as he being the Engineer-in-chief ought to have been aware of the fact that there was an objection raised in the file that M/s Cosmos Transport was guilty of short supply of Bitumen.
11. Learned Counsel appearing on behalf of the Central Bureau of Investigation, on the other hand, relied on several decisions rendered by the Supreme Court wherein the Apex Court has held with respect to the allegations regarding Section 120B of the Indian Penal Code that the Court cannot embark upon an enquiry to find out whether the allegations contained in the First Information Report are true accounts of the occurrence at the stage of Section 227 of 228 of the Code of Criminal Procedure.
12. Reference may be made on the decision in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Ors. reported in : 1990 (4) SCC 76 wherein the Supreme Court has referred to a judgment in the case of Superintendent of Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja : (1979) 4 SCC 274 and held as follows:
The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.
13. The Apex Court has come to the conclusion that at the stage of Section 227 of 228 of the Code of Criminal Procedure, the Court is required to evaluate the material and documents on record with a view to finding the existence of all the ingredients constituting the alleged offence.
14. From the above discussions, it is obvious that this Court could not interfere with the order impugned.
15. There is another aspect of the matter. The trial of this case has commenced and one witness has been examined. It has been contended by earned Counsel for the petitioner that the witness who has been examined is a formal witness and he has only proved certain documents and as such this fact should not be held against the petitioner for the purpose of considering whether the petitioner was guilty of the offence mentioned aforesaid. However, this Court finds that once the trial has commenced and witness have been examined, would be an important circumstance in considering whether the court can interfere with the order rejecting the application under Section 239 of the Code of Criminal Procedure.
16. At this belated stage, the Court could not interfere except in a case where the facts are exceptional that this Court cannot ignore them as it would lead to miscarriage of justice.
17. For the reasons aforesaid, the quashing application is dismissed.