Vivekanand Choudhary Vs. The State of Jharkhand Through Vigilance Bureau Ranchi - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.112 of 2014 Vivekanand Choudhary, son of late Yamuna Choudhary, resident of Burdwan Compound, P.O. & P.S. Lalpur, Dist Ranchi .................…....... .... …..Petitioner VERSUS State of Jharkhand through Vigilance Bureau,Ranchi.... Opposite Party CORAM: HON'BLE MR. JUSTICE R. R. PRASAD For the Petitioner : M/s. Chittaranjan Sinha, Sr. Advocate and Pandey Neeraj Rai, Advocate For the Vigilance :Mr. Shailesh, Advocate 18/ 06.2.15. I.A.No.5719 of 2014 Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance on the interlocutory application bearing no.5719 of 2014 wherein prayer has been made to quash the order dated 16.9.2014 whereby charges have been framed against the petitioner under Section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act. Learned counsel appearing for the petitioner submits that this application has been filed wherein prayer has been made to quash the entire criminal proceeding of Vigilance P.S. Case no.21 of 2013 including the order taking cognizance. While the matter was pending before this Court, charge was framed and now by way of interlocutory application, the order framing charge has been sought to be quashed and therefore, the prayer made in the interlocutory application be allowed. In view of the facts and circumstances stated above, the prayer made in the interlocutory application is hereby allowed. Let the interlocutory application form part of the main application. Cr.M.P. No.112 of 2014 Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance. Initially this application was filed for quashing of the entire criminal proceeding of Vigilance P.S. Case no.21 of 2013 including the order taking cognizance of the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. While the matter was pending even the charge was framed vide order dated 16.9.2014 which has been challenged to be bad by virtue of the interlocutory application bearing no.5719 of 2014. According to learned counsel appearing for the petitioner, it is the case of the Vigilance that the petitioner, while holding the post of Junior Engineer, has amassed property disproportionate to his known source of income to the extent of Rs.4.80 crore. On such allegation, F.I.R was lodged. However, during investigation the value of the property which was taken to be disproportionate to the known source of income was assessed as Rs.2.67 crore and accordingly, charge sheet was submitted. On submission of the charge sheet when cognizance of the offence as aforesaid was taken, the said order as well as entire criminal proceeding was challenged before this Court. While the matter was pending before this Court, charge was framed on 16.9.2014 though on that day, objection had been raised that the matter is pending before the High Court but the court without hearing learned counsel appearing for the petitioner passed an order recording therein that on perusal of the record, prima facie case is made out under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act which order is also under challenge. Further it was submitted that out of 2.67 crore, Rs.2.2 crore was the amount which was found deposited in the official account of the petitioner in which transactions were to be made in connection with the official work still it has been taken as disproportionate income of the petitioner. It was further submitted that the petitioner had purchased a property worth Rs.4 lac and odd but its valuation has been assessed as Rs.23 lacs likewise for other properties valuation has been enhanced and thereby if an opportunity is given to the petitioner, the petitioner may demonstrate that not a single farthing is there which can be taken to be disproportionate to known source of income of the petitioner and therefore, in the facts and circumstances, it is a fit case which be remanded back to the court concerned after setting aside the order framing charge so that the petitioner may agitate this issue before the court concerned by filing discharge petition. This prayer was strongly opposed by the learned counsel appearing for the Vigilance by submitting that it is not that the petitioner had not been given any opportunity to place his case at the time of framing charge, rather several adjournments were granted for bringing stay order but the petitioner failed to bring any stay order and only in that event, after granting several adjournments the court passed an order relating to framing of the charge. Further it was submitted that even on the day when the charge was framed, an opportunity was given to the counsel appearing for the petitioner to place his case but the counsel appearing for the petitioner did not place the matter and in that event, charge was framed and therefore, the order framing charge never warrants to be interfered with. Further learned counsel has referred to a decision rendered in a case of State of Madhya Pradesh vs. Awadh Kishore Gupta and others [(2004) 1 SCC691 to place his point that the High court in exercise of power under Section 482 of the Code of Criminal Procedure cannot look to the defence of the accused at this stage when the order framing charge has been challenged. It be stated that I am not going into the merit of the case. However, the claim which has been put forth on behalf of the petitioner is that there has been reasonable explanation to establish that the assets which have been taken to be disproportionate to the known source of income in fact is proportionate to the income of the petitioner but the petitioner failed to place it before the court below by filing discharge petition for the reason that the matter was pending before this Court, though as per the counsel appearing for the Vigilance, number of opportunities were given for bringing stay order but the petitioner failed to obtain stay order and in that event, the court proceeded with the matter and framed the charge but the facts and circumstances placed before me sufficiently justify that an opportunity be given to the petitioner to raise the issue before the trial court by filing discharge petition so that the court may pass order on it in accordance with law. In such situation, order framing charge is hereby set aside. Accordingly, this application is disposed of. Let a copy of this order be communicated to the court concerned through FAX at the cost of the petitioner. ( R.R.Prasad, J.) ND/