MADHUSUDAN MUKHERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsels for the parties. The two petitioners seek quashing of the order dated 24-4-2007 passed by Special judge, Vigilance, Patna in Special Case Nos. 18/1992/21/2205 by which cognizance has been taken against them and others under sections 420, 477 (A) and 120 (B), I. P. C. and section 5 (2) read with Section 13 (1) (d) of the prevention of Corruption Act.

(2.) THE short facts leading up to the taking of cognizance in the present matter is that on the basis of the written report dated 15-2-1983 of the Assistant Secretary, Road construction Department, Government of bihar before the Officer-in-charge, Vigilance police Station, Patna irregularities were alleged to have been committed in the purchase of building materials in the Building division, Purnea under Public Works Department since March, 1980 to 1981. It was alleged that for the purchase of material an amount of Rs. 84 lacs was allotted by the chief Engineer and against the same the executive Engineer invited two tenders. The superintending Engineer and the Chief Engineer had approved Rs. 5,41,689/- and Rs. 4,80,050/- only but without making agreement against each of the said amounts as many as 65 and 105 agreements of Rs. 50,000/- each were made with M/s. Apna construction Society, Barh and Shashi bhushan Prasad Singh, Bhatgama, Barh and against the said agreements Rs. 32,34,825/- and Rs. 56,36,325/- were passed. The said persons were neither manufacturer nor stockist of the said articles and the articles were not such which were available with difficulty. It was further alleged that the articles in question were normally supplied by the contractor undertaking main construction or the contractor carrying out repair works but the said articles in the present case were purchased in such excessive quantity that they cannot be utilized in many years and are likely to be destroyed after a lapse of time and thus the funds have been misused. The further allegation is that the article had been purchased many times over the scheduled rate or the market rate and thus the articles worth Rs. 21. 80 lacs have been purchased at a price of Rs. 89. 72 lacs as a result of which Rs. 67. 92 lacs have been paid in excess. It is also alleged that the two advertisements were, as a matter of fact, not published in the newspapers rather the notice of the said advertisement were sent to a few contractors. For all the aforesaid allegations the executive Engineer, Shiv Mangal Singh was found to be responsible and accordingly it was requested to institute a case under Section 5 (1) (d)/5 (2) of the Prevention of Corruption Act and Section 420 of the I. P. C. against the said Executive Engineer. On the basis of the said written report Vigilance P. S. Case No. 1/83 dated 25-2-1983 was registered under the aforesaid Sections against sheo Mangal Singh, Executive Engineer, building Construction Department, P. W. D. , purnea. After investigation chargesheet No. 18 was submitted on 11-8-1994 against the aforesaid Sheo Mangal Singh, Executive engineer, Ravi Bhushan Prasad, Superintending Engineer, Dinanath Verma, Junior engineer and other clerical and Accounts staff of the Building Division, Purnea but not the petitioners.

(3.) BY letter No. 001 /83-3520 dated 4-8-93 of the office of Inspector General-cum-Special Secretary, Cabinet Vigilance Department, Investigation Bureau, Patna addressed to the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department for sanction for prosecution in the aforesaid case was sought against the petitioner, madhusudan Mukherjee and Shanker prasad Sahu as also three others. Both the petitioners were Junior Engineers at the relevant time. The Engineer-in-Chief-cum-Additional Secretary-cum-Special Secretary, cabinet Vigilance Department by his memo no. 2-037/94 dated 7-8-95 (Annexure-2)sent to Inspector General-cum-Special Secretary, Cabinet, Vigilance Department after referring to the provisions of the Bihar Financial Rules, Bihar Public Works Accounts code and Bihar Government Servants Conduct Rules, 1976 came to the conclusion that under the aforesaid provisions the Junior Engineers have no role to play either in the matter of approving the tender which power has been exclusively provided to the executive Engineer, Superintending Engineer, Chief Engineer or the concerned Works department on the basis of recommendation of the Tender Committee and further the only duty of the said Junior Engineers is to receive the building materials and to test, count and measure them and to enter the materials in the measurement book and also enter them in the stock register and to grant receipt, and on the orders of the Executive Engineer or Sub-Divisional Officer to issue the materials on indent forms. The junior Engineers are further required to send the monthly accounts of the materials in the stores to the Sub-Divisional Officer. It was thus concluded by the Engineer-in-Chief that the concerned Executive Engineer on the basis of the provisions of the Bihar government Servants Conduct Rules must have purchased the aforesaid materials on the basis of his best judgment and not that of Junior Engineers who are two stages lower in hierarchy than him. For the said reasons, it was held by him in the said letter that there was no justification for grant of sanction for prosecution against the said Junior engineers including these two petitioners.