BIR BAHADUR SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application has been filed for quashing of the entire criminal proceeding of Special Case No.30 of 2003 (Vigilance P.S. case no.20 of 1993) including the order dated 16.11.2011 whereby and whereunder cognizance of the offences punishable under Sections 109, 120(B), 201, 409, 420, 467, 468, 471, 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been taken against the petitioner.

(2.) In the year 1985, a notice inviting tender was issued by the then Chief Engineer for construction of a canal stretching from 4.56 to 6.03 K.M. part of the Icha Right Main Canal. Upon an execution of an agreement in between the then Executive Engineer and one of the partners of M/s. Ajanta Construction Company, Patna on 18.3.1985, work order was issued to M/s. Ajanta Construction Company. The work got started on 18.3.1985. During which Nawal Kishore Singh and Kamta Prasad Sinha were posted as Executive Engineer and Sub-divisional Officer (Assistant Engineer) respectively in Kharkai Canal Division, Chaibasa. During excavation, as per the case of the petitioner, soft rock was found which cannot be excavated without blasting and therefore, the then Executive Engineer, Superintending Engineer as well as Chief Engineer visited the site in April,1986 and permitted to go for excavation of soft rock with blasting and this item, according to them, should be treated under the extra item of the agreement. Accordingly, work was done and it was done at the time whenpetitioner's predecessor, namely, Kamta Prasad Sinha was posted as Subdivisional Officer but at the time payment under the said head 'soft rock with blasting' was not made for the reason that schedule rate of payment had not been prescribed by that time. However, as per case of the petitioner, payment for the said work, mentioned in the M.B. book, was made at the rate subsequently prescribed. While the work was in progress, a complaint was filed by Awadhesh Kumar Singh, the then Junior Engineer, Kharkai Canal Division, Chaibasa against the then Executive Engineer and Assistant Engineer and not against this petitioner with respect to their indulgences in corrupt practices particularly in the matter relating to excavation of soft rock with blasting. On receiving the complaint, Government of Bihar constituted a Flying Squad for making enquiry over the allegation. On holding enquiry, a report was submitted to the Superintending Engineer wherein it was reported that gross irregularities have been committed in making payment towards soft rock with blasting. That report was forwarded to the Secretary, Water Resources Department. Thereupon notices were issued to this petitioner as well as one Assistant Engineer, four Junior Engineers and two Research Officers for showing cause as to under what circumstances excess payment of a sum of Rs.2.45 crores have been made to the contractor towards soft rock with blasting as well as disposal of the same. Show cause was filed by the petitioner stating therein that blasting was started prior to joining of the petitioner but at the time payments were not made since the rates were not approved and that he had no role to play in the matter of rate fixation and classification of rocks and payments thereof to the contractor. Thereupon Fact Finding Committee consisting of three members was constituted to verify as to whether in the said project payments of Rs.2.45 crores have been made showing soft rock with blasting though in fact the said work had never been undertaken. Thereupon, according to the case of the petitioner, the committee could not come to a definite conclusion as to whether excavation was performed either by soft rock with blasting or by manually. In spite of that, petitioner was charged by the Department to have made recommendation for payment of Rs.1.82 crores covered under 28th to 29th 2account bills, though no such work had been undertaken. Thereafter the petitioner was suspended on the charge of being instrumental in making payments showing excavation of soft rock with blasting in place of ordinary rock and further for making payment towards extra lead of soil. While the petitioner was under suspension, an FIR was lodged against the petitioner and others putting the same allegation, upon which petitioner had been suspended that the petitioner and other accused persons were instrumental in making payment by showing excavation of soft rock with blasting in place of ordinary rock and also towards extra lead of soil.

(3.) On such allegation, FIR was lodged as Vigilance P.S. case no.20 of 1993 under Sections 109, 120B,201, 409, 420, 467, 468, 471,477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act on 10.7.1993.