Ajay Goel vs State Of U.P. And Another

Heard Sri Dilip Kumar, learned senior advocate assisted by Sri Rajarshi Gupta, learned counsel for the applicant and learned A.G.A. for the State.

This application under section 482 Cr.P.C. has been filed with the prayer to set-aside the order dated 29.06.2019 passed by Special Judge (Anti Corruption) / Additional Sessions Judge, Meerut in Case No.33 of 2007 (State Vs. Ajay Goel) arising out of case crime no.308 of 2000 under sections 406, 409, 419, 420, 423, 465, 467, 468, 471, 477-A, 120-B IPC and section 13 (1) D read with 13 (2) of the Prevention of Corruption Act, Police Station Rakab Ganj, District Agra whereby the application for discharge moved by the applicant was rejected.

Facts giving rise to the present case are that a contract was given to U.P. State Bridge Corporation Limited, Agra (in short the 'Corporation) for construction of bridge over the yamuna river on 13.12.1990 by the Public Works Department, Agra. In between the route of bridge, a structure of mughal period and a temple was situated. Due to obstruction made by the priest of the temple, work could not be completed within the prescribed period to which, the Corporation wrote a letter to the Executive Engineer, P.W.D. mentioning therein that work is getting effected due to hindrance created by the priest of the temple and thereby the Corporation is suffering financial loss. Corporation also sought for extension of time to complete the project. Since the project was already delayed, the District Magistrate wrote a letter to the Executive Engineer, P.W.D. directing him to ensure the construction of bridge. The Corporation vide letter dated 21.2.1994 demanded extra budget for completion of work from the Executive Engineer. Applicant, who was earlier posted in P.W.D., Hill Region (Uttrakhand), took charge as Assistant Engineer in P.W.D., Agra on 6.5.1995 and was given responsibility to complete the construction of bridge expeditiously due to his expertise in execution of these type of projects. Applicant visited the site on 15.5.1995 and on the same day, a proposal was forwarded by the applicant to the Executive Engineer. Considering the exigency in the matter, the proposal was approved and on the same day temple was removed from the site and thereafter project was completed.

Allegation is that a payment of Rs.39,701/- has been made for work done which, if conducted, in normal circumstances, the same would have completed with an expense of Rs.7289/-. Thus, an additional amount of Rs.32,412/- has been paid. Further, it has been alleged that as the approval could not have been given by the Executive Engineer and further the entire work had been completed within one day, as such, the entire work becomes doubtful. Further, several procedural lapses have been alleged.

Submission of learned counsel for the applicant is that work was executed in lieu of estimate prepared in the matter and approved by the Executive Engineer. It is next submitted that a bridge was to be constructed over yamuna river in Firozabad. There was a temple situated at the site where the bridge was to be constructed. The hermits and priest of the temple were creating hindrance, therefore, there was urgent need to demolish the temple in the night itself. In that emergent situation, exercising the power conferred in the Circular of the Deparment (P.W.D.) i.e. Annexure / Enclosure - 57 (Circular No.33 PW/50M-6/54 dated Lucknow Nov.-18, 1965), estimate was prepared, which was allowed by the Executive Engineer and in lieu thereof the temple was demolished. Amount was paid to the contractor for work done, as approved by the Executive Engineer. Applicant, who was posted as Assistant Engineer in the department concerned, has no concern with the present offence. Referring to the allegations levelled against the applicant as well as the ingredients of the offence levelled in the matter it is further submitted that none of the ingredients of the aforesaid offence are available in the present matter. Applicant moved discharge application before the trial court after obtaining bail, but the same was rejected on insufficient grounds. No prima facie case is made out against the applicant. At this stage, learned counsel for the applicant has referred to the supplementary affidavit filed in the matter and further argued that continuation of the proceedings of the aforesaid criminal case, on the strength of evidence collected during investigation, is an abuse of process of law. Thus, prayer was made to allow the application and quash the entire proceedings of the aforesaid criminal case against the applicant by setting aside the order passed by the court below on the discharge application moved by the applicant.

On the other hand, learned A.G.A. argued that although applicant, who was posted as Assistant Engineer in the concerned Department, had exercised the powers conferred in the Circular of the Deparment (P.W.D.) i.e. Annexure / Enclosure - 57 (Circular No.33 PW/50M-6/54 dated Lucknow Nov.-18, 1965), but a prima facie case is made out against the applicant to proceed with trial. There is no illegality, infirmity or perversity in the impugned order.

I have considered the rival contentions raised by learned counsel for the parties and have gone through the entire record.

As is evident from the record, applicant, during trial, moved discharge application, which has been rejected vide impugned order with the observation that a prima facie case is made out to proceed with trial. Before dealing with the submissions raised across the Bar as well as plea taken in the matter, I find it necessary to quote the Circular of concerned Department i.e. Annexure - 57 appended as S.A.-1 to the supplementary affidavit.

"???????? - 57 KARYALAYA MUKHYA ABHIYANTA UTTAR PRADESH SARVAJANIK NIRMAN VIBHAG Circular No.33 PW/50M-6/54 Dated Lucknow Nov-18, 1965 Sub. : Works to be given to contractor by negotiation or by selection.

The Government has approved the following procedure to be adopted in connection with the work to be given by negotiation or by selection. This circular supercedes all previous circulars on the subject if negotiation has to be done with the tenders the authority competent to accept the the tender may carry on such negotiations and may accept the tender AFTER FIXING THE POST OF THE WORK.

In Cases of selection the authority competent to accept the tender may OBTAIN THE APPROVAL OF THE NEXT HIGHER AUTHORITY FOR SUCH SELECTION provided that negotiations with tenders or selection of a contractor for wanting the work shall be reported to only when for one reasons or the other, it is not possible to invite fresh tender for the work. THE OFFICER CONCERNED SHALL INVARIABLY RECORD IN DETAIL THE REASON FOR NOT INVITING FRESH TENDER.

In order to provide second check. Even at a later stage. AUTHORITY CONCERNED ACCEPTING TENDER BY NEGOTIATION OF / OR AWARDING A CONTRACT BY SELECTION SHALL FURNISH TO THE NEXT HIGHER AUTHORITY QUARTERLY STATEMENT OF ALL SUCH CASES TO EXAMINE WHETHER A SANCTION TAKEN BY THE OFFICER CONCERNED WAS CORRECT."

There is no dispute between the parties that new yamuna bridge was to be constructed and for which the obstruction in the form of a temple and a structure of mughal period were to be demolished. Perusal of the record (annexure no.9 and 10 to the instant application) reveals that an information was given to this extent on part of the applicant to the Executive Engineer informing that construction work is withheld and is being delayed due to non-removal of the aforesaid old structure and the priest of the temple is creating hindrance. It was also informed that construction of bridge will be delayed and much time will be spent if proper procedure for inviting tender is followed. Thus request was made from the Executive Engineer for granting permission to select a contractor on the basis of bond by selection. It further appears that the request made by the Assistant Engineer was approved by the Executive Engineer and in lieu there of one contractor namely, Rajendra Prasad Gupta of the Department concerned was selected as per the norms of Government Circular to demolish / remove the aforesaid structure. It also appears that on the basis of permission granted by the Executive Engineer, the aforesaid obstructions were removed in one night itself. Allegation against the applicant is that excess amount has been paid to the contractor to the tune of Rs.39,701/- for the execution of work instead of estimation of Rs.7289/-. Submission of learned senior counsel appearing for the applicant is that the amount disclosed by the investigating agency for payment was applicable only in case of inviting of tender process. Since the construction of bridge was being delayed and there was exigency, therefore, exercising the power conferred in the aforementioned Circular (annexure SA-1 to the supplementary affidavit), contractor was selected on the basis of bond by selection and owing to this reason, excess amount was paid. If the essential ingredients to constitute a crime i.e. mens rea, intention, preparation and overt act (human conduct) etc. are taken into consideration in the light of the allegations levelled in the instant case and comparing the same with the submission of learned senior counsel appearing for the applicant, in the opinion of the Court, offences levelled against the applicant are not attracted in this case. Excess amount was paid only to remove the obstruction urgently for the reason disclosed in the letter submitted by the Assistant Engineer to the Executive Engineer itself. Trial Court, while rejecting the discharge application of the applicant, had observed that the Executive Engineer has referred the request made by the Assistant Engineer for obtaining technical report, but same was not obtained and Executive Engineer approved the request without ensuring the aforesaid report. If this fact is also taken into consideration, then also the applicant, who was posted as Assistant Engineer, made a request for removal of obstruction and the request was approved and allowed by the Executive Engineer looking to the exigencies in the matter and contractor was also selected in light of the Government policy, then on analysis of entire facts and circumstances of the case, the Court is of the opinion that finding arrived at by the trial court in the impugned order are not based on correct appreciation of facts and law. In the opinion of the Court, mens rea to attract the aforesaid offence are not available against the applicant. Applicant had executed the work in compliance of the directions given by the Executive Engineer and payment was also made to the contractor on the basis of estimate approved by the Executive Engineer. Thus, the prayer made in the application is liable to be allowed and the impugned order dated 29.06.2019 rejecting the discharge application of the applicant is also liable to be set-aside, as continuation of the proceedings of the aforesaid criminal case against the applicant is nothing but an abuse of process of law.

Accordingly, this application is allowed and the impugned order dated 29.06.2019 is set-aside. Discharge application moved by the applicant before the trial court is hereby allowed. Applicant is discharged from the offences levelled against him. Entire proceedings of the aforesaid criminal case against the applicant are hereby quashed.