Pramod Wankhede & Anr. vs The State Of Maharashtra & Ors.

(PER : NANDESH S. DESHPANDE, J.)

Heard.

ADMIT. Heard finally by the consent of learned counsel for the parties.

This is an application seeking quashing of First Information Report No.783/2017 dated 02.11.2017 registered at the behest of non-applicant Nos.2 and 3 against the applicants for the offences punishable under Section 13(1)(c) and 13(2) of the Prevention of Corruption Act, 1988 read with Sections 420, 467, 468 and 471 along with Section 34 of the Indian Penal Code (for short, ‘I.P.C.’).

The facts as stated in the application are as under:-A Division Bench of this Court in Criminal Writ Petition No.664/2015 vide judgment dated 04.04.2017 in paragraph 14 thereof observed as under:-

Pursuant to this observation by the Division Bench of this Court, the non-applicant No.2 filed First Information Report in question for the offences punishable under the above sections against the applicants. The applicant No.1 in the present matter was at the relevant time serving as Chief Officer, Municipal Council, Karanja (Lad) District Washim while applicant No.2 was In-charge Health Inspector and also Head of the Health Department, Municipal Council, Warud. The said First Information Report lodged against the applicants stated that the applicants have misused their position as public servant and have involved themselves in offences of corruption as punishable under the provisions of the Prevention of Corruption Act, 1988. The First Information Report further states that the applicants have intentionally and without verifying the documents of tender submitted by the Contractors for purchase of fogging machine have violated clause 22.3 of Standing Order No.36 issued by the State of Maharashtra. First Information Report further states that even though the contractors in question were technically not qualified, the applicants, as a part of the tender Committee have opened the technical bids and then financial bids making the contractors eligible. In nutshell, the allegation in the First Information Report is the applicants as public servants have misused their position and have thus, committed offences under the said sections. It is this First Information Report which is challenged in the present application on various grounds.

We have heard Mr. S.P. Bhandarkar, learned counsel for the applicants as also Mr. Nikhil Joshi, learned APP for the State.

Learned counsel for the applicants after taking us through the voluminous record of the matter submits that the First Information Report in question is nothing but an abuse of process of law and non-applicant No.2 has donned himself the role of crusader without their being any express direction by the Division Bench of this Hon’ble Court in that regard in the earlier writ petition. He further submits that there is no sanction to prosecute the applicants as contemplated under Section 17 of the Prevention of Corruption Act, 1988 and on that ground also the entire proceedings are vitiated. It is his further submission that non-applicant No.2 i.e. First informant lodging the said First Information Report is not an authorized officer as required under Section 19 of the Act and therefore, the proceedings against the applicants cannot be continued. He also submits that even on merits Section 13(1)(c) and 13(2) cannot be attracted as necessary ingredients for making out of the said offences are not made out after reading of the First Information Report and charge-sheet. He therefore prays for allowing the application thereby quashing the First Information Report and the consequent charge-sheet.

Per contra learned APP submits that meaningful reading of the First Information Report and the material collected during the investigation prima-facie indicts the applicants. He further submits that pursuant to order of this Court in Writ Petition No.664/2015, non-applicant No.2 through the Deputy Superintendent of Police Anti Corruption Bureau, Amravati conducted open inquiry in the allegations of financial scam, irregularities and misappropriation of public funds committed by the applicants in purchasing the fogging machines and five Hydrolic Auto rickshaw for Municipal Council, Warud. Accordingly, the Investigating Officer submitted his final report to the higher authorities wherein it was found that there is ample evidence about irregularities committed by the applicants. He further submits that on receipt of permission from the Director General Anti Corruption, Maharashtra State, Mumbai for registering the offences, the First Information Report was lodged. He therefore, states that there is enough material to proceed against the applicants and according to him this would not be a fit case for this Court to exercise inherent jurisdiction.

In the backdrop of this facts we have perused the First Information Report in question as also the charge-sheet and other material filed by the non-applicants. Section 13(1)(c) reads as under:- and 13(2).

Thus, a meaningful reading of provisions of Section 13(1)(c) would reveal that the section contemplates dishonest or fraudulent misappropriation or otherwise conversion for own use of any property entrusted to him i.e. public servant or under his control. It is a matter of record that the only allegation against the present applicants is that they have violated clause 22.3 of the Standing Order No.36 which spells out modality for floating and other ancillary process of tender for the Municipal Councils in the State of Maharashtra. Said Clause speaks about the functions of the Tender Committee and subclause (3) specifically speaks about verification of the document in the technical bid and to select an eligible contractor. Thus, it is the case of the prosecution that this sub clause has been violated. However, what is conspicuous by its quoted supra. There is no mention regarding any dishonest or fraudulent misappropriation or otherwise conversion for once own used any property entrusted to him or under his control as a public servant. This, in our view, is fatal for the case of prosecution. In other words, only allegation against the present applicants is that in spite of some contractors being uneligible for participating and subsequently being awarded the tender for work in question, they were awarded same. However, what is absent is the active role of the applicants and the mens rea required to attract criminal liability and more particularly section 13(1)(c) as stated above.

The next ground raised by the counsel for the applicants is regarding bar under Section 17 of the Prevention of Corruption Act, 1988 which speaks about persons authorized to investigate the offence under the Prevention of Corruption Act,1988. However, as can be seen from the First Information Report in question, the same has been lodged by Mr. R.P. Mule, who is a Deputy Superintendent of Police and therefore, in our view, this objection raised by the learned counsel for the applicants is without any merit.

The next objection is regarding absence of sanction. It is true that during the lodging of First Information Report and subsequently there was no sanction. However, after perusal of the charge-sheet in question, we find that sanction has been awarded for prosecuting the applicants by the State of Maharashtra on 27.10.2023. Thus, this objection also is without any merit and liable to be rejected.

However, as stated supra the necessary ingredients for constituting the offence punishable under Section 13(1)(c) are not made out against the accused persons even on cursory reading of the First Information Report and consequent charge-sheet filed on record. We are therefore, of the considered opinion that the case would squarely fall within parameters laid down in the case of of State of Haryana and others vs. Bhajanlal and others reported in 1992 Supp(1) Supreme Court Cases 335, where it is stated as under:-

As far as offences under Sections 420, 467 and 468 of the IPC are concerned, there is no intention to deceive at the inception which is a sine qua non for attracting the offence under Section 420 of the IPC. Further more, it is not even the prosecution case that the applicants herein have forged the documents for attracting offences under Sections 467, 468 and 471 of the IPC. Thus, in our view, the offences are also not made out.

The criminal application stands disposed of.

Rule accordingly.

Pending application, if any, also stands disposed of.