Raj Kumar Singh vs The State of Bihar

P.K. Deb, J.—Although several opportunities were given to the State for filing counter affidavit but until now no counter affidavit has been filed. On one occasion it was stated before this Court that instructions have already been received but on the next day again time was sought to the effect that no instructions are there and counter affidavit could not be prepared. In that way the State is just passing time. As per the earlier order passed I am not in a position to grant any further time to the State to file counter affidavit in view of the circumstances as already revealed in the order dated 29.8.2001. This petition has been filed for quashing the F.I.R., lodged bearing Town P.S. Case No. 447/2000 which is now in session of the Court of the Chief Judicial Magistrate, Vaishali at Hajipur. There seems to be a chequered history of the case. The petitioner is a retired Executive Engineer. At the relevant time against which the F.I.R, has been lodged, the petitioner was posted as the Executive Engineer, Drainage Division, Hajipur. A work was allotted to a Contractor by the Department concerned and regarding completion of the work by the Contractor, the petitioner being the Executive Engineer had issued a completion certificate but then the Department did not pay the dues of the Contractor and then the Contractor came up before this Court in C.W.J.C. No. 393 of 1994. Order was passed by this Court regarding payment to the Contractor and the basis was the certificate being issued by the petitioner as the Executive Engineer regarding completion of the contract work. Against that order passed in the above writ petition, the State of Bihar moved a Division Bench in LP.A. No. 38/1996 but that L.P.A. was also disposed of in favour of the Contractor upholding the order passed in the writ petition. Then the State of Bihar went to the Apex Court in SLP No. 2513/1997. After hearing both the parties, the Apex Court sent the matter for arbitration and a retired Judge of the Apex Court namely Hon''ble Mr. Justice R.M. Sahay was appointed as an Arbitrator. The issues before the Arbitrator were:-

(i) Whether the claimant completed the work as per the agreement between the parties within the stipulated time.

(ii) Whether the claimant is entitled to full amount of contract amount or part of it.

(iii) Whether the claimant is entitled to any interest, if so, from what date and at what rate?

(iv) Whether the respondent is entitled to counter-claim, if so, whether in full or in part?

(v) Whether the parties are entitled to any other relief?

The award was given by the Arbitrator which is contained in Annexure-4 and in that Award, it was specifically held by the Arbitrator that the Contractor had completed the work and the certificate issued by the petitioner was not a fake or a false one. After the Award being prepared in favour of the Contractor the same was filed before the Apex Court and vide Annexure-5 the said Award had been made Rule of the Court by the Apex Court. In that way practically the dispute between the State of Bihar and the Contractor had been finally settled by the Apex Court but then finding no other alternative to take action against the Contractor the State of Bihar has made an attempt of implicating the petitioner for issuance of false certificate. The F.I.R, was lodged against the petitioner who has retired by this time from the service. When it has been held by the Courts, as mentioned above, that the contractor has completed the work and he was entitled to full payment of contract work then in no case it can be said that the petitioner in his capacity as an Executive Engineer had issued false completion certificate in favour of the Contractor. When the whole matter of dispute has already been settled by the Court of law there remained no scope for the police to investigate into the matter again and perhaps for that reason, the State is not coming with the counter affidavit, as they have got nothing to say when the matter has been settled by the highest court of the land. If the F.I.R, is allowed to proceed to the harassment of the petitioner then the same will be nothing but an abuse of the process of the Court. I am aware of my limited jurisdiction regarding quashing of the F.I.R. which can only be considered in rarest of rare cases when the lodging of the F.I.R. itself shows non-bonafide and only for the purpose of harassment. It appears that the State of Bihar had fought against the Contractor upto the highest Court and when they lost before the Arbitrator also, they had made the claim that the work was not completed and the certificate issued by the Executive Engineer was the false certificate but the Arbitrator did not believe that story and held that the contract work was completed by the contractor. In that way, the certificate issued by the petitioner in the capacity as an Executive Engineer can in no way be held to be a false one. In that way this F.I.R, lodged is nothing but an abuse of the process of the court and also an unnecessary attempt from the side of the department to harass the petitioner. In that way this misc. case is hereby allowed and the F.I.R, lodged being Town PS Case No. 447 of 2000, now pending before the Chief Judicial Magistrate, Vaishali at Hajipur is hereby quashed.