Crl.Rc.No.368 of 2008. Case: V. K. Agnihotri Vs Special CBI:ACB, Chennai. High Court of Madras (India)
| Case Number | Crl.Rc.No.368 of 2008 |
| Counsel | K. Alagirisamy, Sudharshana Sunder, N. Chandrasekaran |
| Judges | G. Rajasuria, J. |
| Issue | Indian Penal Code, 1860 - Sections 34, 120-B, 304, 420, 467, 468, 471; Prevention of Corruption Act, 1988 - Sections 13(2), 13(1)(d), 19; Code of Criminal Procedure, 1973 (as amended by Act No.25 of 2005 & Act No.2 of 2006) - Sections 197, 227, 239, 288, 319, 397, 401, 482; Indian Evidence Act, 1872 - Section 105 |
| Judgement Date | August 04, 2009 |
| Court | High Court of Madras (India) |
Judgment:
G. Rajasuria, J.
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Animadverting upon the order dated 27.12.2007 passed by the learned Principal Special Judge for CBI Cases, Chennai in C.M.P.No.27 of 2004 in C.C.No.50 of 2004, this criminal revision petition is focussed.
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Compendiously and concisely, the relevant facts, which are absolutely necessary and germane for the disposal of this Criminal Revision petition would run thus:
(i) The Deputy Superintendent of Police/SPE/CBI/ACB/Chennai laid the police report as against the following accused, viz., V.K.Agnihotri, N.Krithivasan, R.S.Narayanan, Sethuraman, P.Rajamoni, S.Ramasubramanian and S.Palani for the offences under Sections 120-B r/w 420, 467, 468, 467 r/w 471, 468 r/w 471 Indian Penal Code, 1860 and Section 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 and substantive offences under Sections 420, 467, 468, 471 Indian Penal Code, 1860 and Section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988.
(ii) A1, viz., Agnihotri, the revision petitioner herein filed Crl.M.P.No.72 of 2004 before the learned Principal Judge for CBI Cases under Section 239 of the Code of Criminal Procedure, 1973 for discharging him from the case.
(iii) Objection was filed on the prosecution side.
(iv) After hearing both sides, the learned Judge dismissed the said application holding that there are materials available for framing charges as against the petitioner/A1 for the offences referred to as against him in the charge sheet filed by the police.
(v) Inveighing such order dated 27.12.2007, passed by the learned Judge, this revision is focussed on various grounds, the gist and kernel of them would run thus:
(a) No sanction for prosecution as contemplated under Section 197 of the Code of Criminal Procedure, 1973 was obtained by the police.
(b) The lower court failed to note the role of the General Manager in the Railways regarding granting of machinery advance as the General Manager (A1) is expected only to scrutinize the reports and recommendations of the Technical Committee/ Tender Committee and pass orders.
(c) Out of the 7 Reaches, Reach I, II and III were awarded to A7 Palani on the basis of the lowest tenders offered by him.
(d) The lower court failed to see that the seventh accused (A7) at the time of submitting his tender had requested for sanction of machinery advance of 10% of the contract value and the same was not rejected by the Tender Committee.
(e) While conveying the acceptance, the tender committee informed the seventh accused (A7) Palani that the machinery advance would be sanctioned, if approved by the competent authority.
(f) A1, performed his work within his jurisdiction and discretion and he had no role in the alleged conspiracy.
(g) Even though there was no material to frame charge as against the revision petitioner/A1, the lower court dismissed the Crl.M.P.
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Heard both sides.
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The points for consideration are as to:-
(i) Whether the lower court without considering the materials on record and analysing the facts available in accordance with law, simply dismissed the Crl.M.P., even though there are no materials to frame charges as against the revision petitioner/A1?
(ii) Whether the prosecution is bad for want of sanction under Section 197 of the Code of Criminal Procedure, 1973?
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At this juncture, I would like to point out that the learned Special Public Prosecutor for CBI cases filed a memo highlighting that after the dismissal of the said Crl.M.P., charges were framed as against A1 to A7 and that as against A1, the revision petitioner herein, charge of conspiracy was framed to the effect that A1 to A7 have committed the offence punishable under sections 120-B r/w 420, 467, 468 Indian Penal Code, 1860 and one other charge also was framed as against A1 to A4 and A6 to the effect that they have committed offence punishable under Sections 13(2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988; whereupon trial also commenced and P.Ws.1 and 2 were examined and cross examined by the some of the accused persons. However, A1 has not cross examined the witnesses so far. As such, highlighting the development and progress in the case, the learned Special Public Prosecutor for CBI cases would submit that as per the well established practice, once trial has commenced, the revision filed as against the order of dismissing the application under Section 239 of Code of Criminal Procedure, 1973 has to be dismissed.
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However, the learned Senior counsel appearing for the revision petitioner would submit that at the earliest point of time, soon after the dismissal of the said Crl.MP, A1/the revision petitioner approached this court with this revision and inasmuch as there was no stay, for no fault of the revision petitioner, the trial commenced. It is also the contention of the learned senior counsel for the revision petitioner that he has been ready all along but there was no fault on his part.
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Be that as it may, now then the learned senior counsel appearing for the revision petitioner has expressed his desire to argue.
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I am of the considered opinion that this Court has to hear him and the Special Public Prosecutor for CBI cases pass orders on merits.
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The learned senior counsel for the revision petitioner has argued thus:
The revision petitioner, being the General Manager, acted within his jurisdiction and in fact, the procedure in the Railways enabled him to act as he did in this case. Simply because, he reviewed his earlier decision, no mala fide intention could be imputed on him. Granting of machinery advance is well within the powers of the General Manager and that too after, getting the report from the technical committee he reviewed his decision. Earlier there was no positive response to the Tender Notification regarding Reach IV is concerned and hence, limited tender was called for and in that A7 Palani, an approved contractor having no black mark earlier, applied for the same and his tender was accepted. Inasmuch as, he came forward to supply machine crushed ballast instead of hand broken ballast, for the same rate, whereupon machinery advance was sanctioned and accordingly, it was granted. Absolutely, there is nothing wrong in the procedure adopted by A1. Granting machinery advance is within the scope of the procedures contemplated under the Railways and in the public interest alone A1 exercised his discretion.
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Whereas the learned Special Public Prosecutor for CBI cases, by way of torpedoing and pulverising the argument as put forth on the side of the revision petitioner would set forth and put forth his argument that absolutely, there is no justification for interfering with the dismissal order of the lower court, as ex facie and prima facie, it is clear that even though in the tender condition, there is no scope for giving machinery advance, the Railway administration granted machinery advance and thereby unambiguously the accused exposed their intention to cheat the Railways.
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The learned Special Public Prosecutor also cited precedents in order to buttress and fortify his stand that at the time of framing charges, the question of acquittal or conviction should not loom large in the mind of the court, but the court based on prima facie material should frame charges.
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The learned Special Public Prosecutor, would cite the following decisions of the Hon'ble Apex Court.
(i) 2000 Supreme Court Cases (Cri) 311 (State of Madhya Pradesh vs. S.B.Johari and others). An excerpt from it would run thus:
6. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether the accused are guilty or not. It was done without considering the allegations of conspiracy relating to the charge under Section 120-B. In most of the cases, it is only from the available circumstantial evidence...
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