TMI Blog2013 (2) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... er under the carpet. Therefore, through an intervention of this Court in Writ Petition No. 3611 (MB) of 2011 [P.I.L.] Sachchidanand (Sachchey) v. State of U.P. and others, connected with other matters, Central Bureau of Investigation (hereinafter referred to as 'the CBI') was directed to hold preliminary enquiry in the matter concerning implementation of the National Rural Health Mission (NRHM) in the State of Uttar Pradesh. Gross abuse and misappropriation of NRHM funds by the State functionaries in a planned and concerted manner was alleged in the petition filed before this Court. This Court in its order dated 15.11.2011 issued the following direction as under: We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date. It is directed that the inquiry be completed within fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipathi, A.K. Srivastava, Vipul Kumar Gupta, Babu Singh Kushwaha. It is also important to mention that in the charge-sheet RC 220-2012 E0001 and RC 220-2012 E0002 Girish Malik, Manvendra Chaddha, Ramesh Tandon, Abdul Mateen, S.B. Pandey, Masood Ul Hasan and M.K. Jain were initially arrayed as accused in the FIR have been named as witnesses by prosecution. It reveals from the charge-sheet that starting point of conspiracy was a hidden intention to award this contract to one M/s. Surgicon Medequip Private Ltd. (hereinafter referred to as the Company) for supplying the O.T. Modular fitted with Acs. It is in this process of awarding contract various acts of omission and commission have been detected by the CBI. 2. Allegations contained in the charge-sheet No. E220-2012 E0002 are that in the Project Implementation Plan (PIP) for the year 2009-2010 the work for up-gradation of 40 District Level Hospitals for a total sum of Rs. 160 crores was proposed and same was approved by Record of Proceedings dated 1.5.2009. Conspiracy was hatched by the accused Pradeep Shukla, IAS the then Principal Secretary, Health and Family Welfare, Government of UP and co-accused Devendra Mohan, the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Unit containing the endorsement made by S.K. Singh, the then G.M. (Admn), SPMU, NRHM, UP and marked to Dr. R.P. Yadav, the then GM(Construction), SPMU, NRHM. The said letter was handed over personally by accused Ravindra Rai to S.K. Singh and on the direction issued by accused Pradeep Shukla in its meeting on 8.8.2009 contract was allotted to the UPPCL. Meeting is alleged to have been attended by only Rajneesh Pandey and officiating Executive Engineer, office of DG, Family Welfare, Government of UP and R.R. Bharti, Director General, Family Welfare. No other committee member was found to be present in the meeting. Names of other executive members consisting of 17 persons are shown to have attended the meeting. Some other officials of NRHM and DG Family Welfare were shown to have attended the meeting. None of them was regular members of the Executive Committee. Members of the Executive Committee have shown ignorance about the said meeting. On 12.8.2009 out of the 19 members of the Executive Committee only four were shown to be present as per attendance sheet and out of those four members, Lalit Verma, IAS the then Secretary, Medical Health denied to have attended the said meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition. 7. Companies who are said to have participated in the tendering process namely M/s. Unicare India Private Ltd. Noida and M/s. Anod Pharma Pvt. Ltd, Kanpur and M/s. Surgicoin Medequip Pvt. Ltd. were managed by accused Naresh Grover. Accused Naresh Grover applied on behalf of M/s. Unicare India Private Ltd, Noida and M/s. Anod Pharma Pvt. Ltd, Kanpur without their knowledge and for which their papers were fraudulently obtained by him. On the basis of forged and bogus documents co accused Naresh Grover was able to get M/s. M/s Unicare India Private Ltd, Noida and M/s. Anod Pharma Pvt. Ltd, Kanpur empanelled with UPPCL with the connivance of the co accused Ravindra Rai and Devendra Mohan. The rates quoted by M/s. Unicare India Private Ltd, Noida and M/s. Anod Pharma Pvt. Ltd, Kanpur were shown on the higher side whereas the rates of the said M/s. Surgicoin Medequip Pvt. Ltd. were shown on lower side with intent to procure the said contract. The contract was allotted to M/s. Surgicoin Medequip Pvt. Ltd. at the rate of Rs. 45,16,560/- as cost of Modular OT and cost of Air Conditioning/Air Handling Unit as Rs. 28,90,200/-. Total value of the contract per one Modular OT Unit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suneet Sehgal, Director, M/s. CNC Metal Farming Pvt. Ltd. entered into criminal conspiracy with Pradeep Shukla and S.P. Ram, the then DG, Family Welfare and Officers of PACCFED for obtaining the contract for up-gradation work of 89 District Level Hospital on the basis of bogus documents submitted by the said company. The said work was allotted to the PACCFED by the Pradeep Shukla on 13.7.2010 instead of UPPCL which was already doing similar work in 40 Hospital by showing that the performance of UPPCL was not satisfactory. On persuasion of the representative of M/s. Surgicoin Medequip Pvt. Ltd. the work was allotted to UPPCL instead of PACCFED. In pursuance to the said decisions, funds to the tune of Rs. 87.16 crores were transferred in the account of UPPCL by the DG, Family Welfare on 19.8.2010 and direction was given to all Chief Medical Superintendents to consult the District Unit of UPPCL to give priority to the said work. However, again on 6.9.2010 the Executive Committee headed by Pradeep Shukla decided to transfer the work from UPPCL to PACCFED in lieu of monetary consideration to the extent of 25% of the total project cost to be paid by Sri Saurabh Jain of M/s. SRJ Infratec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money collected by the accused Babu Singh Kushwaha and R.P. Jaiswal were invested by them in various trusts and companies owned/controlled by them, their family members and associates. The above investments were undertaken through paper based companies located at various parts of India. It is alleged that these companies are only in the business of creating entries with regard to the regularisation of illegal financial transaction. These companies used to create cheque entries against the cash payments received from the parties. Details of investments made by the two accused is contained alongwith the charge-sheet. The purchase committee of Unit No. 50 C DS Barabanki has collected 04 quotations from M/s. Surgicoin Medequip Pvt. Ltd., M/s. Modern Interiors, 30, M/s. Rajpal and M/s. Avon Dealers. No other quotation was given supply order. Rates quoted in respect of various items as well as quotation submitted by M/s. Surgicoin Medequip Pvt. Ltd. Were 3-5 times more than the market rates prevalent at that time. By comparing the rates a loss of Rs. 5.93 lacs per unit was caused to the Government exchequer, amounting to a total loss of Rs. 7.93 crores. 12. Since in all these cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y welfare. The State Health Commission's primary responsibility was to receive, manage (including disbursement of funds to implementation agencies such as Directorate, District Societies, NGOs etc.) and account the funds received from the MoH FW. The Governing Body of the Society is vested with full control of the affairs of the Society whereas the Executive Committee and such other committees constituted by the Governing Body serve as its implementation agency. 14. The Chief Secretary is the Chairman of the Governing Body which is vested with the power to monitor the financial position of the Society to ensure smooth income flow and review the annual audited accounts and is required to convene meeting at least once every six months. Body was entrusted with the job to evaluates at its annual meeting (a) the income and expenditure account and the balance sheet for the past year, (b) annual report of the Society, (c) appointments for the executive committee and the various committees, and (d) other business brought forward with permission of the Chairman. The Executive Committee is to act on behalf of the Governing Body and is empowered to take all decisions and exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agencies and governing body of the Society headed by the Chief Minister which was vested with full control of the affairs of the Society whereas the Executive Committee, Programme Committees and such other committees constituted by the Governing Body serve as its implementation agency. Executive Committee is to act on behalf of governing body and is empowered to take all its decisions and exercise all powers vested in the Governing Body except those which the Governing Body may specifically exclude. 15. It appears that the total amount of Rs. 8579.38 crores have been released by the Central Government in the State of UP. For utilisation of funds and for its proper management the governing body of the State Health Society has met only twice i.e. on 25.1.2008 and 25.7.2008 until 15.5.2011. This fact has been observed by the Division Bench of this Court in its order. It also appears that all the decision in its place, administrative or otherwise, were instead taken by the Executive Council of the State Health Society that did meet occasionally in the absence of a full-time Mission Director. It is also on record that no full time Mission Director was appointed for almost five years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision was again changed and reversed on 13.10.2010 and the same work was again allotted to PACCFED, where performance was also found to be not satisfactory while allotting the contract to UPPCL. The manner in which the said accused has influenced the course of decision is clearly reflected in the charge-sheet. Culpability of the accused in changing his decision by initially allotting the work to one company and reversing the same and then reversed again to benefit the company which was initially allotted the work by itself provides a clue regarding functioning of the accused. 2. Devendra Mohan and Ravindra Rai.--Both these accused mere functioning as Managing Director and General Manager in UPPCL: The following allegations have been levelled against them; (a) that while allotting the contract they have allowed M/s. Surgicoin Mediquip Pvt. Ltd. to have a free play in seeking the contract. It is alleged that specification provided by the purchase committee constituted by the M.D. were tailored for the said company; (b) without ascertaining the market value of the equipments required to be supplied by this company exorbitant rates quoted by him were accepted; (c) that by permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt man in collecting the said amount. In the light of these allegations this Court is called upon to find out as to whether it is a fit case for quashing of the proceedings pending before the Special Judge, Anti Corruption. 16. I have heard Mr. U. Lalit, learned Senior Advocate assisted by Mr. Imran Ullah, Mr. Gopal Chaturvedi, Senior Advocate, assisted by Mr. Samit Gopal, Mr. Sudeep Harkauli and Mr. Manish Goyal, Advocate appearing on behalf of accused applicants and learned AGA and Mr. Anurag Khanna, Advocate, appearing on behalf of the CBI and have perused the material on record. Section 482 Cr.P.C. invest this Court with power to prevent the abuse of the process of the Court or otherwise secure the ends of justice. This power cannot be exercised with regard to matters specifically covered by the other provisions of the Code. Ordinarily criminal proceedings instituted against the accused persons must be tried under the provisions of the Code. High Court would be reluctant to interfere with the proceedings at interlocutory stage. While analysing the provisions of the Code, Hon'ble Apex Court in R.P. Kapoor v. State of Punjab, AIR 1960 862, broadly laid down categories o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that representative of the M/s. Surgicoin Medequip Pvt. Ltd. Girish Mallick and Manvendra Chaddha approached him for allotment of the said contract to the company on the pretext that they were already involved in the said company from the year 2005. They are said to have met the concerned Minister in the month of June 2009. The Minister demanded an amount of Rs. 3% of the total contract amount for allotting the said work to UPPCL. An amount of Rs. 75 lacs was paid to the Minister. In this behalf statement of Manvendra Chaddha and Girish Mallick has been recorded by the Investigating Officer who have pin pointed the role of the said accused. In respect of the allotment of contract for up-gradation of 89 hospital it has come on record that the same was allotted to PACCFED. The background of allotting this work was that its proprietor namely Saurabh Jain has offered higher commission to the extent of 30% of the contract value. The contract was awarded to PACCFED on its willingness to pay the bribe who were in league with Saurabh Jain. On the intervention of the M/s. Surgicoin Medequip Pvt. Ltd. the contract was allotted to M/s. Surgicoin Medequip Pvt. Ltd. on the promise of highe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even though it is shown that members of the Executive Committee attended the meeting but the same has been belied by the statement made by the members of the said Executive Committee. It also appears that out of 19 members of the Executive Committee only 4 were shown to be present as per attendance sheet. Out of those four members one Lalit Verma, IAS the then Secretary Medical Health denied to have attended the said meeting and further three members have shown their ignorance regarding the allotment of contract to UPPCL as no such agenda was discussed relating to the said allotment. Even then the contract was allotted to UPPCL on 12.8.2009 by the said accused. In support of his contention, prosecution has examined Dr. Chandra Bhan Prasad acting as Director General, Family Welfare, Government of UP. He has stated that the procedure adopted in the Executive Committee for holding the meeting of NRHM, the said meetings were convened by then Principal Secretary Dr. Pradeep Shukla. He has stated that the meetings were convened in the conference hall of Pradeep Shukla. Agenda of items were circulated in the meeting itself. Agenda items were used and approved by the then Principal S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U, NRHM. This letter was personally handed over by accused Ravindra Rai to S.K. Singh. (b) work was assigned for facility survey to one M/s. EPOS Indian Private Ltd. by the accused Pradeep Shukla and Devendra Mohan and Ravindra Rai with intention to incorporate the concept of Modular OTs in the facility survey so as to include the same in the work of up gradation of District Level Hospital. Concept of Modular OTs was introduced to help the M/s. Surgicoin Medequip Pvt. Ltd. (c) Specification were prepared by Naresh Grover, who got the same prepared in such a way so as to derive maximum profit on those specification. (d) Publication of tender was allowed to be done only in two news paper instead of four as instructed by the Director Information and Public Relations. (e) Price offered by M/s. Surgicoin Medequip Pvt. Ltd. of Rs. 74 lacs per one Modular OT Unit and AC Unit was accepted without surveying the market value of the same. 19. In support of his contention, prosecution has relied upon the statement of Sunil Dutt son of Jai Pal Singh, partner M/s. Creative Engineers and Medical System. He has stated that he is manufacturer of Modula OT and Medical Gas Pipeline for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Designers, Conservation Consultants. The functions of M/s. ANB Consultants include consultancy for architecture, Interior Design and conservation field. He has stated in his statement that facility survey is a diverse nature of work and required multifarious knowledge and expertise and companies/firms having such multifarious proficiency are only competent to conduct such assignment. No agency or firm or individual is eligible/competent/appropriate or suitable for conducting the facility survey work which is an assorted nature of job unless that is having the said multifarious knowledge and experience. He further submits that the concept of the modular OT was neither studied during the facility survey nor it was suggested by any of the Chief Medical Superintendent during the period of conducting facility survey. A meeting was called by Devendra Mohan the then MD and Sri Ravindra Rai, GM, Commercial of UPPCL to discuss the issue of supply of Modular OTs. In the said meeting both Devendra Mohari and Ravindra Rai instructed all the participants i.e. representative of EPOS India, other Architects and Firms involved in the work of conducting facility survey of the hospitals, to inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily Welfare Minister Babu Singh Kushwaha seeking its allotment on payment of 3% of the total work. (h) Initially allotment of contract to PACCFED for up-gradation of 89 Hospitals but subsequently allotment to UPPCL and then reallotted to PACCFED; (i) Higher offer of 35% of the contract value as bribe to Sri Pradeep shukla and Babu Singh Kushwaha by Saurabh Jain results in allotting this contract back to PACCFED on 6.9.2009. (j) In up-gradation of 134 district hospitals, exorbitant rates were given by accused B.N. Srivastava, which was five times higher than the market value. Items which were supplied was done without consultation of the District Hospitals. 21. These are the circumstances and facts as are revealed and supported by evidence. It is premature at this stage to conclude that there was no conspiracy hatched by these accused persons in this case. I am not inclined to agree with the learned counsel for the applicant accused that on the principle laid down by the Hon'ble Supreme Court no case is made out at this stage so as to allow the proceedings to continue before the Trial Court. Second aspect of the matter as contended by learned counsel for the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chaddha is ignored. 22. Mr. Manish Goyal, Advocate, appearing on behalf of the applicant namely Babu Singh Kushwaha contends that no independent discretion was given to the accused to take a decision with respect to grant of contract, identification of the suppliers or movement of funds or distribution of funds as a result no decision could have been taken by him in this behalf. He further submits that from the memorandum of understanding it is evident that applicant could not have influenced any bureaucrat or executive in as much as the signatory to the policy decision was the Chief Minister of the State in the capacity of the Chairman of the State Health Mission and whatever orders were to be complied with were directly issued by the Chief Minister of the State. There is no evidence to the fact that applicant ever Chaired the meeting of the State Health Mission and commanded the bureaucrats to implement his decision. He further submits that CBI is silent on the role of Chief Minister and other Ministers. He contends that in terms of the direction issued by Division Bench of this Court a direction was issued to the CBI to hold preliminary inquiry for the year commencing 2005-06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid State Health Mission as already indicated herein above, State Health Mission was to supervise, monitor and guide the implementation of the Mission in the State and was also required to meet at least once every six months for the purpose. Release of funds was to be determined by the State Health Mission. Distribution and release of funds was exclusive domain of the State Health Mission. Executive Committee of the Society was only to implement disbursement of funds thereafter. Thus the investigation is absolutely silent on the question as to whether there was any control exercised by the State Health Mission in the implementation of the NRHM scheme in its true prospective more particularly disbursement of funds and its utilization. Under whose direction, the funds were issued in the present case is also not forthcoming in the investigation. This fact was required to be probed by the CBI which has not been done. Whether the said State Health Mission was reconstituted and whether any meeting was held as provided by Memorandum of Understanding is also not visible. While examining the contention of the learned counsel for the applicants it is clearly visible that a direction was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State. Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case Put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. The import of the section clearly indicates that the police officer can examine any person who is supposed to be acquainted with the facts of the case. At this stage, there are no limitations, imposed upon the Investigating Officer to examine any persons which may include a person who is suspected accused also. To be a witness from functional angle is to impart knowledge in respect of relevant facts i.e. precisely purpose of questioning the accused under Section 161 Cr.P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer was competent to do. However, it is not to suggest that the conclusion of the Investigating Officer are to be accepted by the Trial Court in its entirety. The Court will still have the power to examine the report as well as the material collected by the Investigating Officer and to find out the role of person involved in the commission of the offence. Any person who has been let out at the stage of the presentation of the charge-sheet can still be arrayed as accused during course of trial if there is sufficient evidence against such person, however, this issue is to be decided at the stage of trial. 32. Contention of learned counsel for the applicant that since these two persons were named as accused in the FIR as such no reliance can be placed on their evidence to implicate the present applicant is not legally correct. Consequently, this will also answer the question that there is no requirement to seek pardon as required under Section 306 Cr.P.C. Section 306 Cr.P.C. contemplates tendering of pardon to accomplice, which reads as under: 306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily and with common intent unites with the principal offender in the commission of the crime. He must be someone concerned or associates in commission of crime, partaker of guilt. Essential features of the this definition is that a person must have participated in the commission of crime. In the present case what is alleged against these two witnesses is that they have acted as representative of the Principal namely Naresh Grover, MD of M/s. Surgicoin Medequip Pvt. Ltd. to procure the contract. There role at that point of time was to motivate the accused Babu Singh Kushwaha and Pradeep Shukla to allot this contract by offering bribe. Their role ceased after the process of allotment was under taken and the manner in which it was initiated. In the matter of allotment of the contract in favour of M/s. Surgicoin Medequip Pvt. Ltd. their role is non existent. It is also admitted that they are not beneficiaries of the contract. The beneficiaries of the contract is the proprietor of M/s. Surgicoin Medequip Pvt. Ltd. Strictly speaking they cannot be said to be accomplice at this stage. Therefore, question of seeking pardon in the present case does not arise. Thus, it clearly re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allot the contract to M/s. Surgicoin Medequip Private Ltd. was in existence. It is admitted that the accused applicant was approached by the representative of the M/s. Surgicoin Medequip Private Ltd. in the month of June 2009 for allotment of the contract for the year 2009-10. Suggestion of the learned counsel for the applicant that since conspiracy had taken place some where in the month of June 2009 and the funds have been deposited from August 2010 by itself does not discount the fact that such funds cannot be traced to the bribe received. This is an issue which is required to be determined at the stage of trial. 34. Last argument of Mr. Gopal Chaturvedi, learned Senior counsel assisted by Mr. Samit Gopal, Advocate appearing on behalf of accused Pradeep Shukla is that the investigation in the matter has been taken without the approval of Central Government as provided under Section 6-A of the Delhi Special Police Establishment Act 1946. To appreciate this argument of the learned counsel for the applicant, Section 6-A of the Delhi Special Police Establishment Act 1946 is quoted hereunder: 6A. Approval of Central Government to conduct inquiry or investigation.--(1) The D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: ....When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the Court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. Import of the direction clearly mentions that the writ jurisdiction of the High Court cannot be fettered by statutory requirements of the Act and thus, the same argument will apply to Section 6-A of the Act as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge-sheet must constitute substantive offence of which accused persons have been charged. From the aforesaid discussion, it clearly emerges that there was conspiracy hatched by the accused persons and in furtherance of that conspiracy all the accused persons have played their role as a result of which loss has been caused to State exchequer and gain to the accused persons. Supportive evidence prima facie establishes the role of the accused persons in committing the offence. It is not a case where the facts do not disclose the material facts which constitute substantive offence. In order to substantiate this plea, it is necessary to discuss as to whether the facts constituting substantive offence is made out or not in respect of the offences under Sections 120-B, 420, 467, 468 and 471 IPC alongwith Section 13(2) of the Prevention of Corruption Act read with Section 13(1)(d) of the Prevention of Corruption Act. It is clearly visible that the applicants have committed the offence as revealed from the facts stated herein above. 38. In order to find out as to whether the charge-sheet reveals material facts which constitutes substantive offence. As already stated herein above sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offences which continues to subsists till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B of the Indian Penal Code. Applying the aforesaid decision in the present case, it is to be seen that the essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y abusing his position as a public servant. 41. As already stated herein above, applicants have by misusing their official position have obtained for themselves pecuniary advantage in allotting this contract to the company. Insofar as Section 13(1)(d) of the Act is concerned, the essential ingredients are (i) he should be a public servant (ii) he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) he should have obtained a valuable things or pecuniary advantage for himself or for any other person. In Section 13(1) (d), the word used is 'obtained'. The Apex Court in the case of C.K. Damodaran Nair v. Government of India, (1997) 9 SCC 477, had the occasion to consider the word 'obtained' used in Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12 thus: 12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the reports referred to in the charge-sheets and the involvement of the respondent etc. could be decided only if an opportunity is given to the prosecution. The High Court, in such circumstances, was not justified in quashing all the First Information Reports and the charge-sheets in exercise of its powers under Section 482 CrPC. 44. Further the Hon'ble Supreme Court in State of Andhra Pradesh v. Vangaveeti Nagaiah, 2009 (12) SCC 466, has held that at the time of framing of the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. Hon'ble Supreme Court in Sushil Suri v. CBI, 2011 (5) SCC 708, held as under: Section 482 of the Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely: (i) to give effect to an order under the Cr.P.C.; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence and not to analyse the probability of this evidence. Before parting with the judgement, a direction is required to be given to the trial Court to dispose of the case expeditiously by putting it on fast track. Mere filing of the charge-sheet by in itself would not meet the ends of justice unless trial in the matter is concluded expeditiously. In order to dispose of the matters where large scale misappropriation of the Government funds is alleged, State Government is required to take a decision of constituting new Special Courts to deal with these type of cases. Direction is issued to the Chief Secretary for considering the constitution of special Courts to try these type of cases. Decision in this behalf be taken by the Government after examining number of cases which are pending before the CBI Court at Ghaziabad. Let this decision be taken within a period of three months from the date certified copy of this order is received. I have also perused the list of witnesses which the prosecution intends to examine. As many as 384 witnesses have been listed in the charge-sheet which by in itself is sufficient indication that the trial is likely to be delayed. Trial Court in this be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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