CENTRAL BUREAU OF INVESTIGATION Vs. PRATAP MAKHIJA
LAWS(SIK)-2021-3-16
HIGH COURT OF SIKKIM
Decided on March 24,2021

CENTRAL BUREAU OF INVESTIGATION Appellant
VERSUS
Pratap Makhija Respondents

JUDGEMENT

MEENAKSHI MADAN RAI,J. - (1.) The Appellant assails the Judgment of the Learned Special Judge, Prevention of Corruption Act, 1988, East District, at Gangtok, dated 30-08-2016, in S.T. (CBI) Case No.01 of 2013, by which, (a) the Respondent No.1, Dr. Pratap Makhija, (hereinafter 'A1') was acquitted of the offence under Sections 120B, 471 of the Indian Penal Code (for short, 'IPC') and Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988 (for short, 'P. C. Act'); (b) the Respondent No.2, Ramayana Singh Meena (hereinafter 'A2'), was acquitted of the offence under Sections 420 and 120B of the IPC; (c) the Respondent No.3, Surendra Mohan Sihara (hereinafter 'A3'), was acquitted of the offence under Sections 420, 471 and 120B of the IPC; (d) the Respondent No.4, Mukesh Kumar (hereinafter 'A4'), was acquitted of the offence under Sections 420, 471 and 120B of the IPC; and (e) the Respondent No.5, Tara Chand (hereinafter 'A5'), was acquitted of the offence under Sections 197 and 120B of the IPC and Section 13(1)(d)(iii) of the P. C. Act.
(2.) The Special Public Prosecutor Mr. Kali Charan Mishra for the Appellant/Central Bureau of Investigation (CBI) advancing his arguments for the Appellant briefly put forth the facts leading to registration of the case against the Respondents on 25-10-2006. That, on completion of investigation Charge-Sheet was submitted against A1 to A5 and one Dr. Khagendra Neopaney under Sections 120B, 420, 468, 471 of the IPC and Section 13(2) read with 13(1)(d) of the P.C. Act. (ii) It was the submission of Learned Special Public Prosecutor that relevant sanction for launching prosecution against A1 to A4 had been obtained from the concerned authority, P.W.30 Ramesh Babu Devella as evident from Exhibits 111 to 114. That, A1 in connivance with A2, A3 and A4 adopted procedural irregularities in the selection process by accepting their applications which were not only devoid of necessary documentation, but forged documents had also been submitted. That, A2 while seeking appointment as General Duty Attendant had submitted a false Scheduled Caste Certificate, besides which his mother's name was recorded as 'Mina' in Exhibit 39 and 'Sunhari' in Exhibit 40 with intent to cheat the Government. A3 while seeking appointment as a Laboratory Attendant had furnished a false local address to project himself as a local candidate, this act was duly supported by the evidence of P.W.2, P.W.6, P.W.12, reliance was also placed on Exhibit 60 and Exhibit 41. A4 had furnished a forged Birth Certificate and inadequate Typing Certificate. The furnishing of a forged Birth Certificate was established by the evidence of P.W.21 and Exhibits 47, 48, 86 and 87. Exhibit 42 submitted by A4 stating that he was undergoing a typing course was false as P.W.27 had deposed that he was suspended from the course and P.W.15 vide Exhibit 85 proved that the typing speed of A4 was '21' words per minute as against the required speed of 30 words per minute for a candidate. That, A2 and A4 had also furnished local addresses dishonestly to project themselves as local candidates and consequently obtained 5 (five) extra marks and were selected for appointment by fraudulent means. (iii) That, there were other procedural requirements that were flouted by A1 since the Recruitment Rules, Exhibit 'F' required that appointments to the posts were to be made from local candidates by obtaining information of eligible local candidates from the Local Employment Cell. Contrary to the Rules, A1 issued the advertisement for employment first and thereafter sought a list of candidates from the Local Employment Cell. He had also not maintained any backlog roster for Scheduled Caste (SC) and Scheduled Tribe (ST) candidates and discrepancies were found in the roster submitted by him. These facts were supported by the evidence of P.W.1 and P.W.5 as also Exhibits 4, 5, 6, 19, 34, 35, 'F' and 'L'. A1 deliberately concealed the medium of typing test as being in Hindi to enable manipulation and select A2, A3 and A4 as fortified by Section 164 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) statements of P.W.6, P.W.7 and one K. K. Rakshit. As per P.W.5, when he took over charge from A1, the Files relating to the selection procedure of Group 'C' and 'D' staff were concealed from him indicating the dubious intention of A1. The Scrutiny Committee which was to scrutinize applications was constituted by A1 who gave directions to the Committee to accept the applications of A2, A3 and A4 even without the requisite documentation. (iv) A5 for his part in connivance with A2 issued and signed a false Scheduled Tribe Certificate for A2 which helped him to obtain employment in the Regional Research Institute (Ayurveda) [for short, 'RRI (Ay)']. Arguments were also furnished with regard to A2 and Exhibits 75 and 76 in this context, but as this has already been discussed at length in Crl.A. No.29 of 2006 by this Court, no further arguments of the Prosecution need be considered being irrelevant. That, the evidence on record establishes the Prosecution case against the Respondents. That, the Learned Trial Court acquitted the Respondents herein on unfounded considerations which thereby occasioned a total failure of justice, as such, the Judgment of the Learned Trial Court is liable to be set aside.
(3.) Learned Senior Counsel Mr. K. T. Bhutia placing his arguments for A1 contended that the Prosecution has failed to prove any mens rea and actus reus on the part of A1 for the offences he was charged with. That, a simple case of recruitment was blown out of proportion on a misunderstanding of facts. That, A1 as the Head of the RRI (Ay) at the relevant time admittedly was a novice in administrative matters, duly established by the evidence of the Prosecution witnesses themselves. On a requisition by the Central Office, A1 sent the roster indicating the vacancies on the basis of percentage and then proceeded on leave. The next In-Charge sent the vacancies category-wise. Till then, the roster system had not been maintained by the RRI (Ay) as indicated in the evidence of P.W.2 (Lakshmi Kanta Ganguli), P.W.5 (Dr. Ashok Kumar Panda) and P.W.7 (Gopi Prasad). Following instructions received from the Central Authority to fill up the posts for specified categories A1 published the advertisement and on further instructions he sought the names of eligible candidates from the Employment Cell of the Government of Sikkim. The time for interview was extended to enable the local candidates to appear thereof. Pursuant thereto the Selection Committee was constituted by the Central Authority comprising of A1, P.W.3 and P.W.4. This Committee suo moto decided to give extra marks to the local candidates as deposed by P.W.2, contingent upon production of Certificate of Identification/Sikkim Subject. (ii) Out of 45 (forty-five) non-local candidates, 25 (twenty-five) had furnished local addresses for correspondence, hence the furnishing of local address was not confined only to A2, A3 and A4 nor did they seek to project themselves as local candidates. A1 did not participate in the scrutiny of applications and documents, but constituted a Scrutiny Committee comprising of P.W.6, P.W.7 and one K. K. Rakshit, vide Exhibit 'C', based on their administrative experience. Decisions for appointment were taken by the Selection Committee, hence if A1 is found to have committed offences P.W.3 and P.W.4 were also equally liable and ought to have been arrayed as accused persons. The Selection Committee was to award a total of 50 (fifty) marks to the candidates and it was decided that 20 (twenty) marks would be allotted to A1 as Chairman for the purpose of marking the candidates and the other two Members would do so on 15 (fifteen) marks each. That, P.W.3 and P.W.4 have deposed that there was no unfairness in the functioning of the Selection Committee and in such circumstances the Charge-Sheet was filed merely to harass A1 to A5. (iii) The departmental enquiry held against A1 during the pendency of WP(C) No.22 of 2006 exonerated him from all charges, while the services of A2, A3 and A4 were terminated but the order of termination was set aside by the Central Administrative Tribunal (CAT). The Order of the CAT came to be challenged by way of WP(C) No.32 of 2009 in this Court which was dismissed. Assailing this Court's Order, a Special Leave Petition (SLP) was preferred before the Hon'ble Supreme Court of India which dismissed the SLP. That, despite these facts, the Prosecution is pursuing this matter by way of Appeal. (iv) Learned Senior Counsel further urged that the Selection Committee gave extra marks to the local candidates despite their lack of past experience and Exhibit 'K' reveals this circumstance, while P.W.2, P.W.3, P.W.6 and P.W.7 have deposed in this context and P.W.32 has stated unequivocally that no favouritism was shown to A2 by A1. That, Exhibit 3 the relevant advertisement required the typing qualification to be not less than 30 (thirty) words per minute, but did not require the production of a Certificate to that effect. The candidates appeared in person and took the typing test where their speed was assessed. Besides, A1 had no motive to help A2 and the evidence would reveal that less marks were awarded to A2 by A1. A1 at no point had forced the inclusion of Hindi typing to facilitate the candidature of A2, and Hindi was included on instructions from the Central Authority to encourage the language. That, the entire procedure of appointment was transparent with due information to the Central Authority supported by Exhibit 61, the Dispatch Register, revealing such correspondence buttressed by the evidence of P.W.7. The minutes of the meeting pertaining to the examinations was scribed and prepared by P.W.3 and A1 had no hand in it as evidenced by Exhibits 15, 16 and 17. After the selection process was completed details were forwarded to the Central Authority upon which approval was granted for appointment, as stated by P.W.2 following which the appointments took place. (v) That, the WP(C) 22 of 2006 came to be filed based on Exhibit 7 dated 20-05-1985 wherein an LDC sought transfer from Gangtok to Hyderabad which was disallowed. The correspondence was leaked by an inimical employee of RRI (Ay) to the newspaper 'Hamro Prajashakti', Exhibit 58. The Writ Petitioner interpreted the correspondence to mean that the advertised posts were meant solely for local candidates which was an erroneous interpretation as the Counter-Affidavit relied on by A2 herein would indicate otherwise. Consequently, an Inspection Committee was constituted by the Central Authority and inspection conducted by one Dr. Beni Madhav, Deputy Director (Admn.) and L. K. Ganguly, Admn. Officer (Vig.) [Exhibit 1] which in its report made vague allegations of irregularities, but revealed no illegality. That, Exhibit 7 does not reflect the provisions of the Recruitment Rules (Exhibit 'F') and if the letter had been brought to the notice of the Selection Committee before completion of the recruitment process, a clarification would have been issued to that effect. In the light of these facts, the Appeal be dismissed. ;


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