B. B. Mangalmurti, J. - (1.) This revision has been preferred against the order dated 28.05.2019 passed by Special Judge (A.C.B.), Ranchi rejecting the discharge application of the petitioner on second occasion relating to Vigilance P.S. Case No.20 of 2009 corresponding to Special Case No.25 of 2009 and Misc. Criminal Application No.90 of 2018 registered under Sections 420, 406, 408, 409 and 120B of the Indian Penal Code and Sections 12, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
(2.) The short fact of the case is that on the basis of written report, Vigilance Case was filed with the allegation that in respect of building plan passed by Ranchi Regional Development Authority, some irregularities were committed and building plan was passed without following Building Rules and, therefore, F.I.R. was lodged against 10 accused persons with some other unknown persons including this petitioner. Further allegation was that map was passed without taking into consideration that it exceeded height of the building beyond the approval given by R.R.D.A. Thereafter, Vigilance P.S. Case No.20 of 2009 registered under Sections 420, 406, 408, 409 and 120B of the Indian Penal Code and Section 12, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. Charge sheet was submitted against the accused persons including this petitioner having conspired with officials of R.R.D.A. Other Government officials influenced them through illegal means as well as corrupt practices were applied and approval of the building was obtained.
(3.) Learned counsel for the petitioner submitted that no evidence was found against the petitioner by the Vigilance Department during course of investigation. This petitioner filed an application under Section 239 of Code of Criminal Procedure for discharge. The Court below without proper appreciation, has rejected the application for discharge. Thereafter, the revision application was filed being Cr. Revision No.369 of 2018 which was disposed of on 05.04.2019 and the impugned order dated 05.03.2018 passed by Special Judge, A.C.B., Ranchi in Vigilance P.S. Case No.20 of 2009 corresponding Special Case No.25 of 2009 was quashed and set aside and the matter was remanded back to the Trial Court for passing fresh order in accordance with law after hearing the parties and on appreciation of materials collected during course of investigation. Learned counsel further submitted that after the matter was remanded back to the Trial Court, the Special Judge, A.C.B., Ranchi again without properly appreciating the facts, materials and evidences on record, rejected the discharge application of petitioner by impugned order dated 28.05.2019 which is under challenge herein. Learned counsel for the petitioner submitted that the Court below has failed to appreciate that one of the co-accused in present case namely Bhawesh Butala against whom some allegation was levelled and who had also filed an application for discharge which was dismissed by the Court below but later on by order passed in Cr. Revision No.329 of 2018 dated 19.07.2018, the High Court quashed and set aside the order with direction to the Trial Court to pass a fresh order. The Trial Court on receipt of remand order relating to that case, reconsidered and re-appreciated the entire materials collected during investigation and held that there was no material to frame charge under any of the offences alleged under Sections 420, 406, 408, 409 and 120B of the Indian Penal Code and Sections 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and allowed the application of discharge of co-accused Bhawesh Butala (Annexure-9). It is submitted on behalf of petitioner that the present petitioner is also facing the same allegation but the Trial Court has dismissed his application for discharge. He also submitted that even if some violation of building bylaws have been reported but the same constitutes violation under Sections 35 and 36 of Jharkhand Regional Development Authority Act, 2001 for which the pecuniary penalty has been provided under Section 52 of Jharkhand Regional Development Authority Act, 2001. It is also submitted that learned Special Judge, A.C.B. failed to appreciate that no cogent materials were available on record which could prove the case of prosecution. The Court below has failed to appreciate that in absence of prima facie material against the accused, the prosecution could not prove its case. When there is a provision for imposition of penalty that should have been exercised. Learned counsel also submitted that no culpability was found bribing the officials of R.R.D.A. in obtaining approval of building without following the Rules. He also submitted that N.O.C. was given by the Airport Authority and if the same was not available in the record of Court then the Court below should have called it from the Airport Authority and could have enquired whether the approval was granted or not. Learned counsel relied on a decision of Vikram Johar Versus State of Uttar Pradesh and Another,2019 SCCOnLineSC 609 in which the Hon'ble Court has also considered at Para 15 which reads as follows :- "This Court in Union of India v. Prafulla Kumar Samal, 1979 3 SCC 4 had occasion to consider Section 227 Cr.P.C., which is Special Judge's power to pass order of discharge. After noticing 227 in Paragraph No.7, this Court held following : "7.xxxxxxxxxxxxx The words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." ;