S.J.MUKHOPADHAYA, J. - (1.) THIS writ petition has been preferred by the petitioner on 9th December, 2004, praying therein, for issuance of an appropriate writ/order/ direction from this Court, commanding upon the concerned respondent to release him from jail custody forthwith in connection with R.C. No. 8 (A) of 2004 (AHD -R), registered under Sec. 7 of the Prevention of Corruption Act, now pending in the Court of learned Special Judge, CBI, Dhanbad.
(2.) THE main plea taken is that the detention of the petitioner in jail custody with effect from 20th September, 2004 is in the teeth of the provisions under Section 309 (2) of the Code of Criminal Procedure, remand having been made even after the statutory period without taking cognizance. The case of the prosecution is that one Sri S.N. Jha (complainant) submitted a complaint to the Central Bureau of Investigation (hereinafter to be referred as 'CBI ') on 18th April, 2004 to the effect that the petitioner Shiv Kumar Gupta, Superintending Engineer (Civil), Chanch Victoria Area, BCCL, Barakar, Controlling Officer of the complainant, demanded an illegal gratification of Rs. 10,000. It has been stated that in September, 2002, one Sri Baldeo Bhattacharya, the then Chief General Manager of Chanch Victoria Area of Bharat Coaking Coal Ltd., Dhanbad, having discussed ordered to the effect that he will supervise various ongoing civil works, undertaken by the Company, Bharat Coaking Coal Ltd. at Lalkdih, Dahibari Open Cast Project and Basanti Mata Colliery. It has been further stated that although there was a clear order of the then Chief General Manager that some of the works are to be supervised by him (complainant), they were entrusted to one Bimal Mukherjee, Senior Engineer (Civil), Chanch Victoria Area No. 12, BCCL, by Sri Shiv Kumar Gupta (petitioner). It has further been alleged that Sri Shiv Kumar Gupta did not appear to be kindly disposed of with the complainant and the Supervisory Authority called him on 17th July, 2004 and demanded an illegal gratification of Rs. 10,000.00 from him, saying that if he (complainant) fails to give the amount, his supervision work will be assigned to said Sri Bimal Mukherjee within a day or two. The complainant, being not inclined to pay money, filed a complaint before the CBI, who after verification, drew up a First Information Report and prepared a pre -trap memo for laying a trap of the petitioner. It was mentioned in the pre -trap memo that the petitioner had demanded money from the complainant for associating him in execution of the contract, relating to construction of macadamized road at Laikdih, New Laikdih, Dahibari Open Cast Project and Basanti Mata Colliery. The CBI team, thereafter, proceed for Dhanbad from Ranchi under the leadership of A.K. Jha, Inspector of Police, CBI, AHD, Ranchi along with the complainant by Shatabdi Express. While they were proceeding, the complainant Sri Shashi Nath Jha was asked to contact the petitioner. After the petitioner, was contacted and the meeting place was fixed at Railway Enquiry Counter, Railway Station, Dhanbad, at the arrival time of Howrah Jabalpur Shaktipunj Express at evening. Requestion was also made to the Senior Divisional Manager, LIC of India, Divisional Officer, Hazaribagh, to depute two officers at Dhanbad Railway Station at the arrival time of Shatabdi Express. At the Railway Station, Dhanbad, those two witnesses were introduced to the complainant Sri Shashi Nath Jha and the purpose was disclosed to them. Thereafter, the petitioner was arrested at the Enquiry Counter, Railway Station, Dhanbad, while accepting money from the complainant Shashi Nath Jha. All the formalities were observed at the Station itself.
(3.) ACCORDING to the petitioner, he is innocent and has been falsely implicated in this case, he having committed no offence. Counsel for the petitioner submitted that the letter, forwarding charge -sheet, was issued on 18th September, 2004 along with the original sanction order. List of witnesses, list of documents and list of material objects were received but without the case diary and, accordingly, the Sr. Public Prosecutor of CBI was directed to produce the case diary on the next date. It has been submitted that the original case diary along with other papers having not been forwarded to the Court, no cognizance was taken by the learned Court below. Though it was not permissible for the learned Magistrate to remand an accused in a case where cognizance has not been taken even after submission of charge -sheet, impugned order of remand has been passed illegally in the teeth of the provisions of Sec.309 (2) of the Code of Criminal Procedure.;