D.K.SINHA, J. - (1.) THIS Cr. Revision application has been directed against the order impugned dated 16.9.2002 passed by Sri. S.B. Ojha, Judicial Magistrate, 1 st Class Garhwa in Garhwa P.S. case No. 86 of 1997 corresponding to G.R. No. 289 of 1997 whereby and whereunder the petition for discharge of the petitioners herein was rejected.
(2.) THE prosecution story as it stands in the written report of the Block Development Officer, Garhwa sent to the Officer -in charge of Garhwa police station was as against the Scheme No. 1 of 1990 -1991. A cost of Rs. 3,65,000/ - was estimated for the construction of Gowawal High School Dhumria and the work in the first phase was allotted to one Jadunandan Dubey and he completed the work by 24.9.1991 worth Rs. 1,10,250/ - but its cost was assessed Rs. 1,09,700/ -. Finding certain slackness on the part of the said contractor, part of the work was assigned to another person, Rajendra Jha as against revised estimate of Rs. 4,01,500/ -. He received a sum of Rs. 2,93,050/ - and work done by him was estimated to Rs. 3,10,725/ - which was entered into measurement book. After some timework of the school construction was supervised by the Executive Engineer, N.R.E.P, Garhwa on 15.1.1996 and he commented on the measurement book that unless the work and quality of the construction of the building were improved, no final payment would be made. After some time the construction work of the school building was inspected by the Executive Engineer (Vigilance) and he observed that there was error in the construction of the building sence not in consonance with the nature of the land vide his report dated 13.3.1997. Only after a few months the Executive Engineer N.R.E.P Garhwa reported the Deputy Commissioner as well as the informant that there was crack in the newly constructed building of the school and therefore, the students be not allowed to study in the said building. The building was inspected by other authorities and the complaint was found true. On the direction of the Deputy Commissioner, Garhwa the informant lodged the case alleging that poor quality materials were used in the construction of the school by the contractors Jadunandan Debey, Panchayat Sewak and Rajendra Jha Jansewak Garhwa. Similarly the petitioner No. l Shyam Das Singh the then Junior Engineer and the petitioner No. 2 Lakshmi Narayan Prasad the then Assistant Engineer N.R.E.P Garhwa had in prosecution of criminal conspiracy embezzled the public money to the tune of Rs. 4.03.330/ - by inflated estimation of the cost as well as wrong entry made in the measurement book. On the basis of the written report Garhwa P.S. case No. 86 of 1997 was registered for the offence under Sections 406/409/420/120B of the Indian Penal code. The police after investigation submitted charge sheet and after finding the materials against the them cognizance of the offence was taken under the aforesaid Sections against the petitioners and two others. A petition was preferred for discharge of the petitioner which was rejected by the order impugned dated 16.9.2002 by the court of Sri. S.B. Ojha, Judicial Magistrate, 1 st Class Garhwa.
(3.) THE learned Counsel submitted that the petitioners have committed no offence at all. As a matter of fact, it was the Executive Engineer, N.K.E.P. Garhwa who had prepared plan as well as estimated cost for the construction of school building on the guideline of the model plan of the Education department, Government of Bihar for whole of the State and in this manner the authorities concerned disregarded the essential factor of varying soil conditions in the different areas of the State and no precautionary measure was taken for the construction of the school building at the particular place keeping in view the soil condition. It was the donated land over which the school building was constructed without investigation of the suitability of the land for the erection of the building, according to the prescribed plan and therefore, the petitioners were bound by the plan, estimate and site given to them and had no alternative other than to perform them; supervisory duties. Neither they had authority nor they had jurisdiction to raise the question about the site condition and to safeguard against any shortcomings. The learned Counsel pointed out that the soil being of black cotton alluvial category, needed special type of foundation structure through pile foundation of specific reinforced concrete in cement columns to avoid the possibility of cracks and damages of the building. It was found by the Executive Engineer (Vigilance) that due to percolation of rain water through the voids of the holes in the cracked earth, in the nature of black cotton soil, cracks occurred on the outer walls of the building and accordingly he suggested and recommended appropriate precautionary measures to safeguard against the future damages. Therefore, nothing wrong was found in the construction work except in the foundation. As a matter of fact, the Block Development Officer did not take step to implement the suggestion of the Executive Engineer (Vigilance ) and negligently allowed the minor cracks to assume bigger proportions. The Block Development Officer, Garhwa had filed the First Information Report after more than three years after the satisfactory completion of the building with oblique motive of passing the buck or shifting his liability to others. Finally it has been submitted that absolutely there was no complaint or allegation about (i) non -execution of the work or (ii) wrong or over measurements resulting in irregular payments or (iii) quality or quantity or the structural strength of the materials used or (iv) the workmanship. The Executive Engineer N.R.E.P. Garhwa had given an unqualified certificate of satisfactory work at page 94/5 MB. 57 that he found the work satisfactory However, he had made clear that final adjustment with the contractors should be done only after the rectification work is carried out to prevent an escalation of the cracks.;