PUSHPENDRA KUMAR SINHAversusSTATE OF JHARKHAND

                        [2022] 11 S.C.R. 25                             25


                 PUSHPENDRA KUMAR SINHA                                 A
                                 v.
                    STATE OF JHARKHAND
                (Criminal Appeal No. 1333 of 2022)
                         AUGUST 24, 2022                                B
      [N. V. RAMANA, CJI, J. K. MAHESHWARI AND
                  HIMA KOHLI, JJ.]
       Penal Code, 1860 – ss.109, 409, 420, 467, 471, 477A and
120B – Prevention of Corruption Act, 1988 – s.13(1)(c) and
                                                                        C
s. 13(1)(d) – Charges under – While giving effect to an award in
favour of RPCL, JSEB faced shortage of funds – JSEB decided to
make internal enquiry into handling the work contract given to
RPCL – On basis of the said enquiry, allegations of malpractice
and financial irregularity were levelled against the appellant and
some others – FIR was registered – Charge sheet was filed –             D
Appellant moved a discharge petition u/s.239 of Cr.PC, which was
dismissed by the Special Judge – Revision was also dismissed by
the High Court – On appeal, held: The decisions in the board
meetings were taken with mutual consent of the parties – Appellant
was neither involved nor was a part in the proposal or the decision
                                                                        E
making process – Appellant had merely prepared the agenda for
appointment of an arbitrator and had nothing to do with approval
of award and payment of money – Prima-facie there is nothing which
affixes culpability or constitutes commission of offence including
mens-rea on the part of the appellant – Appellant was neither
entrusted with funds of JSEB nor he had fraudulently or dishonestly     F
deceived senior officials of the JSEB to cause any benefit to RPCL
or any wrongful loss to JSEB and no evidence of illegal gratification
or disproportionate assets were found against the appellant –
Consequently, appellant is discharged in the criminal proceedings.
      Allowing the appeal, the Court                                    G
      HELD: 1. The perusal of material indicates that because
it was difficult for the JSEB to implement the award due to
financial difficulty, a roving and fishing enquiry was conducted, in
consequence of which, Secretary, JSEB vide letter dated
30.07.2010 and then Vigilance Commissioner vide letter dated            H
                                  25
26            SUPREME COURT REPORTS                     [2022] 11 S.C.R.


A    03.09.2010, requested the DGP, Vigilance Bureau to register an
     FIR against the Appellant. This Court fails to understand as to
     why the same person, who had approved the implementation of
     award as a member of the Board, had later as Vigilance
     Commissioner, recommended initiation of prosecution against
     the Appellant, who had merely prepared the agenda for
B
     appointment of an arbitrator and had nothing to do with the
     approval of the award and payment of money. In view of the
     aforesaid, if at all any culpability had to be assigned, it should
     have been assigned after examining the role of senior authorities
     who were involved in the decision-making process. Astonishingly,
C    most of the senior officials, who approved various decisions
     regarding extension of time, appointment of arbitrator and
     implementation of arbitration award and consequent payment to
     RPCL have not been arrayed as accused. In our considered view,
     prima-facie there is nothing which affixes culpability or constitutes
     commission of offence including mens-rea on the part of the
D
     Appellant. It seems that an attempt has been made to implicate
     the Appellant for the decisions in which prima-facie, he did not
     have any role to play, nor do his acts establish any culpability
     regarding the alleged offences. [Para 13][36-D-H]
           2. If at all there were issues with respect to the
E    maintainability of the award due to the provisions of the contract,
     particularly as per the contended negative covenant, the same
     should have been highlighted by the Attorney General, especially
     when his opinion was expressly sought. This Court finds it difficult
     to accept that the opinion of the learned AG was prejudiced merely
F    because he was not made aware of the negative covenant
     pertaining to price variation by an engineer of the JSEB who has
     limited exposure in the domain of law. This Court has no hesitation
     in stating that AG being the highest law officer of a State, is
     competent to advise the State on legal matters after due diligence,
     taking into consideration all relevant factors and material.
G    Therefore, the Appellant cannot be said to influence or impact
     the opinion of the learned AG which had resulted in approval of
     JSEB to implement the award. Hence, in considered view of this
     Court, it cannot be inferred that the Appellant led the AG and the

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  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                          27


JSEB to implement the award with fraudulent or dishonest                A
intention to cause loss to JSEB and benefit to RPCL. [Para 14][37-
A-C]
       3. It is a well settled law that at the time of framing of the
charges, the probative value of the material on record cannot be
gone into but before framing of charge the Court must apply it’s        B
judicial mind on the material placed on record and must be satisfied
that the commission of offence by the accused was possible.
Indeed, the Court has limited scope of enquiry and has to see
whether any prima-facie case against the accused is made out or
not. At the same time, the Court is also not expected to mirror
the prosecution story, but to consider the broad probabilities of       C
the case, weight of prima-facie evidence, documents produced
and any basic infirmities etc. In this regard the judgment of “Union
of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” can be
profitably referred for ready reference. Having due regard to the
documents placed before us and in the light of the submissions          D
and discussion made above, we are of the considered view that
sufficient grounds casting a grave suspicion on the Appellant, do
not exist. It is observed that the ingredients of alleged offences
cannot be prima-facie established against the Appellant as neither
had he been entrusted with funds of JSEB nor he had fraudulently
or dishonestly deceived senior officials of the JSEB to cause any       E
benefit to RPCL or any wrongful loss to JSEB and no evidence of
illegal gratification or disproportionate assets has been found
against the Appellant. [Para 18][40-E-H]
      Union of India v. Prafulla Kumar Samal (1979) 3 SCC
      4 : [1979] 2 SCR 229 – referred to.                               F

                       Case Law Reference
[1979] 2 SCR 229               referred to             Para 18
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1333 of 2022.                                                           G
      From the Judgment and Order dated 06.01.2020 of the High Court
of Judicature at Jharkhand at Ranchi in Criminal Revision No. 1057 of
2018.

                                                                        H
28            SUPREME COURT REPORTS                        [2022] 11 S.C.R.


A          Prashant Bhushan, Ms. Alice Raj, Rahul Gupta, Shiv Kumar Vats,
     Advs. for the Appellant.
          Arunabh Chowdhury, AAG, Vishnu Sharma, Shantanu Sagar,
     Karma Dorjee, Dechen Wangdi Lachungpa, Advs. for the Respondent.
           The Judgment of the Court was delivered by
B
           J. K. MAHESHWARI, J.
           Leave granted.
            2. The Appellant has assailed the final judgment dated 06.01.2020
     passed by High Court of Jharkhand at Ranchi in Criminal Revision No.
C    1057 of 2018, by which the order dated 04.07.2018 passed by learned
     Special Judge, Anti-Corruption Bureau dismissing the application for
     discharge filed by the Appellant under Section 239 of Code of Criminal
     Procedure, 1973 (for short “Cr.P.C.”) in connection with Special Case
     No. 02 of 2011 has been affirmed. The criminal case was registered
D    against the Appellant and others for commission of offences under
     Sections 109, 409, 420, 467, 471, 477A and 120B of Indian Penal Code
     (for short “IPC”) and Section 13(1)(c) and 13(1)(d) read with 13(2) of
     Prevention of Corruption Act, 1988 (for short “PC Act”).
            3. The facts briefly put are that the Appellant was working as an
     Executive Engineer (Electrical) (“EE”) in the Accelerated Power
E
     Development Reforms Program (“APDRP”) Wing of Jharkhand State
     Electricity Board (in short “JSEB”) from 07.12.2004. During his tenure
     as EE, one Ramjee Power Construction Limited (hereinafter “RPCL”)
     was awarded a contract of work under APDRP vide work order dated
     27.01.2005. On account of delay in execution of the work and to resolve
F    the said issue, the then Chairman JSEB, Mr. Shivendu, convened a meeting
     on 21.12.2006, wherein he orally instructed Mr. R.P. Agarwal, the then
     Chief Engineer (“CE”), to place the agenda for next board meeting for
     termination of the contract of M/s RPCL. Prior to convening of the next
     Board meeting, Mr. V.N. Pandey was appointed as the new Chairman,
     JSEB on 04.01.2007. The new Chairman called for a meeting on
G
     06.02.2007/07.02.2007 for the agenda to review the progress of RPCL’s
     work. In the said meeting, other officers of JSEB including Mr. R.P.
     Agarwal, CE, had participated. In the meeting, it was mutually agreed
     by JSEB and RPCL that full effort to complete the work within the
     extended time, i.e. July, 2007 shall be made by RPCL. In furtherance of
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  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                                 29
              [J. K. MAHESHWARI, J.]

the decision taken in the aforesaid meeting, Mr. R.P. Agarwal, CE, made        A
various correspondences reminding RPCL to complete the pending work.
On retirement of Mr. R.P. Agarwal, Mr. S.C. Shrivastava Superintending
Engineer (Electrical) was made in charge in place of Mr. R.P. Agarwal.
Meanwhile, RPCL sent letters dated 16.05.2007, 18.05.2007 and
08.06.2007 requesting him for further extension of time. In the said
                                                                               B
correspondences, it was said that RPCL had already invoked the
arbitration clause on 22.12.2006, in terms of the contract and requested
JSEB for appointment of an arbitrator. The said letters were handed
over to the Appellant, on which under the instructions, the Appellant
prepared a note dated 08.06.2007 and placed it before the Chairman on
the issue relating to appointment of an arbitrator and waiver of penalty,      C
as advised by learned Advocate General (“AG”) of State of Jharkhand
in similarly placed transmission lines projects.
       4. Thereafter, vide JSEB resolution dated 28.06.2007, a committee
consisting of one Mr. GNS Munda (Member, Technical), Mr. A. Banerjee
(Finance) and Mr. A.K. Mishra (Law Officer) was constituted, which             D
on 09.08.2007 suggested three names for appointment of an Arbitrator.
Out of the three names as suggested, Mr. Ramayan Pandey was
appointed as the arbitrator by consent. Arbitration proceedings
commenced and an interim award dated 25.11.2007 was passed in favour
of RPCL. Thereafter, an agenda accompanied with the aforesaid award
was put before Chairman, Mr. B.M. Verma prior to asking for an opinion         E
from the AG--, State of Jharkhand, regarding enforceability of the award.
Later, as per the opinion of the AG, JSEB vide Board Resolution dated
05.04.2008 and 07.04.2008, decided to implement the interim award. It
is worthwhile to state that, Mr. GNS Munda (Member, Technical) as
well as Smt. Rajbala Verma (then Finance Secretary, State of Jharkhand)        F
were part of this Board meeting.
       5. It is pertinent to mention that, while giving effect to the award,
JSEB was facing shortage of funds. However, JSEB decided to make
internal enquiry into handling the work contract given to RPCL. On the
basis of the said enquiry, allegations of malpractice and financial            G
irregularity were levelled against the Appellant and some others. The
Secretary, JSEB vide letter dated 30.07.2010, made a request to the
Director General of Vigilance Bureau (“DGP”) to lodge an FIR against
the Appellant and others for offences punishable under Sections 109,
409, 420, 467, 471, 477A and 120B of IPC and Section 13(1)(c) and
                                                                               H
30               SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A    13(1)(d) read with 13(2) of PC Act. Additionally, another letter dated
     03.09.2010, was issued by Smt. Rajbala Verma (then Vigilance
     Commissioner) to the DGP, recommending the same action against the
     Appellant. As already noted above, Smt. Rajbala Verma was also a part
     of the Board meeting (being the then Finance Secretary, State of
     Jharkhand) that had approved the implementation of the arbitral award.
B
     In the said facts, FIR dated 20.01.2011 was lodged against the Appellant
     and other officers of the JSEB. Investigation was carried out, chargesheet
     dated 08.01.2016 was filed and cognizance was taken by the Court dealing
     with vigilance cases vide order dated 11.01.2016. Thereafter, the
     Appellant moved a discharge petition under Section 239 of the Cr.P.C.,
C    which came to be dismissed by the learned Special Judge vide order
     dated 04.07.2018. The Court observed that sufficient material exists to
     make out a prima-facie case against the Appellant for framing of
     charges.
            6. Aggrieved by the same, the Appellant preferred a criminal
D    revision assailing the aforesaid order. The High Court vide impugned
     order dismissed the revision and affirmed the order passed by the learned
     Special Judge. The High Court was prima-facie influenced by the fact
     that the previous chairman, JSEB, Mr. Shivendu had orally instructed to
     put up the agenda for termination of the contract of RPCL. On demitting
     the office by the said Chairman, the Appellant had put the file noting
E    before the subsequent Chairman Mr. V.N. Pandey, regarding referral of
     the matter for arbitration without mentioning about the instructions given
     by the previous Chairman, JSEB. The High Court found fault in the
     action of the Appellant of having proposed an agenda regarding wrongful
     implementation of the award which was challenged belatedly. Thus,
F    having found a prima-facie case against the Appellant, the High Court
     dismissed the revision petition.
           7. Learned counsel for the Appellant, Mr. Prashant Bhushan
     strenuously urged as under:
           (i)     the Appellant was not having decision-making power or
G                  financial authority to carry out the contract and the award
                   passed. The nature of duty assigned to the Appellant was
                   confined to follow instructions of his superiors and by no
                   stretch of imagination he can be said to have the power to
                   refer the matter for arbitration in a case where the dispute
H                  is arising out of a work contract between JSEB and RPCL;
PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                               31
            [J. K. MAHESHWARI, J.]

  (ii)    there is no concealment of the instruction of the previous       A
          Chairman pertaining to termination of the contract as
          substantiated by noting dated 08.06.2007 on page no. 48 of
          the APDRP file which was the next page of noting of the
          CE on page no. 47, under instructions from the Chairman;
  (iii)   the prosecution has concealed that the verbal instruction        B
          for termination of contract given by the previous Chairman
          in the meeting dated 21.12.2006, had been overturned within
          two months by the new Chairman, Mr. V.N. Pandey in the
          JSEB tripartite meeting held on 06.02.2007 and 07.02.2007,
          in which the Appellant was not a member;
                                                                           C
  (iv)    the questionable noting dated 08.06.2007 of the Appellant
          was based on facts and documents forming part of the
          APDRP file endorsed to him by his controlling officer;
  (v)     the Appellant is being prosecuted on a wrong premise from
          the stage of granting time to complete the work, reference       D
          made to arbitration and till further directions for making the
          payment for the interim award passed against JSEB, in
          favour of the RPCL. He was not a part of the decision-
          making process or of taking further steps to implement the
          said award. Thus, culpability as alleged against the
          Appellant, on the pretext of not putting up the agenda for       E
          cancellation of the contract amounts to abuse of the power
          and prima-facie, no case to prosecute him is made out;
  (vi)    there is no allegation of illegal gratification, undue benefit
          or disproportionate assets qua the Appellant in the FIR or
          charge-sheet which is also backed by the income tax records      F
          of the Appellant;
  (vii)   prosecution has failed to establish any nexus between the
          Appellant and RPCL to whom the benefit is alleged to have
          been made;
                                                                           G
  (viii) while granting bail to the Appellant on merits, it was
         categorically observed by the High Court that the Appellant
         had put up the matter before higher authorities for
         instructions before proceeding further and did not act
         unilaterally;
                                                                           H
32             SUPREME COURT REPORTS                           [2022] 11 S.C.R.


A           (ix)   except for the Director of Finance, none of the decision-
                   making authorities namely, members of Central Purchase
                   Committee and the Board of JSEB have been made accused
                   in this case;
            8. Per contra, learned counsel for the Respondent-State has argued
B    in support of the concurrent findings of both the Courts and contended
     that the entire factual gamut of the instant appeal stems around the
     pleadings of defence including reliance on documents which cannot be
     permitted to be raised at this stage. It is further urged that at the stage of
     framing of charge, the scope of interference is limited, and the Court is
     not required to see as to whether there are sufficient grounds for
C    conviction. The Court has to only see the material collected during
     investigation and on consideration of the same, a prima facie case is
     made out or not.
             9. After having heard learned counsel for the parties and on perusal
     of the record, which reveals that after the board meeting dated 21.12.2006,
D    the then Chairman Mr. Shivendu had orally instructed the then CE,
     Mr. R.P. Agarwal to place the agenda for termination of the contract of
     RPCL. As per the said instructions, the agenda was proposed and placed
     on 27.12.2006 by Mr. R.P. Agarwal. On the said proposed agenda,
     Member Technical put up a note on 19.01.2007, recording “please
E    discuss”. Thereafter, the meeting of the JSEB was held on 06.02.2007
     and 07.02.2007, which was presided over by the new Chairman Mr.
     V.N. Pandey and Mr. R.P. Agarwal, CE, was a member of the said
     meeting. Either at the stage of the proposed agenda or in the meeting of
     the JESB held on 06.02.2007 and 07.02.2007, the Appellant had not
     participated in the decision-making process. The minutes of the aforesaid
F    meeting is relevant and reproduced as under:
          “MINUTES OF THE MEETING HELD ON 06.02.2007 &
                     07.02.2007 AT JSEB HQR.
      The following officer, consultant & contractors were present in
G                               the meeting:-
            1. Shri V.N. Pandey                              Chairman
            2. Shri R.P. Agarwal                    Chief Engineer (APDRP)
            3. Shri P. Ranjan                        General Manager-cum-
H                                                  Chief Engineer/Jamshedpur
  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                          33
              [J. K. MAHESHWARI, J.]

      4. Shri Niranjan Rai                     Director (Finance)       A
      5. Shri Madhup Kumar                    Director (RE/Plan)
      6. Shri P. Raghu                            RITES Ltd.
      7. Shri Y.P. Singh                              do
      8. Shri A.K. Singh                            RPCL                B
      9. Shri T.K. Bhattacharya                       do
      The issue of M/s RPCL was discussed in length. Work of
Jamshedpur town under APDRP has been awarded to M/s RPCL
vide W.O. Nos. 28 & 29 dated 27.01.2005. The progress was
                                                                        C
reviewed and found that progress is very-very slow. After discussion,
JSEB & M/s RPCL mutually agreed on the following points:-
      1. M/s RPCL will submit photo copy of all orders placed by
         them for procurement of materials for the APDRP work
         of Jamshedpur to Chief Engineer/APDRP & m/s RITES
                                                                        D
         Ltd., the consultant.
      2. JSEB will help Ms RPCL for procurement of materials.
      3. JSEB will be make payment immediately (probably within
         a week) after submission of bills by M/s RPCL.
      4. Approval of additional B.O.Q. and items shall be given         E
         by JSEB immediately.
      5. M/s RPCL will submit fresh inspection call of materials to
         Electrical Superintending Engineer-cum-CEO/General
         Manager-cum-Chief Engineer, Jamshedpur for getting
         inspecting officer deputed.                                    F
      6. M/s RPCL will contract Chief Engineer (APDRP) if here
         is any delay in issuing Road permits by Chief Engineer
         (S&P).
      7. M/s RPCL agreed that they will apply their full efforts to
                                                                        G
         complete the project so that it may be completed within
         extended completion period i.e. July’ 07 instead of going
         for Arbitration/Court of Law.
      8. JSEB will review the matter of L.D. clause after completion
         of the project work.
                                                                        H
34               SUPREME COURT REPORTS                     [2022] 11 S.C.R.


A                                                                           Sd/-
                                                              (R.P. Agrawal)
                                                  Chief Engineer (APDRP)
           Memo No. ...............                       Dated..................
B          Copy forwarded to all concerned officers/M/s RITES Ltd./
           M/s RPCL for information and necessary action.
                                                           Fax – 2543986"
            10. The perusal of the aforesaid minutes and the proposed agenda
     dated 27.12.2006 prepared by Mr. R.P. Agarwal, CE, reveals that the
C
     oral recommendation of the then Chairman, Mr. Shivendu, was drawn in
     the proposed agenda but it was not acted upon as per the noting dated
     19.01.2007 made by the Member Technical who made an endorsement
     “Please discuss”. Thereafter, what was the agenda that was put forth
     in the next JSEB meeting, is not on record. The minutes of the Board
D    meeting reflect that Mr. R.P. Agarwal who had prepared the agenda
     dated 27.12.2006, was a part of the said meeting. The decisions were
     taken in the said meeting with the mutual consent of the parties. The
     Appellant was not a part of the decision-making process. In the said
     meeting as per clause (7), it was decided that “M/s RPCL agreed that
     they will apply their full efforts to complete the project so that it
E
     may be completed within extended completion period, i.e., July’ 07,
     instead of going for Arbitration/Court of Law.” Correspondences
     further reflect that prior to demitting the office, Mr. R.P. Agarwal, CE,
     wrote three letters, of which two were dated 05.04.2007 and one was
     dated 25.04.2007, requesting RPCL for implementation of the contract
F    as per the decision of JSEB. The said correspondence also does not
     show any involvement of the Appellant. As alleged, the agenda dated
     08.06.2007 was prepared by the Appellant, wherein the following
     instructions were required to be obtained:
           “…….Hence instruction may be obtained on:
G          (i)     Appointment of an arbitrator in light of the advice of
                   the AG Jharkhand.
           (ii)    Waiver of penalty in light of the advice of the AG,
                   Jharkhand, and

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  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                                 35
              [J. K. MAHESHWARI, J.]

      (iii)   Putting the agenda for further time extension                    A
              incorporating the condition of approval of revised BQO
              which could not be given till date.”
       11. On perusal of the JSEB Board meeting dated 06.02.2007 and
07.02.2007, it is clear that extension was granted up to July 2007 instead
of going in for arbitration or approaching the Court of Law. The JSEB          B
and its members were not inclined to cancel the contract and the decision
was taken by mutual consent. Therefore, the instructions sought by the
Appellant as per the agenda dated 08.06.2007, were either based on the
advice of the learned AG of Jharkhand or in furtherance of the previous
decision of the Board. Later, it was directed that JSEB, Member Technical
may constitute a committee consisting of officers from ‘Technical’,            C
‘Finance’ and ‘Law’ to suggest the names to appoint an Arbitrator, after
approval of the Chairman. The Member Technical proceeded in the
matter of appointment of Arbitrator and three names were proposed on
09.08.2007, out of which, Mr. Ramayan Pandey, Ex-Law Secretary,
State of Jharkhand was appointed as an arbitrator. The Arbitrator passed       D
an interim award on 25.11.2007, in favour of RPCL.
       12. In view of the discussion made hereinabove, it is apparent
that at the time of taking a decision by the JSEB on 06.02.2007 and
07.02.2007, the Appellant was neither involved nor was part in the
proposal or the decision-making process. He had prepared the proposed          E
agenda for instructions on 08.06.2007, in furtherance of clause (7) of
the aforesaid Board meeting, and based on the advice of the learned AG,
State of Jharkhand in the matter of appointment of an Arbitrator and
waiver of penalty, as suggested. Even after the proposed agenda for
termination of the contract dated 27.12.2006, prepared by the then CE
Mr. R.P. Agarwal, it was not acted upon because Member Technical on            F
19.01.2007, had put up a note “Please discuss”. Later, the Board took
a decision on 06.02.2007 and 07.02.2007. Thus, it is clear that the question
of termination of contract in the opinion of the Board was dropped and
the recourse to complete the work within the extended time was agreed
in place of going in for arbitration/Court of Law. The same has also           G
been observed by the High Court in its order dated 02.05.2016, while
granting bail to the Appellant on merit. In the said facts, merely preparing
a subsequent agenda dated 08.06.2007, seeking instructions for
appointment of an Arbitrator would not bring the Appellant within the
purview of culpability for commission of the alleged offences. This Court
                                                                               H
36            SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A    has reason to believe that the decisions, if any, taken by the JSEB and
     other higher officials were after perusal of the complete noting in the
     file. After implementation of the said decision, arbitral proceedings were
     commenced and award dated 25.11.2007 was passed. Thereafter, the
     agenda regarding implementation of the award was put up before the
     Chairman, Mr. B.M. Verma who vide noting dated 27.01.2008, made a
B
     request to the AG to give legal opinion about the maintainability and
     enforceability issues relating to the interim award. The learned AG
     responded by letter dated 31.01.2008, opining that the award did not
     suffer from any illegality and should be implemented. Accordingly, the
     Board of JSEB approved the interim arbitral award vide resolution dated
C    05.04.2008 and 07.04.2008. In the said meeting, Smt. Rajbala Verma
     (then Finance Secretary to the State of Jharkhand) also participated and
     duly approved the resolution.
            13. The perusal of material indicates that because it was difficult
     for the JSEB to implement the award due to financial difficulty, a roving
D    and fishing enquiry was conducted, in consequence of which, Secretary,
     JSEB vide letter dated 30.07.2010 and Smt. Rajbala Verma (then
     Vigilance Commissioner) vide letter dated 03.09.2010, requested the DGP,
     Vigilance Bureau to register an FIR against the Appellant. We fail to
     understand as to why the same person, who had approved the
     implementation of award as a member of the Board, had later as Vigilance
E    Commissioner, recommended initiation of prosecution against the
     Appellant, who had merely prepared the agenda for appointment of an
     arbitrator and had nothing to do with the approval of the award and
     payment of money. In view of the aforesaid, if at all any culpability had
     to be assigned, it should have been assigned after examining the role of
F    senior authorities who were involved in the decision-making process.
     Astonishingly, most of the senior officials, who approved various decisions
     regarding extension of time, appointment of arbitrator and implementation
     of arbitration award and consequent payment to RPCL have not been
     arrayed as accused. In our considered view, prima-facie there is nothing
     which affixes culpability or constitutes commission of offence including
G    mens-rea on the part of the Appellant. It seems that an attempt has
     been made to implicate the Appellant for the decisions in which prima-
     facie, he did not have any role to play, nor do his acts establish any
     culpability regarding the alleged offences.

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  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                                  37
              [J. K. MAHESHWARI, J.]

        14. If at all there were issues with respect to the maintainability     A
of the award due to the provisions of the contract, particularly as per the
contended negative covenant, the same should have been highlighted by
the learned AG, especially when his opinion was expressly sought. We
find it difficult to accept that the opinion of the learned AG was prejudiced
merely because he was not made aware of the negative covenant
                                                                                B
pertaining to price variation by an engineer of the JSEB who has limited
exposure in the domain of law. We have no hesitation in stating that AG
being the highest law officer of a State, is competent to advise the State
on legal matters after due diligence, taking into consideration all relevant
factors and material. Therefore, the Appellant cannot be said to influence
or impact the opinion of the learned AG which had resulted in approval          C
of JSEB to implement the award. Hence, in our considered view, it cannot
be inferred that the Appellant led the AG and the JSEB to implement the
award with fraudulent or dishonest intention to cause loss to JSEB and
benefit to RPCL.
       15. On a perusal of the FIR, we find that it is alleged against          D
Umesh Kumar, Financial Controller – III and the present Appellant, CE
(APDRP), that they made payment of Rs.4,89,24,788/- against the gross
value of Rs. 7,89,84,826/-, as per the arbitral award without approval of
the competent authority. Mr. Umesh Kumar had filed quashment petition
being ‘Cr. M.P. No. 2136/2015’ before the High Court wherein the Court
on the allegation of payment without approval of the competent authority        E
(as alleged against Appellant also) has observed as under:
      “1.    Having heard learned counsel for the parties and on
             perusal of the records, I do find that nothing is there
             against the petitioner with respect to appointment of
             M/s RPCL nor anything is there in the matter of                    F
             appointment of an Arbitrator. Only when award was
             given by the Arbitrator, the petitioner did make payment
             of the amount which had been awarded not from the
             working fund but from the loan fund. This has been
             taken by the Vigilance to be illegal as according to it            G
             the payment should not have been made from the
             existing loan amount, as the loan had never been taken
             for the purpose of making payment of the amount
             awarded by the Arbitrator. This accusation cannot be
             the subject matter of the prosecution in absence of
                                                                                H
38        SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A           anything being placed that there was restriction on the
            part of the authority of the Board to make payment of
            the amount covered under the award passed against
            the Board from the loan account. It is opinion of the
            Vigilance not based on any circular or guideline that
            the payment should have been made after having a fresh
B
            loan from the Power Finance Corporation. It be stated
            that the petitioner is to act according to his own wisdom
            and not as per the wishes of others and if nothing is
            there showing any culpability in the matter of payment
            of the amount, the petitioner cannot be said to have
C           committed any wrong.
     2.     Coming further, it be stated that the petitioner passed
            release order with respect to payment of a sum of
            Rs. 4,89,24,788/- but that release order was passed
            without having any approval of the Chairman though
D           such post facto approval according to the petitioner
            has been granted by the Chairman not on the file but
            on separate sheet which according to the Vigilance is
            bad but even if this irregularity is there in the matter of
            payment of the said amount, his culpability can only be
            found when something is more there showing his
E           connivance or conspiracy with the contractor though
            the Vigilance has tried to establish that the file moved
            so fast but that never indicates about the culpability of
            the petitioner, as there may be conspiracy of other
            officials with the contractor on account of which the
F           file moved so fast. Furthermore, it has never been the
            case of the vigilance that the aforesaid payments were
            made without the materials being supplied or short
            supplied.
     3.     Further, it be stated that the ingredients of the offence
G           of criminal conspiracy are that there should be an
            agreement between the persons who are alleged to
            conspire and the said agreement should be for doing of
            an illegal act or for doing, by illegal means, an act
            which by itself may not be illegal. In other words, the
            essence of criminal conspiracy is an agreement to do
H
  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                                 39
              [J. K. MAHESHWARI, J.]

             an illegal act and such an agreement can be proved                A
             either by direct evidence or by circumstantial evidence
             or by both and it is a matter of common experience that
             direct evidence to prove conspiracy is rarely available.
             Accordingly, the circumstances proved before and after
             the occurrence have to be considered to decide about
                                                                               B
             the complicity of the accused. Even, if some acts are
             proved to have been committed, it must be clear that
             they were so committed in pursuance of an agreement
             made between the accused persons who were parties to
             the alleged conspiracy. Inferences from such proved
             circumstances regarding the guilt may be drawn only               C
             when such circumstances are incapable of any other
             reasonable explanation. In other words, an offence of
             conspiracy cannot be deemed to have been established
             on mere suspicion and surmises or inference which are
             not supported by cogent and acceptable evidence. This
                                                                               D
             proposition of law has been laid down by the Hon’ble
             Supreme Court in a case of Central Bureau of
             Investigation, Hyderabad Vs. K. Narayana Rao {(2012)
             9 SCC 512}. Here in the instant case, nothing appears
             to be there for showing connivance or conspiracy except
             aforesaid two facts which have been dealt with                    E
             hereinabove regarding payment of the amount to the
             contractor.”
       16. The High Court quashed the criminal proceedings against
Umesh Kumar with the above said observations. Assailing the same,
Special Leave Petition (Criminal) No. 4062 of 2017, was filed by the           F
State of Jharkhand, which was dismissed by this Court vide order dated
05.02.2020, after condoning the delay. As per the FIR allegations, it is
alleged that Umesh Kumar and the present Appellant had made the
payment of Rs.4,89,24,788/- against the gross value of Rs.7,89,84,826/-
without approval of the competent authority. In this regard, the allegation
against the Appellant is that he suggested that part payment of the arbitral   G
award may be made to RPCL from the working fund, on refundable
basis since there was no fund available in the Power Finance Corporation
Account. It is not the case of the prosecution that the Appellant had
made payment to the agency. However, it can be inferred that the
Appellant has suggested the possible mode of payment in furtherance of         H
40             SUPREME COURT REPORTS                            [2022] 11 S.C.R.


A    the Board’s office order no. 243 dated 16.03.2006, after passing of the
     arbitral award which was required to be paid alongwith interest, but to
     satisfy the award by noting, the said suggestion was made. In our view,
     this itself is not sufficient to implicate the Appellant. In addition thereto,
     it is most pertinent that even on such a suggestion, the payments were
     not made from the working fund, rather, part payment of the award was
B
     made from the loan taken from Power Finance Corporation on the
     recommendation of Umesh Kumar, against whom criminal proceedings
     have been quashed as indicated hereinabove and the said order has not
     been interfered with by this Court.
            17. It is also worthwhile to mention that during the investigation,
C    no incriminating material or money was seized from the house of the
     Appellant. Further, it is not a case where allegations of illegal gratification
     or disproportionate assets have been successfully found by prosecution
     against the Appellant. On the contrary, when the Income Tax Department
     had assessed the block income tax return for seven years, the Department
D    recorded a refund Rs.8843 to the Appellant after detailed scrutiny of the
     records.
            18. It is a well settled law that at the time of framing of the charges,
     the probative value of the material on record cannot be gone into but
     before framing of charge the Court must apply it’s judicial mind on the
E    material placed on record and must be satisfied that the commission of
     offence by the accused was possible. Indeed, the Court has limited scope
     of enquiry and has to see whether any prima-facie case against the
     accused is made out or not. At the same time, the Court is also not
     expected to mirror the prosecution story, but to consider the broad
     probabilities of the case, weight of prima-facie evidence, documents
F    produced and any basic infirmities etc. In this regard the judgment of
     “Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” can
     be profitably referred for ready reference. Having due regard to the
     documents placed before us and in the light of the submissions and
     discussion made above, we are of the considered view that sufficient
G    grounds casting a grave suspicion on the Appellant, do not exist. It is
     observed that the ingredients of alleged offences cannot be prima-facie
     established against the Appellant as neither had he been entrusted with
     funds of JSEB nor he had fraudulently or dishonestly deceived senior
     officials of the JSEB to cause any benefit to RPCL or any wrongful loss
     to JSEB and no evidence of illegal gratification or disproportionate assets
H    has been found against the Appellant.
  PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND                               41
              [J. K. MAHESHWARI, J.]

        19. In view of the foregoing discussion, we are of the considered    A
opinion that the High Court erred in refusing to exercise the revisional
powers vested in it under Sections 397 and 401 of the Cr.P.C. and
dismissing the criminal revision preferred by the Appellant. In the facts
and circumstances of the case as discussed, the inescapable conclusion
that can be drawn in this case that ingredients of the alleged offences
                                                                             B
are not prima-facie made out against the Appellant. Therefore, we deem
it fit to allow the instant appeal and set-aside the impugned order.
Consequently, the Appellant is discharged in the criminal proceedings
arising out of Special Case No.02 of 2011.

                                                                             C
Ankit Gyan                                                 Appeal allowed.




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