Judgment 456 revn52.20 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL REVISION APPLICATION NO.52 OF 2020 Devendra Parshuram Shirke, aged about 65 years, occupation retired, r/o 50, Ishavasyam, Purnavaad Nagar, Akashwani, Gangapur Road, Nashik, taluka and district Nashik. ….. Applicant. :: V E R S U S :: The State of Maharashtra, thr. PSO PS Sadar, Nagpur, taluka and district Nagpur. ….. Non-applicant. Shri A.S.Mardikar, Senior Counsel assisted by Shri Digvijay Singh, Advocate for the Applicant. Shri Anant Ghongre, Additional Public Prosecutor for the State. CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 08/07/2025 PRONOUNCED ON : 02/09/2025 JUDGMENT 1. Heard learned Senior Counsel Shri A.S.Mardikar for the applicant and learned Additional Public Prosecutor for the State. .....2/- 2025:BHC-NAG:8326 Judgment 456 revn52.20 2 2. The present revision is filed by the applicant in connection with Crime No.3309/2016 registered under Sections 13(1)(c), 13(1)(d), and 13(2) of the Prevention of Corruption Act and under Sections 420, 468, 471, 109 and 120-B of the IPC with the non-applicant/police against rejection of discharge application vide Exh.108 in Special ACB Case No.1/2018 dated 5.8.2019. 3. Brief facts necessary for disposal of the revision are as under: The FIR came to be filed on 30.3.2016 against the applicant along with other accused persons in the wake of PIL Nos.83 and 92/2012. The Government of Maharashtra vide order No.ACB/0115/pra.kra.46/Pol-2 dated 18.2.2015 has ordered an enquiry into the allegations pertaining to irregularities in the irrigation projects of Vidarbha Irrigation Development Corporation (the VIDC). .....3/- Judgment 456 revn52.20 3 Subsequently, the Director General, Anti Corruption Bureau, Maharashtra, vide order No.EO/16/Nagpur/2015- 3961, dated 26.3.2015, had directed the Superintendent of Police, ACB, Nagpur to conduct open enquiry into the allegations of corruption made in respect of Gosikhurd Irrigation Project under the VIDC Nagpur. In the above PILs, this court issued various direction from time to time and the said PILs came to be disposed of on 12.12.2014. In view of the directions, the investigation was carried out and during the investigation it revealed that the applicant was working as Executive Director of the VIDC, Nagpur and Gosikhurd Project was under his control. The applicant ought to have acted in terms of the Maharashtra Public Workers Manual and should have taken necessary steps before allotment of tender work. Being the Executive Director of the VIDC, it was his duty to conduct the tendering process as per the norms prescribed in the .....4/- Judgment 456 revn52.20 4 Maharashtra Public Works Manual. However, he intentionally and deliberately did not perform his duty properly with an intention to help the contractors. During the investigation, it was revealed that he favoured by way of illegally updating the tender cost by wilfully adding the cost due to the guidelines of the Central Water Commission relating to the Labour Amenities to original tender cost. The applicant during the tender process had illegally revised the estimated cost of the tender from Rs.51.09 crores to Rs.53.88 crores and thereby has caused illegal cost updation of Rs.2.79 crores. He has also approved the illegal updation of tender cost at 10.72% at his own level, which was to be approved by the Principal Secretary, Water Resources Department, Government of Maharashtra. The Wadnere Committee appointed by the Government of Maharashtra has also pointed out that the updation of tender cost by Rs.2.79 crores after publishing the tender .....5/- Judgment 456 revn52.20 5 notice on the count of labour amenities was not regular. After completion of the investigation, chargesheet was filed against the applicant. The other accused persons have filed Criminal Revision Application No.44/2020 and Criminal Revision Application No.92/2020 which came to be rejected by this court on 15.12.2020 and 21.10.2020. 4. After filing of the chargesheet, the applicant filed discharge application on the ground that he had no concerned with the pre-qualification process. At the relevant time, the applicant was working as the Executive Director of the Corporation. One of grounds raised is that he is exonerated from the departmental enquiry. He was working as Executive Director of the VIDC and role attributed to him was that of sanction upto 5% excess above the updated estimate in received tender bids. It was mandatory to update the cost of work to compare with the .....6/- Judgment 456 revn52.20 6 received tender bids, which was done by the Chief Engineer. After updation of the tender cost if the work, the excess in tender bids received over the updated cost was calculated and the Chief Engineer submitted the proposal with recommendation to sanction the excess and liability to the corporation. The applicant has retired from service on 31.3.2013 and that he is liable to be discharged on the ground that the prosecution is in contravention of Rule 27(3) of the Maharashtra Civil Services (Pension) Rules. 5. Learned Senior Counsel for the applicant submitted that departmental enquiry was initiated against the applicant from which he was exonerated. No offence is made out against the applicant. His role is very limited. The name of the applicant has not been mentioned initially in the FIR. The allegations against the applicant are baseless. The applicant has no concern with the pre- .....7/- Judgment 456 revn52.20 7 qualification process and the sanction granted by the applicant is by no means increased the liability on the Government as alleged. There is no material on record indicating involvement of the applicant in the alleged offence. It was further contended that as the applicant is exonerated from the departmental enquiry on the said charges. The standard of proof required for the departmental enquiry is preponderance of probability. However, to prove the charges under the alleged offences, proof beyond reasonable doubt is required. As the charges could not be proved on the basis of preponderance of probability, no purpose would be served by asking the applicant to face the trial as there is no sufficient material to connect him with the alleged offence. Perusal of the chargesheet shows that apart from allegations that the applicant has not followed procedure diligently, there is no material whatsoever. Perusal of the .....8/- Judgment 456 revn52.20 8 chargesheet would show that no offence has been made out against the applicant. In view of that, the applicant be discharged from the charges. 6. In support of his contentions, learned Senior Counsel for the applicant placed reliance in Criminal Revision Application No.61/2022 (Prakash Shivram Natkar vs. State of Maharashtra and anr) decided by this court on 17.3.2025. 7. Per contra, learned Additional Public Prosecutor Shri Anant Ghongre for the State strongly opposed the application and submitted that during the investigation, it revealed that the applicant was the Executive Director of the VIDC, Nagpur and Gosikhurd Project was under his control. The applicant ought to have acted in terms of the Maharashtra Public Workers Manual and should have taken necessary .....9/- Judgment 456 revn52.20 9 steps before allotment of tender work. The investigation of the crime was completed by the ACB and after sanction, chargesheet has been filed. Being the Executive Director of the VIDC, it was his duty to conduct the tendering process as per the norms prescribed in the Maharashtra Public Works Manual. However, he intentionally and deliberately did not perform his duty properly with an intention to help the contractors. He favoured by way of illegally updating the tender cost by wilfully adding the cost due to the guidelines of the Central Water Commission relating to the Labour Amenities to original tender cost. Thus, his involvement reveals from the entire chargesheet. In view of that, the application deserves to be rejected. .....10/- Judgment 456 revn52.20 10 8. Before adverting to the merits of the matter, it is necessary to see considerations for considering applications for discharge. 9. It is a settled principle of law that at the stage of considering an application for discharge, the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. 10. The Hon’ ble Apex Court in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/ SC/1113 2023, adverting to the earlier propositions of law in its earlier decisions in the cases of State of Tamil Nadu vs. N.Suresh Rajan and ors, reported in (2014) 11 .....11/- Judgment 456 revn52.20 11 SCC 709 and The State of Maharashtra vs. Som Nath Thapa, reported in (1996) 4 SCC 659 and The State of MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC 338, has held as under: “10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held: "29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of .....12/- Judgment 456 revn52.20 12 the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the .....13/- Judgment 456 revn52.20 13 offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage." 11. Thus, at the stage of considering the application for discharge, the defence of the accused is not to be looked into. The expression "the record of the case" used in Section 227 of the Code of Criminal Procedure is to be understood as the documents and materials, if any, produced by the prosecution. The provisions of the Code of Criminal Procedure does not give any right to the accused to produce any document at the stage of .....14/- Judgment 456 revn52.20 14 framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. At the stage of entertaining the application for discharge under Section 227 of the Code of Criminal Procedure, the court cannot analyze or direct the evidence of the prosecution and defence or the points or possible cross examination of the defence. The case of the prosecution is to be accepted as it is. 12. In the case of Union of India vs. Prafulla Kumar Samal and anr, reported in (1973)3 SCC 4, the Hon’ ble Apex Court considered the scope of Section 227 of the Code of Criminal Procedure. After adverting to the .....15/- Judgment 456 revn52.20 15 various decisions, the Hon’ ble Apex Court has enumerated the following principles: “(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of .....16/- Judgment 456 revn52.20 16 universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a .....17/- Judgment 456 revn52.20 17 roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 13. Now, the question whether the court can take cognizance in absence of the sanction. 14. As regards absence of initially when the court has correctly dealt with the same by holding the FIR is not encyclopedia of criminal case, during the course of investigation, as material came on record, names of accused certainly be added. 15. In the present case, merely because name of applicant was not sated in the FIR, the applicant would be entitled to claim discharge. The material on record shows that the applicant was Executive Director of the said corporation .....18/- Judgment 456 revn52.20 18 The manner in which the Government fund is utilized is for implementation of the project. Therefore, the applicant being Executive Director of the corporation was actively involved in supervision and scrutiny of tender and entitlement for grant of irrigation project. The trial court while rejecting the application considered these aspects and upon perusal of material placed on record concluded that there is sufficient material on record to frame charge against the accused. 16. Another ground raised in the application is that the applicant is exonerated from the departmental enquiry. 17. Perusal of the chargesheet shows specific allegation is only to favour the contractors, the tender costs was increased and the applicant was authorized to increase the costs to the extent of 5% but it was extended more than 5% showing that that the increase cost is less than .....19/- Judgment 456 revn52.20 19 5% and the proposal was approved by the applicant. In fact, it was more than 10.72%. The applicant has claimed discharge on the ground that he is exonerated from the departmental enquiry. 18. The law as to exoneration from the departmental enquiry is dealt with by Three-Judge Bench of the Hon’ ble Apex Court in the case of State of (NCT of Delhi) vs. Ajay Kumar Tyagi, reported in (2012)9 SCC 685 wherein it is held that the exoneration in the departmental proceedings ipso facto would not result into quashing of criminal prosecution. However, if the prosecution against an is solely based on finding in a proceeding and that proceeding is set aside by the superior authority in hierarchy, the very foundation goes and the prosecution may be quashed. However, that principle will not apply in the case of departmental enquiry as a criminal trial and .....20/- Judgment 456 revn52.20 20 the departmental proceedings are held by two different entities. It is observed by the Hon’ble Apex Court by referring the earlier judgment P.S.Rajya vs. State of Bihar, reported in AIR OnLine 1996 SC 54 which in relation to the effect of exoneration in the departmental proceedings or the criminal prosecution on identical charge. The said decision, therefore, does not lay down any proposition that on exoneration of an employee in the departmental proceedings, the criminal prosecution on the identical charge has to be quashed. It is well settled that the decision is an authority for what it actually decided and not what flows from it. 19. Coming to the aspect of exoneration from the departmental enquiry, it has to be seen whether charges in the departmental enquiry and in the present crime are .....21/- Judgment 456 revn52.20 21 identical one. The charges framed in departmental enquiry are as follows: nks”kkjksi dz- 1 xkslh[kqnZ izdYikP;k cka/kdkekph vankti=ds eatwj djrkauk o 91 fufonk fLod`rhlkBh v|;kor fdaer dk<rkauk fu;eckg; rjrqnh dsY;keqGs cka/kdkekps fdaerhr ok< gks.ks] eqG vankti=kdkrhy ckchO;frfjDr pqdhP;k ckch varHkwr d:u fufonsrhy dkekph v|;kor vankftr fdaer dk<.ks] R;kl vf/kdkj d{ksr ulrkauk eatwjh ns.ks] rlsp e- lk- ck- fu;ekoyhrhy fifjf’k”V 42 ifjPNsn 141(3) o 142] ifjPNsn 187 (vs) ifjPNsn 187 (2)ch fonHkZ ikVca/kkjs fodkl egkeaMG vf/kfu;e] 1997 e/khy izdj.k &2 e/khy dye 12 (4) izdj.k 4 e/khy dye 18 bZ o 19 (1) izdj.k 7 e/khy dye 68 (2) ‘kklu ifji=d dz lh,lVh 1091@lhvkj210@91 bekjrh&2 fn 19@2@1992 rlsp e-uk-ls (orZ.kwd) fu;e 1979 e/khy fu;e 3 (1 o 2) e/khy uewn tckcnkjhps ikyu dsys ukgh- 20. In the present case, the charges against the applicant is not only to the extent of showing the favour but also while sanctioning and accepting the bids, the .....22/- Judgment 456 revn52.20 22 incorrect details are mentioned and contravened the manual of the Public Works Department. 21. In the present case, charges against the applicant are that the applicant was working as Executive Director and criminal process against him is on the basis of investigation. The applicant being Executive Director shown favour to the contractor when he was incharge of the said project. The applicant ought to have acted in terms of the Maharashtra Public Workers Manual and should have taken necessary steps before allotment of tender work. The directions were given in PIL Nos.83 and 92/2012 by this court. Being the Executive Director of the VIDC, it was his duty to conduct the tendering process as per the norms prescribed in the Maharashtra Public Works Manual. However, he intentionally and deliberately did .....23/- Judgment 456 revn52.20 23 not perform his duty properly with an intention to help the contractors. It further revealed that the applicant had favoured successful contractors by way of illegally updating the tender by willfully adding the cost and illegally revising the estimated cost and caused loss to the government. He has also approved the illegal updation of tender cost at 10.72% at his own level, which was to be approved by the Principal Secretary, Water Resources Department, Government of Maharashtra. 22. Learned Senior Counsel for the applicant placed reliance on Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and anr, reported in (2020)9 SCC 636 wherein after referring the various judgments, the Hon’ble Apex Court has culled out the ratio of those decisions by referring its earlier judgment and observations in para No.38 in Radheshyam Kejriwal vs. .....24/- Judgment 456 revn52.20 24 State of West Bengal, reported in (2011)3 SCC 581, which are reproduced as follows: “38. The ratio which can be culled out from these decisions can broadly be stated as follows :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii)Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii)Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv)The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; .....25/- Judgment 456 revn52.20 25 (v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi)The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue underlying principle being the higher standard of proof in criminal cases”. .....26/- Judgment 456 revn52.20 26 23. Thus, in the present case, as observed earlier that charges in the departmental enquiry and charges in the present prosecution are not identical one. The trial court has already considered the material available against the applicant. The material on record shows that the applicant as the Executive Director was member of the executive committee of the corporation. The committee also formed to supervise whether Government funds to be utilized for objects of the corporation and implementation of its project. Therefore, the applicant was actively involved in examination of tender documents, supervision work, scrutiny of tender forms and entitlement of bidders for grant of works for the irrigation project. The court below has reversed these aspects in detail and rejected the application. There is reference of the alleged forgery in the chargesheet. .....27/- Judgment 456 revn52.20 27 There is nothing on record at this stage to show these allegations are frivolous or to show that charges can be framed against the applicant. 24. Thus, the act of the applicant is duly covered under Section 13(1)(d)(ii) of the P.C.Act. Perusal of the said Section shows that it applies if a public servant is set to commit the offence of criminal misconduct, if he (1) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage or; ((2) by abusing position as public servant obtains for himself or for any other person valuable thing or pecuniary advantage or; (3) while holding office as public servant, obtains for person any valuable thing or pecuniary advantage without any public interest. .....28/- Judgment 456 revn52.20 28 25. In the present case, it reveals that the applicant while holding the office as public servant favoured the contractors and misused his position. 26. Thus, after having sifted and weighed the evidence on record, it is clear that prima facie material is available against the accused to frame the charge against him. 27. This aspect is recently considered by the Hon’ ble Apex Court in the case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf & Ors, reported in AIR 2023 SC 2480 wherein it is held that law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled .....29/- Judgment 456 revn52.20 29 proposition of law is that at the stage of framing of the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court. 28. Thus, as far as discharge appliation is concerned, at this stage, considering facts of the present case, there is no sufficient material in the .....30/- Judgment 456 revn52.20 30 application for discharge. Hence, the application deserves to be dismissed and the same is dismissed. (URMILA JOSHI-PHALKE, J.) !! BrWankhede !! ...../-