Court No. - 86
Case :- APPLICATION U/S 482 No. - 6246 of 2000 Applicant :- Hira Mani Singh Opposite Party :- State of U.P. and Others Counsel for Applicant :- S.K.Yadav,Ram Chandra Yadav Counsel for Opposite Party :- Govt. Advocate
Hon'ble Umesh Kumar,J.
Heard learned counsel for the applicant and learned A.G.A.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash the criminal proceeding initiated on the basis of charge sheet submitted by the opposite party no.2 on 8.12.1996 giving rise to case crime no. 6914 of 1999 under Section 409 I.P.C. before opposite party no.3 with an alternative prayer to stay the further proceedings of the above mentioned case.
Learned counsel for the applicant submits that perusal of the inquiry report shows that there is no offence is made out against the applicant as leveled against him about the occurrence in question and also about the First Information Report. As per the inquiry report the minor punishment have been imposed upon the applicant for only Rs.20/- for taking the fair of Rickshaw, therefore once a punishment have been imposed upon the employee/ persons then about the same allegations further any punishment cannot be imposed by way of criminal proceedings, therefore, the criminal proceedings initiated on the basis of charge sheet submitted by the opposite party no.2 cannot be sustained in the eyes of law.
In support of his argument, learned counsel for the applicant referred a judgement passed in Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI & Anr, 2020 Law Suit (SC) 568, relevant paragraph is quoted hereunder:
" in a case of exoneration in departmental proceedings on merits and where the allegation is found to be not sustainable at all and the person is held innocent then criminal prosecution on the same set of facts and circumstances cannot be allowed to continue."
The standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein. The criminal case cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the Enquiry Officer based on those evidence.The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue.
It is a case of financial irregularity and embezzlement, which has been committed by the present applicant obtaining false T.A. The statement of the applicant was recorded by the enquiry officer, moreover, no statement has been recorded in the trial Court, hence the argument placed by the learned counsel for the applicant, cannot be entertained at this stage.
In Bhagwan Singh vs Deputy Commissioner And Anr. on 2 November, 1961,the Apex court has held that, "The object of Departmental proceedings is to ascertain, whether the officer concerned is a fit person to be retained in service. On the other hand, the object of the criminal prosecution is to find out whether the ingredients of the offence as defined in the Penal statute have been made out. The area covered by the two proceedings is not exactly identical".
In another case of Kishan Singh Through Lrs. Vs. Gurpal Singh & Others 2010 (8) SCALE 205, the Apex court held that, "since a crime is an offence against the State. A criminal case is tried by a Judge who is trained in law, while departmental proceeding is usually held by an officer of the department who may be untrained in law".
While answering the question, whether a person exonerated in the departmental enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, Apex court in the case of State v. M Krishna Mohan (2007) 14 SCC 667,came to the conclusion that exoneration in departmental proceeding ipso fact would not lead to the acquittal of the accused in the criminal trial.
Similar observation was made by the Apex court in the case of Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC 225, where quashing was sought for on two grounds and one of the grounds urged was that the accused having been exonerated of the charge in the departmental proceeding, the prosecution is fit to be quashed. Said submission did not find favour with this Court and it rejected the same .
In State of N.C.T. of Delhi Vs Ajay Kumar Tyagi (for short "NCT Delhi case"), a three Judge Bench was called upon to answer a reference whether a person exonerated in departmental proceeding, no criminal proceedings can be launched or continued. The issue for consideration by the Bench reads thus:
"The facts of the case are that the respondent has been accused of taking bribe and was caught in a trap case. We are not going into the merits of the dispute. However, it seems that there are two conflicting judgments of two Judge Benches of this Court; (I) P.S. Rajya Vs. State of Bihar reported in (1996) 9 SCC 1, in which a two Judge Bench held that if a person is exonerated in a departmental proceeding, no criminal proceedings can be launched or may continue against him on the same subject matter, (ii) Kishan Singh Through Lrs. Vs. Gurpal Singh & Others 2010 (8) SCALE 205, where another two Judge Bench has taken a contrary view."
On having considered the authority on the proposition of law, Supreme Court, answered the reference in the following terms:
"We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy."
In P.S. Rajya Vs. State of Bihar (for short ''PS Rajya' case) the question before the Court was as to whether a criminal proceeding can be persuaded when the person has been exonerated in departmental proceeding.
The Court clarified in para 23 that "...We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued..." In other words the Court did not lay down that an exoneration of an employee in departmental proceedings, the criminal prosecution has to be quashed.
In NCT Delhi, the Court, therefore, was of the opinion that the prosecution was not terminated in P.S. Rajya case on the ground of exoneration in the departmental proceedings but on the peculiar facts. The observation is as follows:
"The decision in the case of P.S. Rajya (supra), therefore does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed. It is well settled that the decision is an authority for what it actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra), the Supreme Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground."
In the recent judgement of Ramesh Chandra vs State Of U. P. Criminal Misc. Anticipatory Bail Application No. 4411 of 2021 decided by this Court has taken into consideration the aforesaid decisions and has followed the dictum laid down by the Apex Court in NCT Delhi (supra) wherein it has been held that standard of proof in departmental proceedings is lower than that of criminal prosecution. It is also equally settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein.
In view of discussion made here in above, I am of the opinion that criminal case cannot be rejected/quashed on the basis of the evidence in the departmental proceeding or the report of the Enquiry Officer based on those evidence and there is no bar for departmental and criminal prosecution taking simultaneously and also that exoneration in the departmental proceedings cannot be a sole ground/basis for quashing of the criminal prosecution.
Accordingly, the present application is rejected. Order Date :- 22.10.2021//Fhd