Madhya Pradesh High Court
Balak Singh Thakur vs The State Of Madhya Pradesh Judgement ... on 23 January, 2014
1
W.P. No.7592/2013 (s)
23/1/2014
Smt. Gulab K. Patel, learned counsel for the petitioner.
Shri S.S. Bisen, learned Government Advocate for the
respondent/State of M. P. and its functionaries.
With consent matter is heard finally.
Order dated 19.12.2012 is being assailed by the petitioner; whereby, claim of the petitioner for settlement of his wages of suspension period has been rejected on the ground that against the order of acquittal recorded in Special Case No. 1/1999 by Special Judge, Sagar under the Prevention of Corruption Act, First Additional Sessions Judge, Sagar an appeal has been preferred in the High Court.
The challenge to the impugned order is on the ground that having been acquitted of an offence under Section 13 (1) (e) and 13 (2) of Prevention of Corruption Act, 1988, filing of an appeal against the order of acquittal does not tantamount to judicial proceeding as would prevent the petitioner from claiming his lawful right of wages.
Undisputed facts are that, petitioner, a Sub Engineer in Public Works Department was proceeded against for an offence under Section 13 (1) (e) and 13 (2) of Prevention of Corruption Act, 1988. In pursuance whereto the petitioner was placed under suspension by order dated 18.8.1999. The suspension order was later on revoked on 21.3.2013, during pendency of the criminal prosecution, with a direction that period of suspension will be decided after completion of criminal case. The petitioner thereafter was acquitted of offence under Section 13 (1) (e) and 13 2 (2) of 1988 Act vide order dated 22.10.2010. Whereafter petitioner filed an application for regularization of suspension period; whereon vide impugned communication the petitioner was informed that since an appeal has been preferred against the acquittal, the period of suspension shall be decided after final decision in the appeal.
Contention of the petitioner that having been acquitted for the criminal case, it cannot be said that the proceedings are pending against the petitioner.
Respondents in their turn have, however, embedded to the decision that since appeal has been preferred against the acquittal, the petitioner is still under the cloud and, therefore, not entitled for finalization of suspension period.
Question is whether an appeal against an acquittal can be said to be a continuation of criminal case.
Section 2 (i) of the Criminal Procedure Code, 1973 defines expression "judicial proceeding" "includes any proceeding in the course of which evidence is or may be legally taken on oath." The definition as apparent is not exhaustive. Therefore, before proceeding can be held to be a judicial proceeding, it must be found that in the course of that proceeding evidence is or may be legally taken on oath. If evidence could not be taken legally on oath it would not judicial proceeding. (Please see Sheo Ram v. State (AIR 1964 Allahabad 290). Furthermore,a criminal proceeding is initiated when a criminal law is set at motion against a person on the basis of an information to the police that a person has committed a cognizable offence leading to an 3 investigation into the accusation against the person and filing of report under Section 173 of the Cr. P.C whereupon an accused is tried of an offence registered leading to the conviction or the acquittal, as the case may be. With the acquittal the charges of commission of offence gets washed of. A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding.
The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re enforced by the orders of acquittal. The contention, therefore, put forth by the respondents that the filing of revision against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceeding does not reason with the provisions as they stand under law.In the considered opinion of this Court, after acquittal, which lead to an affirmation of the innocence of the accused, an appeal or revision, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings.
In this context regard can be had of judgment of Division Bench of High Court of Himachal Pradesh in Shri Surinder Kumar v. State of Himachal Pradesh and another (1985 (3) SLR 254).
In view whereof, since with the acquittal of petitioner for an offence under Section 13 (1) (e) and 13 (2) of 1988 Act, his suspension which was based on criminal proceedings stands 4 unjustified. The respondents are directed to settle the same within a period of 3 months from the date of communication of this order.
Petition is allowed to the extent above. No costs.
(SANJAY YADAV) JUDGE Vivek Tripathi