Punjab-Haryana High Court
Manmohan Singh vs U.T.Chandigarh And Another on 4 March, 2013
Author: Sabina
Bench: Sabina
Crl.Misc.No.M- 4611 of 2013 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Crl.Misc.No.M- 4611 of 2013 (O&M)
Date of decision: 4.3.2013
Manmohan Singh
......Petitioner
Versus
U.T.Chandigarh and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.S.K.Sandhir, Advocate,
for the petitioner.
Mr.J.S.Toor, Advocate,
for U.T.Chandigarh.
****
SABINA, J.
This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No. 174 dated 22.7.2011 under Section 12 of the Prevention of Corruption Act, 1988 (the Act for short) registered at Police Station Sector 19, Chandigarh (Annexure P-1); order and chargesheet dated 5.9.2012 (Annexure P-2) and all the subsequent proceedings arising therefrom.
Prosecution story, in brief, is that on 11.8.2010 at about 5.30 P.M., complainant was present in her house at that time petitioner approached the complainant and offered her ` 50,000/- as bribe with a request that his transfer be cancelled. Crl.Misc.No.M- 4611 of 2013 (O&M) 2
Learned counsel for the petitioner has submitted that, in fact, the petitioner had been exonerated in the departmental proceedings and vide letter dated 22.11.2011 (Annexure P-7) it was recommended that the FIR in question be withdrawn. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Radheshyam Kejriwal vs. State of West Bengal and another 2011 (3) SCC 581, wherein it was held as under:-
"19. We find substance in the submission of Mr. Sharan. There may appear to be some conflict between the views in the case of Standard Charted Bank (supra) and L.R. Melwani (supra) holding that adjudication proceeding and criminal proceeding are two independent proceedings and both can go on simultaneously and finding in the adjudication proceeding is not binding on the criminal proceeding and the judgments of this Court in the case of Uttam Chand (supra), G.L. Didwania (supra) and K.C. Builders (supra) wherein this Court had taken a view that when there is categorical finding in the adjudication proceeding exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. Judgments of this Court are not to be read as statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle Crl.Misc.No.M- 4611 of 2013 (O&M) 3 that latter judgments pertain to cases under the Income Tax Act. 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;
(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 Crl.Misc.No.M- 4611 of 2013 (O&M) 4 not be allowed to continue underlying principle being the higher standard of proof in criminal cases.
In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is not contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court." Learned counsel for the Administration has submitted that the petitioner had faced departmental proceedings with regard to the charge levelled against him qua embezzlement of the funds with regard to fee books for scheduled castes girls students of 10+1 and 10+2 classes.
After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed.
Letter dated 22.11.2011 (Annexure P-7) reads as under:-
"Subject:- Regarding taking final decision on the charge sheet issued to Sh.Manmohan Singh Clerk office of Tehsil Welfate Officer, Ludhiana.
Regarding the Govt. letter No.1/43/2011- W.S./1393 daated 29.9.2011 and the proposal received vide your letter No.S-4/1673 dated 29.8.2011 and regarding the record received vide letter No.S-4/1169 Crl.Misc.No.M- 4611 of 2013 (O&M) 5 dated 30.9.2011.
1. The employee was given personal hearing after examining/ scruitinizing the proposal received from Secretary Welfare and the application dated 26.9.2011 made by Sh.Manmohan Singh Clerk under suspension. After examining the statement made by the employee and scrutinizing the record made available by you, the Government do not agree with the proposal sent by you and after checking and examining the entire record the following facts have emerged that in this case the entire action has been taken on the receiving the false, anonymous and baseless complaint dated 23/29.7.2010 and ignoring many facts in the inquiry report dated 5.8.2011, one sided action has been taken. Therefore, setting aside the entire actions vis. the transfer orders dated 20.7.2010 and the suspension order dated 16.8.2010 and the inquiry report dated 5.8.2011, Sh.Manmohan Singh Clerk (under suspension) is hereby exonerated from the charges.
2. The FIR No.174 dated 22.7.2011 registered against the employee be withdrawn immediately and the government may be informed."
Thus, in the present case, petitioner was exonerated in the departmental proceedings initiated on the basis of a complaint dated 23/29.7.2010. Petitioner was transferred vide order dated 20.7.2010 and was suspended vide order dated 16.8.2010. Crl.Misc.No.M- 4611 of 2013 (O&M) 6 However, the FIR in question has been lodged by respondent No.2 levelling allegations that petitioner had offered her bribe to cancel his transfer order. From Annexure P-7, it cannot be said that charge was also framed against the petitioner during departmental proceedings with regard to his offer of bribe to respondent No.2. Although as per Annexure P-7, FIR in question was ordered to be withdrawn but the said recommendation is not binding on the trial Court. Petitioner would be at liberty to take all the pleas available to him during trial. However, in the facts and circumstances of the present case, it would not be just and expedient to quash the FIR in question. The judgment relied upon by the learned counsel for the petitioner fails to advance the case of the petitioner as in the present case, prima facie it is not made out that the petitioner was facing trial for identical charge which he had faced in the departmental proceedings.
Accordingly, this petition is dismissed.
(SABINA) JUDGE March 04, 2013 anita