Orissa High Court
Sanjay Kumar Behera vs State Of Odisha (Cid & Cb) ....... Opp. ... on 1 February, 2024
AFR
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4625 of 2023
(In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
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Sanjay Kumar Behera ....... Petitioner
-Versus-
State of Odisha (CID & CB) ....... Opp. Party
For the Petitioner : Mr. Soumendra Pattanaik, Advocate
For the Opp. Party : Mr. P.K. Maharaj, ASC
Mr. Bharat Jalli, Advocate
(For the Informant)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
_________________________________________________________
Date of Hearing: 17.01.2024 : Date of Judgment : 01.02.2024
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S.S. Mishra, J.
1. The petitioner is seeking quashing of the criminal prosecution lodged against him, on the sole ground that he was subjected to Departmental Proceedings twice on the self-same allegation and he has been exonerated on both the occasions. 2 Therefore, on the self-same allegation, the criminal prosecution lodged against him is a futile exercise. There being no evidence likely to come up against him in the trial. He prays to terminate the criminal proceeding at this stage. He further submits that on the basis of the allegation and documents placed on record, no case, as such is made out against him to subject him to the rigor of trial.
2. The allegation against the petitioner in the charge sheet on which the trial Court has taken cognizance is that the complainant applied for the loan from State Bank of India, Ganjam Branch for purchasing of tractor, trailer and accessories. The accused persons have connived to defraud the complaint. Even after getting the loan amount disbursed in favour of the Proprietor of the vehicle Dealer M/s. Vashi Motors, Berhampur, the vehicle was not delivered to the complainant. The pre-requisite compliance for registration of the vehicle, the accused persons have connived with the R.T.O. staff as well.
3. The petitioner at the relevant time was employed as Motor Vehicle Inspector (MVI). It is alleged against him that he Page 2 of 14 3 has given fitness and compliance certificate under MV Act against non-existence, non-manufactured vehicles against which the loan was disbursed and the amount so disbursed by the bank has been misappropriated.
4. The F.I.R. was registered on 18.12.2007 and after investigation, charge sheet was laid down on 30.06.2016 and order of cognizance was passed by the learned S.D.J.M., Berhampur on 27.07.2016. After taking cognizance of the offence, the learned Court below have also framed charges against the petitioner on 26.04.2019 under Sections-406/ 467/ 471/166/167/120-B IPC. The petitioner is facing trial. From the record, it is evident that the petitioner has underwent rigors of Departmental Proceedings on the same charges twice over.
5. The first inquiry was conducted by the Additional Commissioner Transport (Tech.), STA, Odisha, Cuttack. Vide its inquiry report dated 22.11.2018 the petitioner was exonerated by the Inquiry Officer. The imputation of charges against the petitioner in the Departmental Proceedings reads as under:-
"That while working as Inspector of Motor Vehicles in the office of RTO, Ganjam, Chatrapur, he submitted an Page 3 of 14 4 Inspection Report for registration of a fictitious, non- existent and imaginary Tractor and Trailer Vide Registration No. OR-07N-1729 and No.OR-07N-1730 respectively. As per direction of the Hon'ble High Court of Orissa, Cuttack, CID, CB PS Case No.36 dated 18.12.2007 was registered against Sri Behera and the matter was investigated into by the CID/Crime, Odisha, Cuttack. During the course of investigation, prima facie evidence has been found against Sri Sanjay Kumar Behera, RTO for his offence U/s 406/420/408/471/394/120(B) IPC for which the case is likely to be charge sheeted, as intimated by SP, CID/Crime, Odisha.
That while posted as Inspector Motor Vehicles in the office of the RTO, Jagatsinghpur, he approached the Hon'ble High Court of Orissa for his anticipatory bail vide BLAPL NO. 1 5340/2010 in connection with the above referred case. Hon'ble High Court vide Order dated 28.10.2010 directed Sri Sanjay Kumar Behera to surrender before the Hon'ble Court of S.D.J.M., Berhampur. As per direction of the Hon'ble High Court, Sri Behera surrendered before the Court of S.D.J.M., Berhampur on 23.12.2010 and was granted bail on the same day. On verification by the CID/Crime, it was established that the accused Sri Sanjay Kumar Behera had not taken any leave or headquarters leaving permission from the RTO, Jagatsinghpur for attending the Court of SDJM, Berhampur on 23.12.2010. On further verification of documents by the CID/Crime in the office of the RTO, Jagatsinghpur, it came to the notice of the CID/Crime that on 23.12.2010, Sri Sanjay Kumar Behera had purportedly issued fitness certificates in respect of 17 different commercial vehicles. Such certificates were obviously issued without any physical inspection as Sri Behera was at Berhampur on 23.12.2010 for availing bail in the Court of SDJM, Berhampur. Thus, Sri Behera has violated Rule 3 of Odisha Government Servants Conduct Rules.1959."
6. The petitioner submitted his reply to the Inquiry Officer. One of the relevant part of the reply is worth mentioning, which reads as under:-
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"Rest of the 15 nos of vehicles has been inspected by Sri L.P. Pattanaik, Addl. R.T.O. I/C who was on duty in absence of M.V.I on 23.12.2010, which is clear from his signature on the body of the application form and verification of the Chassis no and Engine no of the Vehicles for renewal of F.C. (form No.II). Hence as alleged, issue of Fitness certificate without physical verification is not true. On the basis of records, he might have issued the computer generated fitness certificate in Form-H after his arrival from Berhampur on the same day. As such the charges of issuing fitness certificate to different commercial vehicles without any physical inspection by him purportedly are not true and quite baseless and fabricated."
7. The Inquiry Officer after giving due opportunity to the petitioner and considering the evidence brought on record arrived at a finding that the charges framed against him could not be proved. While recording so he gave the following findings :-
"In view of the above it is established that, Sri Behera had not inspected the vehicles in question which have been issued with Fitness Certificated on 23.12.2010, but inspected by Sri. L P Pattanaik MVI(I/C) on that date in 15 cases and in 02 cases Buses were jointly inspected by DCT(C/Z) and MV(I/C) as verified from the Inspection check slips which has not been verified at all by DSP, CID/CB. As for generation of computerized Fitness Certificate pass word necessary, which was with Sri Behera and had not shared with MVI(I/C) later on FC was issued under the ID & pass word of Sri Behera and he has countersigned the check slips as a token of acceptance of the check slips as FC had been issued with his ID & pass word. In this process there is no illegality involved and hence the charges are not sustainable. Further Sri R N Mahapatra, then DSP, CID/CB the investigating officer, Sri Vishal Vyas the complainant and Sri Malkait Singh of M/S International(Sonalika) Tractors Page 5 of 14 6 did not appear before the enquiring officer in spite of 03 dates, their reports/complaints could not corroborated as such further and enquiry has been completed without their deposition as a matter natural justice."
8. After the first inquiry was concluded, it appears on the same imputation of charges, another senior IPS officer namely Addl. D.G. of Police was assigned to conduct further Departmental Proceedings. The Inquiry Officer conducted the inquiry and vide his report dated 28.02.2022 arrived at a finding that the Fitness Certificate although was not issued by the Delinquent Officer, but he has only counter signed in those Certificates. Relevant part of the report reads as under:-
"From the statements of PWs made during their examination-in-chief, cross-examination, documents exhibited, and written defense submitted by the charged officer, the charges framed against the charged officer Sri Sanjaya Kumar Behera, Ex-IMV, of RTO Chhatrapur have not been proved. The dealer had produced the tractor along with required documents for inspection by MVI. The pencil print of Chasis had been taken by MVI. In the meantime, M/S International Tractors Ltd. Has already deposited the full and final amount of the loan outstanding against Vishal Vyas at SBI Ganjam Branch. The Charged Officer had taken leave to attend the Court of SDJM. The Charged Officer upon his return form Court had counter signed the fitness certificate in respect of 17 vehicle, which were inspected earlier by Jr. MVI. Hence the charges against the Charged Officer have not been proved."Page 6 of 14 7
Pursuant to the second report, the Disciplinary Authority namely the Principal Secretary to Government in the Department of Commerce and Transport (Transport) Department vide its order dtd. 08.08.2023 has warned the delinquent officer namely the petitioner. The extract of the same order is reproduced here:-
"And whereas after careful consideration of the findings of the Inquiring Officers in respect of the charges leveled against him, Government have been pleased to finalize the Disciplinary Proceedings with warning to the Delinquent Officer Sri Sanjay Kumar Behera to be careful in future."
Therefore, the submission of the learned counsel for the petitioner that the petitioner has been completely exonerated from the Departmental Inquiry may not be correct as the Departmental Proceedings ended with a warning to the petitioner.
9. Learned counsel for the petitioner has relied upon various judgments including one passed by the co-ordinate Bench of this Court in Prof (Dr.) Pusparaj Dash versus State of Odisha and another reported in 2023(1) OLR 775. Emphasizing paragraph-7, he submitted that in the similar circumstances the co-ordinate Bench of this Court has given an indulgence and quashed the entire criminal proceeding which reads as under:
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"7. The question is, whether, the criminal prosecution vis-à-vis the petitioner is to be quashed due to his exoneration from the charges levelled in the disciplinary proceeding? The law well settled that a disciplinary action is independent and exclusive and can continue irrespective of a criminal action and vice versa. The outcome of the disciplinary proceeding is not to influence the result in a criminal trial. So to say, the action under the law to penalize an offender and also to departmentally proceed against him is independent to each other. In the present case, the Court is to examine, whether, in the facts and circumstances of the case, after exoneration in departmental enquiry, the petitioner should still be subjected to a criminal action. In Dr. Minaketan Pani (supra), this Court while dealing with an allegation of tampering of marks held and concluded that there was no direct involvement of the petitioner, who was censured though the major charges could not be established and there the period of suspension was treated as duty. It was a case of manipulation of marks in respect of an examination of HSC of the year 2007 and therein, the petitioner, who was the Secretary, Board of Secondary Education, Orissa was made to face the inquiry and for having no direct role to play was exonerated of the main charges although censured and in that background, the Court concluded that with lessor standard of proof, the charges could not be established in enquiry on same set of facts, whereas, higher standard of proof is needed for a criminal case, it would not be justified to subject the petitioner to face the criminal trial. It was held therein that the petitioner despite being censured was honourable exonerated in the Departmental Proceeding."
10. To buttress his argument, learned counsel for the petitioner has further relied upon the judgment of Bombay High Court in Keshav Vrs. State of Maharashtra, Through police station officer and another reported in 2022 SCC OnLine Bom Page 8 of 14 9 1314. He has relied on paragraph-8 of the judgment which reads as under:-
"8. In the present case, we find that allegations made in the criminal complaint are similar and identical to the allegations made against this applicant in the departmental enquiry proceedings. In other words, the foundation of the criminal complaint made against the present applicant is a same set of allegations which constituted charge no. 1 levelled against the applicant in the departmental enquiry proceedings. The departmental enquiry proceedings insofar as charge no. 1 is concerned has gone in favour of the applicant and it has, in our view, wiped out the very basis of the criminal complaint filed against this applicant. It then does not appeal to reason to say that while the officer has committed no misconduct on the basis of one set of allegations, the officer has prima-facie committed criminal offence on the basis of the same set of allegations. It is pertinent to mention here that the criminal complaint filed against the applicant by informant-Shri Milind Totare does not contain any more allegations than what formed the basis of charge no. 1 levelled against the applicant in the department enquiry proceedings held against him in which the applicant has been exonerated of charge no.1. It then follows that the criminal investigation being carried out against the applicant in its present form cannot continue. But, at the same time, if any other enquiry is made by the investigating Officer and some new material constituting new offence is discovered, the Enquiry Officer would always be at liberty to book the applicant for the new offence prima-facie found against him. But till that time, the complaint in the present form and the investigation based on it cannot be allowed to continue or otherwise it would be nothing but abuse of process of law."
11. To contradict the aforementioned submission, learned counsel for the State submitted that in the instant case charges have already been framed and the trial Court is proceeding with Page 9 of 14 10 the case. Therefore, at this stage seeking quashing of the entire proceeding is not sustainable under law. He further submits that the first Departmental Inquiry was initiated prior to the registration of F.I.R., however, after the charge-sheet was filed, the first Departmental Proceedings concluded on 24.10.2016. Thereafter, on the basis of the records, investigation report under Section 173 Cr.P.C. was filed and the Court below has already taken cognizance for the offences and subsequently on 26.04.2019 charges have already been framed against the accused persons. After the charges were framed and the trial of the case started, the second Departmental Inquiry purported to have been initiated on 06.10.2020, which is eventually concluded on 28.02.2022. The standard of proof in both these proceedings which were initiated are completely different. Therefore, exoneration in the Departmental Proceedings would not enure to the benefit of the petitioner. Moreover, petitioner's case is not falling under any of the illustrations postulated by the Hon'ble Supreme Court in the judgment of State of Haryana and others versus Bhajan Lal and others reported in 1992 Supp(1)SCC 335.
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12. The petitioner relying upon the principle laid down by the Supreme Court in the case of RadheShyam Kejriwal versus State of West Bengal & another, (2011)3 SCC 581 contended that once in the parallel proceedings drawn up by the Department, accused is an exonerated of the criminal proceeding on the self-same allegation is not sustainable under law. The Hon'ble Supreme Court in the judgment RadheShyam (supra) and the subsequent judgments as well has laid down the law that once in a statutory adjudication proceedings, if the accused has been exonerated, the criminal prosecution on the same ground is not sustainable and the entire exercise is a futility. But the instant case is different. In the instant case the petitioner has suffered Departmental Proceedings, which cannot be equated with statutory adjudication proceedings. The Hon'ble Supreme Court in the case of (NCT of Delhi) v. Ajay Kumar Tyagi, reported in (2012) 9 SCC 685 held as under:-
"24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya case [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] . In fact, there are precedents, to which we have referred to above, that speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in a department Page 11 of 14 12 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 and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in 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.
26. For the reasons stated above, the order [Ajay Kumar Tyagi v. State, (2008) 3 DLT (Cri) 788] of the High Court is unsustainable, both on facts and law. The accused shall appear before the trial court within four weeks from today. As the criminal proceeding is pending since long, the learned Judge in seisin of the trial shall make endeavour to dispose of the same expeditiously and avoid unnecessary and uncalled for adjournments."
13. In the instant case, there are specific allegation leveled against the petitioner and the allegation of criminal conspiracy under Section 120(B) of IPC has also been invoked. Therefore, quashing of the entire proceeding at this stage when the trial is proceeding is not called for, particularly on the ground that the petitioner has been exonerated in the Departmental Proceedings. It is worthwhile to mention here that in the second Page 12 of 14 13 Departmental Proceedings the Inquiry Officer has found from the record that the petitioner has counter signed in the documents which are alleged to be forged documents. Therefore, the true facts could only be elucidated through a free and fair trial.
14. In the instant case, the F.I.R. was lodged on 18.12.2007 whereas, charge sheet could only be filed on 30.06.2016 and cognizance order was passed on 27.07.2016. Although the charge was framed on 26.04.2019 the trial is moving in snail's pace. Needless to mention that every accused has a Constitutional Right of speedy trial. In the instant case, the petitioner has undergone the rigors of two Departmental Proceedings and has been undergoing the procedure of criminal proceeding since 2007. The process itself is punishment. The criminal law was set into motion against the petitioner in 2007 and since last 17 years the process is on. Therefore, I am of the view that the learned S.D.J.M., Berhampur should do well to see that the trial in G.R. Case No. 1164 of 2007 be concluded as expeditiously as possible, preferably within three months hence. Page 13 of 14 14
15. No interference is called for in this petition under Section 482 Cr.P.C. Hence, it is dismissed with the aforementioned direction to the learned trial Court.
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S.S. Mishra (Judge) Signature Not Verified Digitally Signed Signed by: MONALISA SWAIN Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Feb-2024 18:26:48 Page 14 of 14