Allahabad High Court
Rajendra Prasad Yadav vs State Of U.P. And Another on 16 August, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 27.07.2023 Delivered on 16.08.2023 Neutral Citation No. - 2023:AHC:163860 Court No. - 78 Case:- APPLICATION U/S 482 No. - 11423 of 2021 Applicant:- Rajendra Prasad Yadav Opposite Party:- State of U.P. and Another Counsel for Applicant :- Amit Daga,Md. Muzzammil.I.Qureshi Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. This application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings, including charge-sheet dated 27.10.2020 and summoning order dated 04.01.2021, of Special Session Trial No.35 of 2021 (State vs. Arvind and Ors.), Case Crime No.213 of 2006, under Section 34, 409, 420, 467, 468, 471, 120-B IPC and Section 13 (1)D and 13 (2) Prevention of Corruption Act, P.S. Manjhanpur, District Kaushambi, pending in the Court of Special Judge (Prevention of Corruption Act), Special Court No.3, Varanasi.
2. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri I. Qureshi, learned counsel for the applicant and learned A.G.A. for State and perused the record.
3. According to prosecution version, in the year 1999 the Government of India has launched a scheme 'Swarnajayanti Gram Swarojgar Yojana.' for the welfare of the families living below poverty line. It was alleged that in the year 2003-04 several irregularities were committed in publication and purchase of books/ booklets and other related material in the said scheme. In enquiry, it was found that all the materials were purchased from 'Uttar Pradesh Upbhokta Sahkari Sangh' by the Chief Development Officer, the Project Director and the other officials by taking aid of the Government Order dated 19.07.1976, without inviting any tender/quotations, whereas, in the said Government Order, it was stated that said Government Order is applicable to the purchases made from panchayat industries. It was alleged that the Chief Development Officer, District Kaushambi, Project Director Rajendra Prasad Yadav (applicant) and their associate officials have interpreted the Government Order dated 19.07.1976 and the Order dated 08.02.1996, issued by Director Women Welfare, in wrong way and committed financial irregularities and thereby caused loss of Rs. 21,85,000/- to the public exchequer. Certain other allegations were also levelled and it was stated that the supplied material was of low quality. According to prosecution, the then Chief Development Officer Arvind Singh, Project Director R.P. Yadav (applicant), accountant Vijay Kumar Misra, Nazir Saiyad Moh. Mustufa and Arvind Kumar, Manager Uttar Pradesh Upbhokta Sahkari Sangh have flouted the Government orders regarding purchase of printed material and other articles and thereby caused loss of public funds of Rs.21,85,000/.
4. Learned Senior Advocate submitted that no prima facie is made out against the applicant and that the impugned proceedings are nothing but abuse of the process of court. At the relevant time the applicant was working as Project Director and he has not committed any illegality or irregularity. All the materials were printed and purchased as per the Government orders, applicable at that time. Referring to Government order dated 07/08/2006 and several other government orders, it was submitted that the act of the applicant was bonafide and in accordance with the Government Orders.
5. It is further submitted that in the light of the Government Orders, the departmental proceedings were initiated against the applicant and after conducting a detailed enquiry, the Enquiry officer found that only the purchase of materials worth Rs.21,85,000/- was made without following financial procedure and without inviting tender/quotations. After the said inquiry report, the applicant has submitted his representation and that after being satisfied by the same, the competent authority has found that applicant was innocent and he was exonerated of all the charges levelled against him in the departmental proceedings. The copy of proceedings of department proceedings has been annexed as Annexure-11 to the application. It was submitted that while departmental proceedings were going on, the instant criminal proceedings were initiated against applicant and others, which is nothing but abuse of the process of court. Learned Senior Advocate has referred facts of the matter and several Government Orders and report of departmental proceedings and submitted that no prima facie case is made out against applicant.
6. It was also pointed out that co-accused Arvind Singh, the then Chief Development Officer, has filed an application under Section 482 Cr.P.C. for quashing of charge-sheet and proceedings and that application was dismissed by this Court vide order dated 24.09.2021 but against that order, co-accused Arvind Singh has filed an S.L.P. No.9355 of 2021 before the Hon'ble Apex Court, wherein, it has been directed by the Hon'ble Apex Court that no coercive action shall be taken against petitioner and that matter is pending before the Apex Court. Earlier, the applicant has filed a writ petition for quashing of FIR, wherein, it was directed by this Court that applicant shall not be arrested till the conclusion of investigation. It was submitted that as the applicant has been acquitted in the departmental proceedings thus, in view of law laid down in case of Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police, EOW, CBI & ANR. 2020 9 SCC 636, the applicant cannot be prosecuted for the alleged offences. It was submitted that in view of aforesaid, no prima facie case is made out against the applicant and thus, the impugned proceedings are liable to be quashed.
7. Learned A.G.A. has opposed the application and argued that at the relevant time, applicant was working as Project Director and he was primarily involved in purchase of the printed material and other articles and that various financial irregularities and illegalities were committed by applicant and co-accused persons and thereby, they have caused loss of Rs.21,85,000/- to the public exchequer.
8. I have considered rival submissions and perused the record.
9. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint/ charge sheet and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet/ complaint may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C.. If a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare case.
10. The Apex Court in the decision in R.P. Kapur v. State of Punjab A.I.R. 1960 S.C. 866, held that the High Court could not embark upon an enquiry as to whether the evidence is reliable or not while exercising the power under Section 482 Cr.P.C. In State of M.P v. Awadh Kishore Gupta & Ors. (2004) 1 SCC691, the Court held that the High Court could not embark upon an enquiry as to whether the evidence is reliable or not as that would be the function of the Trial Court. In Dr. Monica Kumar & Anr. v. State of Uttar Pradesh & Ors. (2008) 8SCC 781, the Court held that the inherent power under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. In Shiji alias Pappu and Ors. v. Radhika and Another AIR 2012 SC 499, a two Judge Bench of the Apex Court held thus:
"...plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 4 (2004) 1 SCC 691 5 (2008) 8 SCC 781 6 AIR 2012 SC 499 Page 9 of 28 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law".
11. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.
12. In case of Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police(supra), Hon'ble Apex Court held as under:
"7. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1, the question before the Court was posed as follows:-
"3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission." This Court then went on to state:
"17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it." This being the case, the Court then held:
"23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. 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. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." In Radheshyam Kejriwal vs. State of West Bengal and Another, (2011) 3 SCC 581, this Court held as follows:-
"26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27) "... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined." xxx xxx xxx
29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.
xxx xxx xxx
31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case." After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:-
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings 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 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; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases." It finally concluded:
"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
13. Keeping the aforesaid position of law in view, in the instant matter, it may be seen that according to prosecution version, in 'Swarnajayanti Gram Swarojgar Yojana.' scheme several illegalities and financial irregularities were committed in publication and purchase of books/ booklets and other related material procured for the said scheme. During investigation, it was found that the materials worth Rs.21,85,000/- was purchased by flouting the Government Orders and without inviting any tender/quotations. The applicant being Project Director and the co-accused Arving Singh CDO, were primarily responsible for the said purchases. The contention that they made purchase by taking aid of Government order dated 07/08/2006, cannot be a ground to quash the instant proceedings, as prosecution version is that the said Government Order was not applicable in procurement from the agencies, from which the alleged material was purchased by the applicant and the co-accused persons. Further, there is also allegation the material purchased was of low quality. As per prosecution version, the applicant and co-accused have deliberately misinterpreted the Government Orders and committed breach of trust and financial irregularities and thereby caused loss of Rs. 21,85,000/- to the public exchequer. The application of co-accused Arvind Singh, the then Chief Development Officer, under Section 482 Cr.P.C. for quashing of charge-sheet and proceedings, has already been dismissed by this Court vide order dated 24.09.2021, however, it was stated that the matter is pending before the Hon'ble Apex Court. In case of Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police (supra), it was observed that adjudication proceedings and criminal prosecution can be launched simultaneously and decision in adjudication proceedings is not necessary before initiating criminal prosecution and that adjudication proceedings and criminal proceedings are independent in nature to each other. It was further observed that the finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution and 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 and it is only in case of exoneration where on merits the allegation is found to be not sustainable at all and the person held innocent, the criminal prosecution on the same set of facts and circumstances cannot be allowed to continue. Thus, there is no blanket preposition that in every case, where the accused has been exonerated in departmental inquiry, the criminal proceedings against such accused can not continue. It was observed by the Hon'ble Apex Court the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. Here it would be pertinent to mention that in the said case Ashoo Surendranath Tewari (supra) the adjudicating authority was Chief Vigilance Commissioner. In the instant case, as noticed above, the applicant was found guilty in the departmental proceedings, however, after considering his representation, he was exonerated. In view of nature of allegations, the matter requires determination of questions of facts, which is not permissible under jurisdiction of section 482 CrPC. The contentions raised by the learned Senior Advocate require determination of questions of fact, which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala-fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
14. After considering arguments raised by the learned counsel for parties and perusing the charge-sheet and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 CrPC. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C.. Considering material on record and position of settled law as referred above, this court is of view that no case for quashing the impugned proceedings and summoning order is made out.
15. The application filed under section 482 CrPC is hereby dismissed.
Order Date :- 16.08.2023 Neeraj.