Karnataka High Court
Mr. Hampanna S/O Yamanappa Lamani vs State Of Karnataka on 18 May, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:12090
CRL.P No. 100991 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 100991 OF 2023
BETWEEN:
MR. HAMPANNA
S/O YAMANAPPA LAMANI
AGED ABOUT 47 YEARS
OCC: EXECUTIVE ENGINEER IN T.P.
YELBURGA
R/O GADGERI TANDA
TALUK: YELBURGA
DISTRICT: KOPPAL
CORRECT ADDRESS
H.NO.22-11, SEDAM ROAD
OPP. UNIVERSITY 1ST GATE
SIDDESHWAR COLONY
GULBARGA - 585 106.
... PETITIONER
(BY SRI N.D.GUNDE, ADVOCATE)
Digitally
signed by
VISHAL
VISHAL
NINGAPPA
NINGAPPA PATTIHAL
AND:
PATTIHAL Date:
2023.10.18
12:22:44
+0530
STATE OF KARNATAKA
BY KUKUNOOR POLICE STATION
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD -580 001.
... RESPONDENT
(BY SMT. GIRIJA S.HIREMATH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
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NC: 2023:KHC-D:12090
CRL.P No. 100991 of 2023
16.10.2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC-YELBURGA AT KOPPAL IN CC NO.125/2017 THEREBY
TAKING COGNIZANCE FOR THE OFFENCES PUNISHABLE U/S.
465, 468, 471, 406, 409, 420, 120-B OF IPC AS AGAINST
PETITIONER ACCUSED NO.4
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.125/2017, in particular, the order dated 16.10.2017, by which the District Court takes cognizance of the offences punishable under Sections 465, 468, 471, 406, 409, 420 and 120B of the IPC.
2. Heard Sri N.D.Gunde, learned counsel for petitioner and Smt. Girija S. Hiremath, learned High Court Government Pleader for the respondent - State.
3. Facts in brief, germane are as follows:
A complaint comes to be registered by the Executive Officer of the Taluk Panchayath, Yelburaga on 28.10.2015, for the afore-quoted offences. The allegations against the present petitioner is that, as per the directions of the Chief Executive Officer, Zilla Panchayath, Koppal, without undertaking any work -3- NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 bills had been raised by several accused and funds had been released in favour of the contractors in Karmudi Grama Panchayath for the financial years 2010-11 and 2011-12. In effect, it is alleged that it is bogus bills that were submitted without undertaking any work. This fact gave raise to two proceedings, one, the registration of a complaint, which become a crime in crime No.146/2015 and another a Departmental Enquiry being instituted on the same set of facts.
The police after investigation in crime No.146/2015, filed a charge sheet against all the accused. The petitioner in the subject petition is accused No.4 working as Executive Engineer at the relevant point in time. The learned Magistrate takes cognizance of the offences in terms of the order dated 16.10.2017. Taking of cognizance by the learned Magistrate is what has driven the petitioner to this Court in the subject petition.
4. Learned counsel for the petitioner would contend that on the same set of facts, the Departmental Enquiry was conducted and after a full blown proceedings, the petitioner have been exonerated by the Enquiry Officer in his report. The -4- NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 Secretary of the Rural Development and Panchayath Raj, the Disciplinary Authority has accepted the report and closed the proceedings against the petitioner. He would therefore, contend that the impugned criminal case would become an abuse of the process of the law. He would seek quashment of the entire proceedings.
5. On the other hand, learned counsel for High Court Government Pleader - Smt. Girija S. Hiremath, would seek to defend the action of the registration of the crime and the continuance of the proceedings, contending that the two are entirely different. Merely because the petitioner has been exonerated in the Departmental Enquiry would not mean that the criminal proceedings have to be quashed. She would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.
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7. The afore-narrated facts are not in dispute and requires no reiteration. The allegation is, the submission of the bogus bills without undertaking any work relating to Karmudi Grama Panchayath for the financial years 2010-11 and 2011-
12. The proceedings are one on the Departmental side by submitting a charge sheet and the other setting the criminal law into motion.
8. On the departmental side, an Enquiry Officer is appointed to conduct the Departmental Enquiry to conduct a detailed enquiry and as a result of which, exonerated the petitioner in a full blown proceedings. It is accepted by the Disciplinary Authority on 05.08.2016 and result of such acceptance is the dropping of the entire proceedings against the petitioner on the departmental side. The order of the Disciplinary Authority reads as follows:
"¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: UÁæC¥À 110 «¸Éé 2013 ¨ÉAUÀ¼Æ À gÀÄ ¢£ÁAPÀ:05.08.2016 ¥Àæ¸ÁæªÀ£ÉAiÀÄ°è «ªÀj¹gÀĪÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è, F PɼÀPÀAqÀ C¢üPÁjUÀ½UÉ PÀæªÀiÁAPÀ UÁæC¥À 110 «¸Éé 2013 ¢£ÁAPÀ: 05.06.2014 gÀAzÀÄ PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉêÁ (ªÀ¤ªÉÄÃ) 1957gÀ ¤AiÀĪÀÄ 11 gÀrAiÀÄ°è PÁgÀt PÉüÀĪÀ £ÉÆÃnøï eÉÆvÉ eÁj ªÀiÁrgÀĪÀ DgÉÆÃ¥ÀUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ, CªÀgÀÄUÀ¼À «gÀÄzÀÞzÀ DgÉÆÃ¥À¢AzÀ PÉÊ©qÀ¯ÁVzÉ."-6-
NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 It is trite that in a Departmental Enquiry, the allegations are required to be proved on preponderance of probabilities and in a criminal trial, the allegations are to be proved beyond all reasonable doubt. If in proceedings in which probabilities are preponderant, the guilty can not be established against the petitioner. It can be hardly established in a criminal trial, which requires to be proved beyond all reasonable doubt. Therefore, the order taking cognizance dated 16.10.2017, by the concerned Court and the proceedings in C.C.No.125/2017, for the afore-quoted offences would tumble down.
9. The view of mine in this regard is fortified by the judgment rendered by the Apex Court in the cases of P.S. RAJYA v. STATE OF BIHAR reported in (1996) 9 SCC 1, RADHESHYAM KEJRIWAL V. STATE OF WEST BENGAL reported in (2011) 3 SUPREME COURT CASES 581 and ASHOO SURENDRANATH TEWARI V. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI reported in (2020) 9 SUPREME COURT CASES 636. The afore-quoted judgments are followed by this Court in the case of A.L. JAYARAMU V. STATE OF KARNATAKA reported in 2021 SCC ONLINE KAR 15854 -7- NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 "13. ....... Later, the Apex Court though not referring to P.S.RAJYA held in identical lines in the case of Radheshyam Kejriwal v. State of W.B, that standard of proof in a criminal case is much higher than that of adjudication in a departmental enquiry. If in a departmental inquiry, the competent authorities have failed to drive home the charge, it would be improper to permit criminal trial any further. This view of the Apex Court in the aforesaid case is reiterated in the later three Judge Bench in the case of Ashoo Surendranath Tewari v. CBI, wherein the Apex Court has held as follows:
"8. 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 v. State of Bihar [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , the question before the Court was posed as follows: (SCC pp. 2-3, para 3) "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."
9. This Court then went on to state:
(P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 5, para 17) -8- NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 "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."
10. This being the case, the Court then held: (P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 :
1996 SCC (Cri) 897] , SCC p. 9, para 23) "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 [Prabhu Saran Rajya v. State of Bihar, Criminal Miscellaneous No. 5212 of 1992, order dated 3-8-1993 (Pat)] 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 -9- NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 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."
11. In Radheshyam Kejriwal v. State of W.B. [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , this Court held as follows: (SCC pp. 594-96, paras 26, 29 & 31) "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 [B.N. Kashyap v. Crown, 1944 SCC OnLine Lah 46 : 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: (SCC OnLine Lah:
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
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NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 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.' ***
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.
***
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."
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NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023
12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows:
(Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 :
(2011) 2 SCC (Cri) 721] , SCC p. 598) "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
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NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023
(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."
13. It finally concluded: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para 39) "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."
... ... ... ...
15. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22-12- 2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment [Ashoo Surendranath Tewari v. CBI, 2014 SCC OnLine Bom 5042] of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code".
In the aforesaid judgments, in the case of P.S.RAJYA and ASHOO SURENDRANATH TEWARI (supra), the Apex Court has clearly delineated, that if
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NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 allegations in the departmental inquiry could not be proved on merit and the person is held to be innocent, criminal prosecution on the said facts cannot be permitted to be continued on the underlying principle of criminal trial needing higher standard of proof. Exoneration of the petitioner in the departmental enquiry is not on technicalities but on merits as there was no evidence against the petitioner to drive home the charge. Therefore, in terms of the law laid down by the Apex Court in the aforesaid judgments, in my considered view, the chances of the prosecution succeeding in the criminal trial being bleak, this Court cannot permit continuance of such criminal trial, any further."
In the light of the law laid down by the Apex Court in the afore-quoted judgments and as followed by this Court in A.L.Jayaramu (supra), in the light of the exoneration of the petitioner and closing of the proceedings in the departmental side, permitting further proceedings would become an abuse of the process of the law and to prevent miscarriage of justice, I deem it appropriate to exercise the jurisdiction under Section 482 of the Cr.P.C. and obliterate the impugned proceedings against the petitioner.
10. Learned counsel for petitioner has also contended that prior to the concerned Court taking cognizance, no sanction as obtaining under Section 197 of the Cr.P.C. is
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NC: 2023:KHC-D:12090 CRL.P No. 100991 of 2023 obtained, is not considered in the light of the petition succeeding on the aforesaid grounds.
11. For the aforesaid reasons, I pass the following:
ORDER
(i) The criminal petition is allowed.
(ii) The proceedings in C.C.No.125/2017, pending before the Senior Civil Judge and JMFC, Yelburga,, Koppal, stands quashed.
I.A.No.1/2023 is disposed, as a consequence.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 151