Karnataka High Court
The State Of Karnataka vs Vittalrao Baise S/O Krishnoji Rao on 31 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31st DAY OF JANUARY 2014
BEFORE
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.901 OF 2010
BETWEEN
THE STATE OF KARNATAKA
THE POLICE INSPECTOR
BANGALORE CITY DIVISION,
KARNATAKA LOKAYUKTHA POLICE
BANGALORE.
... PETITIONER
(By Smt : T M GAYATHRI, SPL.PP)
AND
VITTALRAO BAISE
S/O KRISHNOJI RAO
AGE: 54 YEARS
P.S.I. JAYANAGARA TRAFFIC SQUAD,
BANGALORE PRESENTLY WORKING
SUB-INSPECTOR-I,
BANASHANKARI TRAFFIC POLICE STATION,
BANGALORE
R/AT NO.186, F-2ND ROAD,
KUMARASWAMY LAYOUT,
BANGALORE-560 078
... RESPONDENT
(By Sri: C G SUNDAR & ANJANA SUNDAR, ADVS., )
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THIS CRL.RP IS FILED U/S.397 & 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DT.5.10.09 PASSED
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BY THE LEARNED XXIII ADDL. CITY CIVIL AND S.J.
BANGALORE CITY IN SPL.C.C.NO.149/06 ON HIS FILE
DISCHARGING THE RESPONDENT/ACCUSED OF THE
OFFENCE P/U/S 7, 13(1)(d) R/W 13(2) OF P.C. ACT 1988,
FURTHER DIRECT THE SPL. COURT TO FRAME THE
CHARGES AND TO PROCEED WITH THE TRIAL.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF ORDERS, THIS DAY, PRADEEP
D. WAINGANKAR J., PRONOUNCED THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 r/w 401 of Cr.P.C. is directed against the order dated 5.10.2009 in Spl.C.C.No.149/2006 on the file of XXIII Addl. City Civil & Sessions Judge, Bangalore City, whereby an application filed by the respondent- accused under Section 227 of Cr.P.C. came to be allowed and the accused has been discharged for the offences punishable under Sections 7, 12, 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act,1988.
2. Respondent-accused- a Police Sub-Inspector had been charge-sheeted by Lokayuktha police for 3 the offences punishable under Section 7, (13)(1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 in Spl.C.C.No.149/2006. Simultaneously, for the same charges, a Departmental Enquiry was also initiated against the accused. In the departmental enquiry, after recording the evidence of the witnesses and perusal of the material placed by the parties, the Enquiry officer submitted a report that the charges are not proved. The Disciplinary Authority accepted the report of the Enquiry Officer and thereby the accused has been exonerated from the charges levelled against him. Since he was exonerated from the charges levelled against him in Departmental Enquiry by order dated 9.11.2006, the accused filed an application under Section 227 of Cr.P.C. before Special Court for his discharge.
3. The application was opposed by the Public Prosecutor contending that the departmental 4 proceedings and criminal proceedings are independent proceedings, finding in departmental proceeding is not binding on criminal proceedings. The quality of evidence to be led in Departmental enquiry is quite different from the quality of evidence to be led in criminal proceedings. Further, it was contended that there is sufficient evidence so as to warrant the conviction of the accused before Special Judge and that he has been discharged only on the ground that he has been exonerated in the Departmental Enquiry, purely based on the decision of the Supreme Court in P.S. Rajya Vs. State of Bihar reported in (1996) 9 SCC 1, which has been set-aside by the subsequent decision of the Supreme Court in the case of State(NCT of Delhi) Vs. Ajay Kumar Tyagi reported in (2012) 9 SCC 685.
Upon securing the records from the Court below, I have heard both the learned Public 5 Prosecutor and the learned counsel appearing for the respondent-accused. The point that arises for my determination is as under:-
"Whether the impugned order of discharge of respondent is sustainable in law?' My finding is in the negative for the following:-
REASONS The reading of the impugned order makes it clear that the accused has been exonerated in the Departmental enquiry initiated against him for identical charge relying upon the decision of Supreme Court in the case of P.S. Rajya Vs. State of Bihar reported in (1996) 9 SCC 1, wherein it has been held as under:-
"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 6 proceedings. In the instant case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. If the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings."
4. In the case on hand, no-doubt the charges in the departmental proceedings and in the criminal proceedings as observed by the Disciplinary Authority is the same i.e., that the respondent PSI demanded and accepted the bribe of Rs.1,500/- from the complainant in order to release his autorickshaw which was seized in a motor accident case. It is noticed that the accused has been exonerated in the departmental proceedings by the order dated 6.12.2008 by accepting the report of the enquiry 7 Officer dated 6.12.2008 for the reason that all the important witnesses have not supported the case of the prosecution and that as on the date of the trap i.e., on 31.5.2005, the autorickshaw was not in possession of the accused. It is seen from the records that autorickshaw bearing No.KA-05-A-9604 belonging to the complainant Sri. Satyavelu was seized in connection with the motor accident by the Accused-PSI of Jayanagar Traffic police station and in order to release the autorickshaw, the accused demanded illegal gratification of Rs.2,500/- and when the complainant expressed his poverty and inability, he came down to Rs.1,500/- in order to release the autorickshaw. Since the complainant was not interested to get his work done by paying bribe amount, he lodged a complaint before the Lokayuktha police station who in-turn trapped the accused on 31.5.2005 and upon completion of the 8 investigation, all the papers were placed before the Commissioner of police, Bangalore, who upon going through the entire records found that there is prima- facie case to proceed against the accused and thereby accorded sanction to prosecute the accused before the Court of law. Now, the very same police commissioner exonerated him on the ground that all important witnesses have turned hostile. It cannot be said that no evidence has been collected against the accused during the course of investigation, otherwise Commissioner of Police would not have accorded sanction to prosecute the accused. There is prima facie case so as to proceed against the accused. All the witnesses in a trap case are important witnesses. Inspite of prima-facie material on record to proceed against the accused, he has been discharged purely based on the decision of the Supreme Court in P.S. Rajya's case. The learned Spl. 9 Public prosecutor brought to my notice the three Judge decision of the Supreme Court in the case of STATE (NCT OF DELHI) vs. AJAY KUMAR TYAGI reported in (2012) 9 SCC 685 and submitted that the decision rendered by the Supreme Court in P.S. Rajya's case has been overruled and it has been held by the three Judge Bench of the Supreme Court that exoneration in disciplinary proceedings by itself not a ground for quashing criminal proceedings. The ratio laid down in the aforesaid decision of the Supreme Court reads as under:-
Criminal Procedure Code,1973 -S.482 - Quashing of criminal proceedings - Criminal proceedings and disciplinary proceedings based on same charge -Exoneration in disciplinary proceedings- Held, by itself not a ground for quashing criminal proceedings - Criminal case is decided on basis of evidence adduced therein and cannot be rejected on basis of evidence in departmental proceeding 10 or report of enquiry officer -However, if prosecution is solely based on a finding in a disciplinary proceeding and same is set aside by superior authority, as the very foundation goes, prosecution may be quashed -
Clarified, P.S. Rajya, (1996) 9 SCC 1 does not lay down that exoneration in disciplinary proceedings would ipso facto terminate criminal proceedings - Service Law- Departmental Enquiry - Criminal proceedings
- Inter se relationship - Prevention of Corruption Act, 1988- Ss.7 and 13 -
Quashment - When not warranted-
Proceedings restored - Constitution of India, Art.226.
It is also made clear in the aforesaid decision that the Supreme Court in P.S. Rajya's case quashed the prosecution on the peculiar facts of that case and therefore it cannot be said that the Supreme Court has laid down the ratio in P.S. Rajya's case, which is binding on all the Courts. Further it has been held 11 that the decision in P.S. Rajya, does not lay down any proposition that exoneration of an employee in the deparmental proceedings, criminal prosecution on the identical charge has to be quashed. Since the decision in P.S. Rajya's case has been over-ruled by the subsequent three bench decision of the Supreme Court and the sanction to prosecute the accused is accorded by the competent authority-Commissioner of Police after perusal of the record, the impugned order of discharge of the accused by the Special Court is uncalled for. Needless to say that it is liable to be set-aside.
5. Hence I pass the following order:-
Criminal revision petition is allowed. The order dated 5.10.2009 in Spl.C.C.No.149/2006 whereby the accused has been discharged is hereby set-aside and the matter is remanded to the Special Court for 12 disposal expeditiously upon notice to both the parties.
Sd/-
JUDGE *mn/-