Karnataka High Court
Sri. Kotresh. H vs The State Of Karnataka on 6 October, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5793 OF 2023
BETWEEN:
SRI KOTRESH H.,
S/O HALAPPA B.,
AGED ABOUT 44 YEARS
WORKING AS COMMISSIONER
PERMANENT ADDRESS AT
HALEKALLU VILLAGE
BILICHODU, BICHOLI HOBLI
JAGALURU TALUK
DAVANGERE DISTRICT - 577 553.
... PETITIONER
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH LOKAYUKTA P.S.,
BENGALURU RURAL
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. H.MADHU
S/O HANUMAREDDY
2
AGED ABOUT 52 YEARS
R/AT NO.636, 2ND CROSS
NANJAPPA GARDEN
KALYANAGAR
BENGALURU - 560 043.
... RESPONDENTS
(BY SRI B.B.PATIL, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE (i) COMPLAINT (ANNEXURE-A),
(ii) FIR IN CR.NO.9/2015 DATED 28.04.2015 REGISTERED
LOKAYUKTA P.S., BY THE RESPONDENT POLICE (ANNEXURE-B),
(iii) CHARGESHEET (ANNEXURE-D) AND (iv) ORDER TAKING
COGNIZANCE DATED 28.11.2016 IN SPL.C.NO.225/2016 FOR
OFFENCES P/U/S 7, 8, 13(1)(d) R/W 13(2) OF THE P.C. ACT
(ANNEXURE-E) AND ALL FURTHER PROCEEDINGS ARISING THERE
FROM INITIATED AGAINST THE PETITIONER, PENDING ON THE
FILE OF THE LEARNED IX ADDL. DISTRICT AND JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 15.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question proceedings in Special Case No.225 of 2016 registered for offences punishable under Sections 7, 8, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
32. Heard Sri Shivaprasad Shantanagoudar, learned counsel appearing for petitioner and Sri B B Patil, learned counsel appearing for respondent No.1.
3. Facts adumbrated are as follows:
The 2nd respondent is the complainant. The complainant makes an application before the office of the Deputy Commissioner, Bangalore Rural for conversion of agricultural land to residential purposes, for which the complainant visits the office and meets the Revenue Inspector, accused No.2. Accused No.2 is said to have demanded bribe for completion of the work of conversion. The complainant then meets accused No.3 who is then said to have demanded bribe for himself and the petitioner. Accused No.3 was a Second Division Assistant. The dates of demand of alleged bribe are on 31-03-2015 and 27-04-2015. Therefore, the complaint comes to be registered against the petitioner and others alleging demand and acceptance of bribe. Trap was sought to be laid on two dates 29-04-2015 and 02-05-2015, both the attempts fail. On 17-05-2015, the complainant meets the petitioner and accused 4 No.3, it is again alleged that the accused No.3 demanded bribe. A third round of trap is said to have laid in which an individual by name Muniyappa accused No.4 informs the Lokayuktha that the bribe was accepted by him at the instance of accused No.3 and the petitioner, therefore, the petitioner comes into the web of crime.
Sanction was accorded to prosecute the petitioner, after which, the Lokayuktha Police file a charge sheet against the petitioner for the afore-quoted offences. The concerned Court takes cognizance of the offence against the petitioner.
4. After the concerned Court took cognizance of the offences, a departmental enquiry was instituted against the petitioner on the same set of facts. The petitioner calls that in question before the Karnataka State Administrative Tribunal. The Karnataka State Administrative Tribunal sets aside the enquiry that was sought to be conducted against the petitioner on its merit, exonerating the petitioner. This becomes final. The order is dated 04-01-2018, 5 years have passed by and the State has not questioned the order of the Tribunal. In the light of the said exoneration by the Tribunal, the petitioner has presented the subject petition seeking 5 quashment of the proceedings drawing analogy that exoneration by the Tribunal amounts to exoneration by a Disciplinary Authority and therefore, seeks quashment of the entire proceedings.
5. The learned counsel appearing for the petitioner Sri Shivaprasad Shantanagoudar would submit that the order of the Tribunal exonerates the petitioner, 5 years ago and such exoneration has become final. The departmental enquiry which was conducted against the petitioner was on the same set of facts, the evidence was the same. Therefore, it is his submission that he is entitled to draw the benefit of such judicial order, in seeking quashment of the impugned proceedings. He would seek to place reliance upon the following judgments:
(i) RADHESHYAM KEJRIWAL V. STATE OF WEST BENGAL -
(2011) 3 SUPREME COURT CASES 581;
(ii) ASHOO SURENDRANATH TEWARI V. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI - (2020) 9 SUPREME COURT CASES 636;6
(iii) DR. MINAKETAN PANI V. STATE OF ORISSA - 2022 SCC ONLINE ORI 3304;
(iv) A.L. JAYARAMU V. STATE OF KARNATAKA - 2021 SCC ONLINE KAR 15854.
6. Per-contra, the learned counsel Sri B. B. Patil appearing for respondent No.1 would submit that the Tribunal has gone into the merit of the matter which it ought not to have done and merely because the order is in favour of the petitioner, it cannot be said that criminal proceedings also should be quashed against him.
Exoneration may have been 5 years ago, nonetheless, criminal proceedings are continued and should be permitted to be continued. He would seek dismissal of the petition.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
78. The afore-narrated facts are not in dispute. The dates and the link in the chain of events are also not in dispute therefore, they would not require any reiteration. The petitioner is accused No.1 in Spl. Case No.225 of 2016 which arose out of certain trap proceedings, two proceedings arose out of those trap proceedings. One, a departmental enquiry which was entrusted to the hands of the Lokayuktha and the other, the impugned proceedings, by the Lokayuktha. The proceedings by the Lokayuktha was at the stage of an order of entrustment being made to the hands of the Lokayuktha under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The entrustment was challenged. The Tribunal in Application No.5789 of 2017 goes into the merit of the matter and by a detailed order sets aside the very entrustment holding that there was no evidence against the petitioner, the order reads as follows:
"5. Applicant has produced a copy of complaint lodged by the complainant before the Lokayukta Police on 28.4.2015 (Annexure A-1). A perusal of the complaint shows that the complainant approached Srinivasashetty, Revenue Inspector and requested for recommendation of his application for conversion of land and the said Revenue Inspector demanded money of Rs.35,000/- and asked the 8 complainant to meet Nagaraju, Clerk in the Taluk Office; that the complainant met Nagaraju, who assured for doing the work but demanded bribe of Rs.2,24,000/- stating that he has to pay to Tahasildar (Applicant) money at the rate of Rs.25,000/- per acre apart. from the Revenue Inspector at Rs.4,000/- per acre and the balance for him; that since the Complainant was not willing to pay bribe he approached the Lokayukta Police and gave complaint. Thereafter, the Lokayukta Police laid trap, in the first instance on 29.4.2015 and on the second occasion on 2.5.2015. During none of the said traps the Applicant was caught red-handed, as can be seen from the Panchanamas produced at Annexures A-3 and A-4. Trap was laid for the third time on 19.5.2015 on the office of the Tahasildar (Applicant), but no money was found in the possession of the Applicant. Money was recovered from some private person Muniyappa. Despite the same the Lokayukta Police implicated the Applicant in the criminal case as well as departmental Inquiry. Without examining this aspect of the matter, the Karnataka Lokayukta gave report under Section 12(3) of the Lokayukta Act to the Government recommending initiation of inquiry. So also the Government without examining the material on record and solely accepting the 12(3) Report has entrusted inquiry. As held by the Hon'ble High Court in the case of VENTACHALA SHETTY v. STATE OF KARNATAKA (Writ Petition No.40705/1982) decided on 10.3.1986 to constitute an offence of acceptance of illegal gratification either under the Indian Penal Code or Prevention of Corruption Act, essential ingredients required to be established are delinquent (1) must be a public servant, (ii) should accept gratification for himself and (iii) gratification should be as a motive or reward for showing or forbearing to show favour or disfavor to any person. In the case on hand, acceptance of alleged bribe by Muniyappa (private person), who has nothing to do with the Applicant, can by no stretch of imagination be considered as acceptance of alleged illegal gratification by the Applicant and prima facie opinion that acceptance of illegal gratification by Muniyappa must be treated as acceptance of illegal gratification by the Applicant is 9 totally perverse. The opinion formed by Lokayukta Institution as also the Government that Muniyappa is an agent is purely based on inferences and conjectures. No doubt, writ courts must be slow in interfering with findings of fact recorded by departmental authority on basis of evidence. However, as held by the Hon'ble Supreme Court recently in the case of ALLAHABAD BANK v. KRISHNA NARAYAN TEWARI, reported in (2017) 2 SCC 308, if findings are unsupported by evidence or are such as no reasonable person would arrive at, the Writ Court would be justified, if not duty bound, to examine matter. If enquiry itself is vitiated for violation of principles of natural justice, then Writ Court can interfere with disciplinary enquiry or resultant orders. Further, where authority
(i) has not applied its mind or (ii) has not assigned reasons for its conclusions then Writ Courts can interfere with orders of punishment. Initiation of departmental inquiry against the Applicant is totally unwarranted and without application of mind as mandated by Section 12 of the Karnataka Lokayukta Act and hence the impugned order of entrustment of inquiry against the Applicant is unsustainable in law."
(Emphasis added) This order is passed on 04-01-2018. Close to 5 years have passed by. The order has become final. The issue now is, in the light of the order of entrustment being set aside in which observations are made on the merit of the matter with regard to demand and acceptance, whether it would inure to the benefit of the petitioner to seek quashment of the impugned proceedings.
109. Before answering the issue, I deem it appropriate to notice the law laid down by the Apex Court and other High Courts, as well as this Court, on the issue. The Apex Court in the case of P.S. RAJYA v. STATE OF BIHAR1 has held as follows:
"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. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For 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. In this context, we can usefully extract certain relevant portions from the report of the Central Vigilance Commission on this aspect.
"Neither the prosecution nor the defence has produced the author of various reports to confirm the valuation. The documents cited in the list of documents is a report signed by two engineers namely S/Shri S.N. Jha and D.N. Mukherjee whereas the document brought on record (Ex. S-20) has been signed by three engineers. There is also difference in the estimated value of the property in the statement of imputation and the report.1
(1996) 9 SCC 1 11 The document at Ex. S-20 has been signed by three engineers and the property has been valued at Rs 4,85,000 for the ground floor and Rs 2,55,600 for the second floor.
A total of this comes to Rs 7,40,900 which is totally different from the figure of Rs 7,69,800 indicated in the statement of imputation. None of the engineers who prepared the valuation report though cited as prosecution witnesses appeared during the course of enquiry. This supports the defence argument that the authenticity of this document is in serious doubts. It is a fact that the income tax authorities got this property evaluated by S/Shri S.N. Jha and Vasudev and as per this report at pp. 50 to 63 they estimated the property at Rs 4,57,600 including the cost of land Rs 1,82,000 for ground and mezzanine floor plus Rs 2,55,600 for first floor and Rs 20,000 for cost of land. Thus both the engineers who prepared the valuation report for income tax purposes also prepared the report for the CBI and there is no indication in the subsequent report as to why there is a difference in the value of the property. A perusal of these two reports reveals that there is difference in the specification of the work. The valuation report prepared by Shri S.N. Jha for ground floor for income tax purposes clearly states that the structure was having "RCC pillars at places, brickwork in cement mortar, RCC lintel, 60 cm walls, 9 inch floor height, 17.6, 8.00, 8.00 inch" but in the report for CBI which was also prepared by him the description is "RCC framed structure open verandah on three sides in the ground floor". Similarly, for the first floor it is written in the report as "partly framed structure and partly load being walls, floor heights 3.20 mm. Further Shri S.N. Jha on p. 54 of Ex. D-1 had adopted a rate of Rs 12 290 per sq. mtr. for ground floor and adding for extra height he had estimated ground floor including mezzanine floor at Rs 2,02,600. But for the report at Ex. S-20 the rate has been raised to 365 per sq. mtr. There is no explanation for this increase of rate by Rs 75 per mtr. It is also observed that for the updating of the cost of index 5% was added to the rate of Rs 290 as per p. 55 of Ex. D-1 by Shri S.N. Jha but this has been raised to 97% as an escalation to the cost of index in Ex. S-20 without explaining or giving the reasons therefor. It is surprising that same set of engineers have adopted different standard for evaluating the same property at different occasions. Obviously, either of the report is false and it was for the prosecution to suitably explain it. In the absence of it the only inference to be drawn is that report at Ex. S-20 is not authentic. Since the same set of engineers have done the evaluation earlier and if subsequently they felt that there was some error in the earlier report, they should have explained detailed reasons either in the report itself or during the course of enquiry. Therefore, Ex. S-20 is not reliable."
... ... ... ...
20. Moreover a perusal of Ex. S-20 reveals that Shri Vasudev, Executive Engineer has recorded a note as follows:
"'Hence the valuation of Shri S.N.Jha was never superseded by any other estimates. As is confirmed from the records, his estimated figures were only accounted for by the ITO Bokaro."
Thus according to Shri Vasudev, who was the seniormost among the three CPWD engineers who prepared Ex. S-20, the valuation of ground floor remains at Rs 13 1,82,600 plus Rs 20,000 for the cost of land. The first floor as per Ex. S-20 was estimated at Rs 2,55,600 and a total of all this comes to Rs 4,57,600 which is very near to the declaration of actuals to the income tax authority and also the estimated cost by the Bokaro Steel Township Engineer and the government approved valuer.
20. At the risk of repetition, we may state that the charge had not been proved and on that basis the appellant was cleared of departmental enquiry. In this connection, we may also usefully cite a decision of this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426]. This Court after considering almost all earlier decisions has given guidelines relating to the exercise of the extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 of the Code of Criminal Procedure for quashing an FIR or a complaint. This Court observed as follows:
(SCC pp. 378-79, paras 102-3) "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute 14 any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is 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.15
21. It is clear from the above discussions that though the document cited in Annexure III is a joint report of two engineers what has been brought on record is a document signed by three engineers, the same set of engineers who evaluated the property for income tax purposes, and there is a vast difference in the specifications and the rates adopted for calculating the cost in Ex. S-20 have been increased without any explanation and none of these engineers were produced during the course of enquiry to clarify the position. Hence the authenticity of Ex. S-20 is doubtful as claimed by the defence.
22. It needs to be mentioned that the report at Ex. S-20 has evaluated the ground floor at Rs 4,85,300 and a note to the effect that 10% should be allowed for self- supervision and procurement of material has also been recorded at the end. On this basis the net value of ground floor comes to Rs 4,36,810 (Rs 4,85,344-Rs 48,534). The first floor has been evaluated at Rs 2,55,600 after allowing the allowance for self-supervision and a total of both items would come to Rs 6,62,410. Thus, even the report at Ex. S- 20 does not support the prosecution case that as per the report of CPWD Engineers the property is valued at Rs 7,69,800. As the property assessed by the income tax authority for Rs 4.67 lakhs and even the valuation given by the Bokaro Steel Township Engineer and the government- approved valuer are very near to this figure, the reasonable value of this property could only be taken as 4.75 lakhs assessed by the Bokaro Township Engineer on detailed estimate basis."
(Emphasis supplied) Later, the Apex Court in the case of RADHESHYAM KEJRIWAL2 (supra) has held as follows:
2(2011) 3 SCC 581 (3 Judge Bench) 16 "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.
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."
17Both of which are considered by the Apex Court in ASHOO SURENDRANATH TEWARI3 (supra) wherein the Apex Court has held as follows:
"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) "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 3 (2020) 9 SCC 636 (3 Judge Bench) 18 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."
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 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.' *** 19
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."
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;20
(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."
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."
14. From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated."
21All the aforesaid judgments are followed by this Court in A.L.JAYARAMU (supra). After the aforesaid order, the High Court of Orissa in DR. MINAKETAN PANI4 (supra) has held as follows:
"17. Of the three Judgments cited, two by Mr. Dhal for the Petitioner and one by the learned ASC, the earliest is the decision in Radheyshyam Kejriwal v. State of West Bengal (supra) where the following principles were laid down:
"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 proceeding and criminals proceeding 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 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 4 (2022) SCC Online Ori 3304 (Division Bench) 22 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.
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 proceeding 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."
18. The next in chronology is the decision in State (NCT of Delhi) v. Ajay Kumar Tyagi (supra) which is a Judgment of a Bench of three learned Judges but which took no note of the earlier decision in Radheyshyam Kejriwal v. State of West Bengal (supra). What is, however, common to both decisions is the earliest of the decisions of the Supreme Court in P.S. Rajya v. State of Bihar (1996) 9 SCC 1 In P.S. Rajya v. State of Bihar (supra), the allegation against the delinquent employee in the departmental proceedings and the criminal case were one and the same i.e., possessing assets disproportionate to the known sources of income. The Supreme Court was of the view that the case could be brought under any of the categories of cases mentioned in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 for quashing of the proceedings. Accordingly, the decision of the High Court declining to quash the criminal case was set aside and the criminal proceedings were quashed.
19. In State (NCT of Delhi) v. Ajay Kumar Tyagi (supra), the decision in P.S. Rajya (supra) was sought to be distinguished by stating that it:
"19.... does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed"
20. In State (NCT of Delhi) v. Ajay Kumar Tyagi (supra), the Supreme Court noted that the decision in P.S. Rajya (supra) which was by the Bench of two 23 Judges was distinguished in a subsequent decision in State v. M. Krishna Mohan (2007) 14 SCC 667 which was again by a two-Judge Bench. It was accordingly held that the decision in P.S. Rajya (supra) was not an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial.
21. Despite noting the aforementioned decisions, the decision in State (NCT of Delhi) v. Ajay Kumar Tyagi (supra) failed to take note of the coordinate Bench judgment in Radheyshyam Kejriwal v. State of West Bengal (supra). The latter Judgment was binding on the coordinate Bench and therefore the Judgment in State (NCT of Delhi) v. Ajay Kumar Tyagi should be considered to be 'per incuriam' as explained by the Supreme Court in State of Assam v. Ripa Sharma (2013) 3 SCC 63 : AIR 2013 SC 3588 and Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 : AIR 2005 SC 752.
22. Then we have the other three-Judge Bench Judgment, which is more recent in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) which follows Radheyshyam Kejriwal v. State of West Bengal (supra) but does not notice State (NCT of Delhi) v. Ajay Kumar Tyagi (supra). It however takes note of P.S. Rajya (supra). The conclusion reached in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) is that the exoneration in departmental proceedings would result in the quashing of the criminal case on the same charges since it entailed a higher standard of proof. In other words, if on the lower standard of proof itself the charges were not made out, they obviously would not be made out on a higher standard of proof in a criminal case. The case was held to be covered by Clause (vii) in para 38 of Radheyshyam Kejriwal v. State of West Bengal (supra).
2423. It must be noted here that faced with a similar dilemma, two learned single Judges of the Kerala High Court and Jammu & Kashmir High Court have come to the conclusion that it is State (NCT of Delhi) v. Ajay Kumar Tyagi which would apply and not Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra). These are the decisions in J. Rajesh Kumar v. Central Bureau of Investigation 2021 SCC OnLine Ker 3870 and the Judgment dated 17th December 2020 of the J & K High Court in CRM (M) No. 265 of 2019 and Crl.M. No. 634 of 2019 (Sarwan Singh v. State).
24. However, as far as this Court is concerned, it is not persuaded to adopt the above line of reasoning of the learned Single Judges of the said two High Courts of Kerala and J&K, for the simple reason that as explained by the Full Benches of the three High Courts, i.e., the High Court of Karnataka in Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd., (supra), the High Court of Gujarat in Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxmanbhai (supra) and the Madhya Pradesh High Court in Jabalpur Bus Operators Association v. State of Madhya Pradesh (supra), where there is a conflict between two decisions of the Supreme Court of same Bench strength, it is later of the decisions that would prevail. The last of the Judgments of the coordinate Bench of the Supreme Court of India is the decision in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and, therefore, that would prevail.
25. A point was sought to be raised by learned ASC that the decision in State (NCT of Delhi) v. Ajay Kumar Tyagi (supra) was unanimous whereas the decision in Radheyshyam Kejriwal v. State of West Bengal (supra) was by a majority of 2 : 1. As observed in Shanti Fragrances v. Union of India (2018) 11 SCC 305, the total strength of the Bench that decided the case is deemed to be the Bench strength of that decision regardless of dissenting opinions.
2526. For all of the aforementioned reasons, in the facts and circumstances of the present case where on the same charges on which the Petitioner is facing criminal trial he has been honourably exonerated in the departmental proceedings, the Court adopts the reasoning of the decisions in Radheyshyam Kejriwal v. State of West Bengal (supra) and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and sets aside the impugned order dated 15th January 2009, passed by the Sub-Divisional Judicial Magistrate(s) Cuttack in G.R. Case No. 1057 of 2007."
(Emphasis supplied)
10. The High Court of Delhi in a judgment rendered in CAPTAIN ARVIND KATHPALIA v. GOVT. OF NCT OF DELHI5 quashed proceedings against the petitioner therein, following the judgment of the Apex Court in the case of ASHOO SURENDRANATH TEWARI (supra). The Delhi High Court has held as follows:
"9. Present is a case where, admittedly, under similar facts involving the similar circumstances the petitioner has already been exonerated by the Chairman of Air India vide order dated 10-02-2020, categorically recording "I, therefore, conclude that Capt. Kathpalia has been adequately punished for the above lapses twice by DGCA and punishment reverting from his post Director (Operations) to the post of Executive Director has also been imposed on him. This itself is a substantial major penalty." After finding the allegations of forgery unsubstantiated against him, the disciplinary case initiated against him was closed. In 5 Crl.M.C.No.1626/2023 & Crl.M.A.6153/2023 decided on 31.08.2023 26 the opinion of this court, once Air India itself has closed the disciplinary proceedings against the petitioner after going through the relevant records before it and upon finding no merits therein has duly recorded the above prior to closing it, in the opinion of this Court, not much remaining for the FIR to proceed against the petitioner involving similar offences.
10. Needless to say, the above is de hors the fact that there is no bar as to the disciplinary proceedings and the criminal prosecution continuing together at the same time and that the outcome of the disciplinary proceedings will either have any bearing upon the pendency nor upon the outcome of the criminal prosecution as they can co-exist. However, where the case is one wherein exoneration is on merits as the allegation thereof has been conclusively found unsustainable, based whereon innocence has been proven, then in such a situation, in the opinion of this Court, there is no reason and/or fruitful purpose for the criminal prosecution on the same set of facts to continue. Reliance in this regard may be placed on Ashoo Surenderanath Tewari (Supra), wherein the Supreme Court, after referring to various judgments, culling out the ratio therein, has held as under:
"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 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 27 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."
"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."
11. Ashoo Surendranath Tewari (supra) has also been followed by a coordinate Bench of this Court in Johnson Jacob v. State - 2022 SCC OnLine Del 1864.
12. In view of the aforesaid, the continuance of the FIR under the aforesaid circumstances shall, in the opinion of this court, result in the petitioner undergoing the ordeal twice over again for the same offence. The petitioner cannot be subjected to double jeopardy for the same offence, once after having been given a clean chit on merits in the disciplinary proceedings.
2813. On examination of the factual matrix, this Court finds that offence of forgery, as alleged by the respondent, is not made out against the petitioner primarily as the prime factor to be taken into consideration is the element of creation of a false document with intent to cause damage or injury and in the present case it is the petitioner who had filed in all his personal particulars leaving hardly any scope for causing any damage or injury. Had they been missing or interpolated or otherwise, the situation would have been different and the offence of forgery would have been made out. Admittedly, the situation is not such here. Reliance in this regard may be placed on State of Haryana v. Bhajan Lal 1992 SCC (Crl) 426, wherein the Hon'ble Supreme Court has held as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are 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.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate 29 within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is 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. Given the totality of the facts and circumstances, this Court is of the opinion that allegations against the petitioner, are wholly insufficient to make out a case against him, much less for keeping the FIR alive. Moreover, in view of the prevailing facts involved and the legal position discussed hereinabove, in the opinion of this Court, subsistence of the present criminal proceedings 30 emanating from the FIR in question against the petitioner, is likely to result in subjecting him to unwarranted injustice.
15. Although it is trite that the power of quashing an FIR under Section 482 Cr.P.C. is to be used sparingly but in situations like the present where there is hardly any ground leading to the conviction of the petitioner as the same is based on fact s which are no more alive, the Court is well within its right to proceed with quashing of the FIR. As such, in view of the peculiar facts and circumstances involved herein, the present FIR is liable to be quashed.
16. Accordingly, FIUR No.475/2018 dated 24-08-2018 registered under Section (s) 201/204/465/466/471/ 506/202/217/279,280/120B IPC and Section 11 Aircraft Act at P.S. I.G.I Airport and charge sheet in Criminal Case No.6564/2020 under Section(s) 465/466/468/471 IPC and Section 11 of the Aircraft Act pending before Learned ACMM, Patiala House Courts, Delhi and all the other proceedings emanating therefrom are quashed."
(Emphasis supplied) All these judgments of the Apex Court, this Court and that of the other High Courts have quashed the criminal proceedings. One solitary stream of reasoning that travels through all these judgments, is that if the employee/Government servant could not be held guilty in a proceeding, in which probabilities are preponderant, he can hardly be held guilty in a proceeding, in which the guilt will have to be established beyond all reasonable doubt.
The Courts, in the aforesaid judgments, were considering orders 31 passed by the Disciplinary Authority exonerating the delinquents therein. They were quasi judicial orders. The Apex Court considers that the quasi judicial exoneration would result in quashment of the criminal proceedings on the same set of facts, on the aforesaid principle. The subject, in the case at hand, is exoneration by a judicial proceeding, as it is by the Tribunal. Therefore, it gets into a higher pedestal than that of a quasi judicial proceeding.
Exoneration is exoneration, be it by/or/in a quasi judicial proceeding or a judicial proceeding and the exoneration would inure to the benefit of the petitioner in aid to the relief that he has sought in the subject petition. Therefore, permitting further proceedings to continue would run foul of the law, become an abuse of the process of the law and result in miscarriage of justice.
11. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The impugned proceedings in Spl.C.No.225 of 2016 pending before the IX Additional District and Sessions 32 Judge, Bengaluru Rural District, Bengaluru stands quashed qua the petitioner.
Sd/-
JUDGE Bkp CT:ss