Punjab-Haryana High Court
Hari Mohan Mittal vs State Of Haryana on 25 March, 2009
Author: Sabina
Bench: Sabina
Crl. Misc. No. M- 16124 of 2008 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. M- 16124 of 2008
Date of Decision:March 25, 2009
Hari Mohan Mittal
---Petitioner
versus
State of Haryana
---Respondent
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr. Akshay Bhan,Advocate,
for the petitioner
Mr. Sidharth Sarup, AAG, Haryana
***
SABINA, J.
Hari Mohan Mittal-petitioner has filed this petition under Section 482 of the Code of Criminal Procedure(hereinafter referred to as "Cr.P.C.") for quashing of FIR No. 2 dated 18.3.2005 under Sections 7, 13 (1)D and 14 of the Prevention of Corruption Act (for short- "the Act") registered at Police Station SVB, District Rohtak and all consequential proceedings arising therefrom.
FIR in question was lodged on the basis of letter dated 17.5.2004 by Chief Secretary, Haryana Government, Department of Vigilance after enquiring into the complaint made by Jai Bhagwan before it. Crl. Misc. No. M- 16124 of 2008 -2-
Learned counsel for the petitioner has submitted that on the same allegation, petitioner was proceeded departmentally and it was found vide report dated 30.1.2007 ( Annexure P-2) that complainant Jai Bhagwan is habitual of committing theft of electricity. Vide report dated 30.1.2007 (Annexure P-2) it was held that the allegations leveled against the petitioner were not proved. Learned counsel for the petitioner has placed reliance on the decision of the Apex Court in P.S.Rajya vs. State of Bihar (1996) 9 SCC 1. Para 17 of the said judgment is reproduced as under:-
"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."
Learned State counsel on the other hand has submitted that the offence committed by the petitioner is serious in nature. He has accepted Rs. 5000/- as bribe from Jai Bhagwan. Complainant was not examined. Sh. Crl. Misc. No. M- 16124 of 2008 -3- Narender Goyal, the person in whose presence the bribe was allegedly paid was also not examined in the departmental proceedings.
A perusal of the departmental enquiry report dated 30.1.2007 (Annexure P-2) reveals that the following charges were required to be enquired into during departmental enquiry:-
1. He demanded a sum of Rs. 20,000/- as illegal gratification and accepted Rs. 5000/- in advance from Sh. Jai Bhagwan (Consumer) on 1.9.2003 in lieu of theft of energy in his factory.
2. When Sh. Jai Bhagwan failed to pay balance amount of Rs. 15,000/-
he raided the factory owned by Sh. Mohinder Pal brother of Sh. Jai Bhagwan on 3.9.03 and found running factory unauthorisedly by taking direct supply from main bypassing the meters despite the fact that it was already disconnected in 4/99 and police/Court case was pending in the court against Sh. Suresh Kumar & Jai Bhagwan vide FIR No. 95 dated 16.4.1999 at Sampla. A penalty of Rs. 13,99,734/- was imposed upon the consumer but FIR was lodged against Sh. Jai Bhagwan on 10.9.03 instead of within 72 hours of committing theft of energy.
3. He used to get the theft of energy from the consumer after taking monthly illegal gratification.
While deciding charge No. 1 it was held that it is evident from the record that petitioner was the then SDO (OP) Sampla and had not got the premises of the consumer checked. In case he had got the premises checked it could have been presumed that he had done so as the consumer has refused to pay the balance amount of Rs. 15000/- out of Rs. 20,000/- demanded as bribe money. The checking of the consumer premises was Crl. Misc. No. M- 16124 of 2008 -4- done by ADV Vigilance. Theft of energy was detected in the consumer premises earlier also in September, 2002 and both the theft cases are sub judice as the consumer has filed cases against the penalty in view of theft of energy in the District Consumer Redressal Forum, Rohtak and Additional District Judge, Rohtak It was also reported by the President/Secretary of Industrial Association, Sampla that no incident had been reported to them regarding demand of illegal gratification from any industrial consumer. Hence, it was held that charge No. 1 was not proved.
With regard to charge No. 2, it was held that checking of consumer premises was made by vigilance on 3/4.9.2003 and notice of penalty was served on the consumer on 4.9.2003. As per the said notice, consumer was given 72 hours to deposit the amount of penalty after receipt of notice. As per the instructions of the Nigam, the said period expired on 7.9.2003 which was Sunday and hence, FIR was lodged with the police on 9.9.2003 as it was taken that the consumer could deposit the amount in question up to 8.9.2003. Hence, it was held that there was no delay in lodging the FIR against M/s Mohinder Pal Ice Factory, Sampla.
So far as charge No. 3 is concerned, it was held that the President/Secretary, Industrial Association, Sampla had reported during discussion that no such demand was made by the petitioner for monthly illegal gratification from any consumer.
In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp (1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be Crl. Misc. No. M- 16124 of 2008 -5- exercised by the High Court 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 chennelised 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 complainant, 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 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 no 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 Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so Crl. Misc. No. M- 16124 of 2008 -6- 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 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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."
In the present case FIR was lodged against the consumer regarding theft of energy vide Annexure P-4. Keeping in view the fact that in the departmental proceedings, petitioner was found innocent and the judgments cited above, the continuation of criminal proceedings would be nothing but abuse of process of Court. Non-examination of complainant and the person in whose presence the bribe money had been allegedly paid, in the facts and circumstances of this case is not material and would not vitiate the departmental proceedings.
In view of the above, this petition is allowed. FIR No. 2 dated Crl. Misc. No. M- 16124 of 2008 -7- 18.3.2005 under Sections 7, 13(1)D and 14 of the Act registered at Police Station SVB, District Rohtak and all consequential proceedings arising therefrom are quashed.
(SABINA) JUDGE March 25, 2009 PARAMJIT