Karnataka High Court
Mr. Attar Mohammad Shafiullah @ A ... vs Central Bureau Of Investigation on 9 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 07.06.2024
Pronounced on : 09.08.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.7629 OF 2024 (GM - RES)
BETWEEN:
MR. ATTAR MOHAMMAD SHAFIULLAH
@ A. SHAFIULLAH
AGED ABOUT 54 YEARS,
S/O LATE MR. ABDUL NABI
WORKING AS SUPERINTENDENT OF CUSTOMS,
KEMPEGOWDA INTERNATIONAL AIRPORT,
KIAL RD DEVANAHALLI,
BENGALURU - 560 300.
... PETITIONER
(BY SRI K.N.PHANINDRA, SR.ADVOCATE A/W
SRI MAHESH CHOWDHARY, ADVOCATE)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI-CORRUPTION BRANCH,
NO. 36, BELLARY ROAD,
GANGANAGAR,
BENGALURU - 560 032
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
2
FOR CBI CASES,
HIGH COURT OF KARNATAKA,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED CHARGE SHEET
BEARING NO.19 DTD 01.03.2018 FOR THE OFFENCES UNDER
SECTION 120B OF INDIA PENAL CODE, 1860(IN SHORT IPC) AND
SECTION 7 AND 13(2) R/W 13(1)(d) OF THE PREVENTION OF
CORRUPTION ACT, 1988 BEFORE THE HON'BLE XXI ST ADDL.CITY
CIVIL AND SESSION JUDGE AND PRL.SPECIAL JUDGE FOR CBI
CASES (CCH-4) AT BENGALURU VIDE ANNEXURE-A AND ALL
CONSEQUENT PROCEEDINGS IN SPL CC NO.850/2018 BEFORE THE
HON'BLE XXI ST ADDL.CITY CIVIL AND SESSION JUDGE AND
PRL.SPECIAL JUDGE FOR CBI CASES(CCH-4) AT BENGALURU VIDE
ANNEXURE- F ONLY PERTAINING TO THE PETITIONER AS BEING
ILLEGAL, ERRONEOUS, ARBITRARY AND BAD IN THE EYES OF LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.06.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused is before this Court calling in question
proceedings in Special C.C.No.850 of 2018 pending before the XXI
Additional City Civil and Sessions Judge and Principal Special Judge
for CBI Cases, Bangalore arising out of charge sheet No.19 dated
01-03-2018 registered for offences punishable under Section 120B
of the IPC and Sections 7 and 13(2) r/w 13(1)(d) of the Prevention
of Corruption Act, 1988 ('the Act' for short).
2. Heard Sri K.N.Phanindra, learned senior counsel appearing
for the petitioner and Sri P.Prasanna Kumar, learned Special Public
Prosecutor appearing for the respondent.
3. Facts, in brief, germane are as follows:-
The petitioner is an officer in the rank of Superintendent of
Customs posted at Kempegowda International Airport at the
relevant point in time. It is the case of the prosecution that on
27-02-2018 one Sri. S. Muthukrishna travels from Bangalore to
Bangkok. On 01-03-2018 he returns to Bangalore with certain
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commercial goods. On his arrival, he was stopped by the petitioner
for checking of the products that he had brought from Bangkok as
they were attracting customs duty. It was found that the said
person was in fact carrying certain goods. It is alleged that the
petitioner demanded `30,000/- from the said traveller in lieu of the
duty that is to be paid. It is the averment that the said traveler
requested the petitioner some time to withdraw the money from the
ATM nearby. The said person goes out and on coming back alleges
that the petitioner has demanded bribe. He then becomes the
complainant. The afore-narrated facts are the subject matter of the
complaint. Based upon the said complaint, a crime comes to be
registered on the very day i.e., 01-03-2018 in FIR
No.RC.03(A)/2018 initially alleging offence punishable under
Section 7 of the Act. Since the matter was pertaining to corruption
in the Customs Department, the matter was referred to the Central
Bureau of Investigation for investigation. The CBI files a charge
sheet before the concerned Court now alleging offences punishable
under Section 120B of the IPC and Sections 7 and 13(2) r/w
13(1)(d) of the Act.
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4. One analogous development takes place in the meantime.
Based on the same allegations and same facts that led to the
criminal proceedings, a charge sheet was issued for conduct of a
departmental enquiry against the petitioner on 25-07-2019 under
Rule 14 of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965 (hereinafter referred to as 'the Rules' for
short). The departmental inquiry and the criminal proceedings go
hand in hand or simultaneously. During the pendency of
departmental inquiry, the concerned Court takes cognizance of the
offence on 05-02-2020 on the charge sheet so filed by the CBI and
registers Special C.C.No.850 of 2018. In the departmental enquiry,
the petitioner gets exonerated with the charges so levelled against
him, as the Disciplinary Authority accepts the report of the Inquiry
Officer and closes the case against the petitioner on 29-12-2023.
Immediately after the closure of departmental proceedings, the
petitioner has knocked at the doors of this Court in the subject
petition seeking quashment of the subject proceedings on the score
that he has been exonerated in the departmental enquiry.
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5. The learned senior counsel appearing for the petitioner
Sri K.N. Phanindra would vehemently contend that the
departmental enquiry was initiated on the same set of facts and the
documents marked are also the same as also the witnesses.
Therefore, if the charge levelled against the petitioner was not
proved in a departmental inquiry, it cannot be proved in a criminal
trial. Even otherwise, there is no ingredient of any demand or
acceptance in the case at hand. All is an allegation of such demand
and acceptance. Money was neither demanded nor accepted as
contended by the complainant. Forces inimical to the petitioner
were behind initiation of these proceedings. He would seek
quashment of the proceedings, by placing reliance upon plethora of
judgments rendered by the Apex Court and that of this Court, which
would all bear consideration qua their relevance.
6. Per contra, the learned counsel Sri P.Prasanna Kumar
would refute the submissions to contend that the two proceedings
are entirely different. The petitioner did ask the complainant to go
out and get money that he demanded. The complainant goes out
and the money is handed over to accused No.2 who was working as
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Inspector of Customs, both of whom were posted at Kempegowda
International Airport at the relevant point in time. It is based upon
this the complaint was registered, investigation conducted and
charge sheet was filed, on which cognizance is taken. Since
congnizance is taken, it is for the petitioner to come out clean in a
full blown trial. He places reliance upon the findings in the
departmental inquiry which are neither here nor there, as accused
No.2 had in fact received the amount on behalf of accused No.1
and, therefore, the allegation is prima facie proved. 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.
8. The afore-narrated facts are a matter of record. The story
would commence from a complaint being registered by a traveller
by name S. Muthukrishna, Proprietor of M/s B.S. Systems,
Bangalore. He travels to Bangkok on 27-02-2018 and returns back
to Bangalore on 01-03-2018 carrying several electronic goods.
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Those electronic goods would all carry customs duty. Therefore, the
petitioner who was working as Superintendent of Customs stops the
complainant and searches his baggage. To clear the goods, it is
alleged that the petitioner demanded `30,000/- from the
complainant. The complainant is said to have sought permission of
the petitioner to go out and get the money from a nearby ATM or
relative or friend who is said to have been waiting outside as he did
not have any money with him at that juncture. The petitioner is
said to have detained the goods of the complainant and informed
the complainant to get money. This is the gist of the allegation
against the petitioner.
9. The CBI then conducts investigation and the investigation
would reveal that the petitioner who was the Superintendent of
Customs was working at the Kempegowda International Airport
along with Inspector of Customs one Abhishek Kumar, accused
No.2. The interception of the complainant happens at 2.35 a.m. on
01-03-2018 on his arrival to Bangalore and it further reveals that
accused No.1, the petitioner without inspecting the baggage to
clear the goods had demanded illegal gratification of `30,000/-. The
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complainant is said to have produced the currency notes amounting
to `30,000/- all of `2,000/- denomination each. These notes were
quoted with Sodium Carbonate-Phenolphthalein for test and were
placed in the complainant's pocket. The complainant at the arrival
gate took accused No.2 near the toilet and gave the notes and
accused No.2 when caught, admitted demanding and accepting
bribe on the instructions of accused No.1. It is based upon this, the
charge sheet is filed including the offences punishable under
Section 120B of the IPC, Sections 7, 13(2) and 13(1)(d) the Act.
The proceedings are still pending before the concerned Court, as
observed hereinabove.
10. One analogous development takes place where the
petitioner is also proceeded departmentally. The departmental
enquiry was sought to be initiated. The approval of the Central
Vigilance Commission as a first stage advice was taken and the
charge sheet was issued. The Inquiry Officer holds the disciplinary
proceedings. It is germane to notice the charges levelled against
the petitioner in the disciplinary proceedings. They read as follows:
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"2. CHARGES AGANST THE OFFICER:- The articles of
charges framed against the charged officer are:
2.l ARTICLE-1: The charged officer Sri A.M. Shafiullah,
while working as a public servant in the capacity as
Superintendent of Customs, Kempegowda
International Airport (KIAL),Bangalore on 01-03-
2018 committed an official misconduct in as much
as he had demanded a bribe amount of Rs. 30,000/-
from an international passenger Sri Mathukrishnan
and deputed Sri Abhishek Kumar, Inspector, KIAL
to collect the said bribe amount of Rs.30,000/- to
release the said passenger's imported items and
passport, which the CO illegally detained without
raising the Customs Duty Challan or issuing
Detention Memo. By these acts, the CO had
committed gross misconduct in as much as he has
failed to maintain absolute integrity and acted in a
manner unbecoming of a government servant and
thus violated Rules 3(1)(i) & 3(1)(iii) of the CCS
(Conduct) Rules, 1964.
2.2. ARTICLE-II: The charged Officer Sri A.M. Shafiullah,
while working as a public servant in the capacity as
Superintendent of Customs, KIAL Bangalore, committed
official misconduct in as much as he had failed to assess
the items imported by the passenger Shri
S.Muthukrishnan under Baggage Rules and release the
said imported goods after ensuring that the customs duty
due is remitted by the passenger, or, on the contrary, if
the passenger was not in consonance with the
assessment or failed to pay the customs duty after
assessment, failed to issue a detention memo thereon.
By these acts he had failed to maintain devotion to duty
and acted in a manner unbecoming of a Government
servant and thus violated Rules 3(1)(ii) & 3(1)(iii) of the
CCS (Conduct) Rules, 1964. "
(Emphasis added)
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In the departmental inquiry, after narrating the entire facts, the
points for determination or issues to be decided by the Inquiry
Officer are drawn as follows:
"6. POINTS FOR DETERMINATION OR ISSUES TO BE
DECIDED:
After careful study of the charge memorandum and the
available relied upon documents, the following emerge as the
points of determination by the inquiry authority:
i. Whether Shri A.M. Shafiullah, Superintendent
demanded a bribe amount of Rs.30,000/- on the
intervening night of 28-02-2018/01-03-2018 from
an international passenger Shri Muthukrishanan
and deputed Shri Abhishek Kumar, Inspector, KIAL
to collect the said birbe amount of Rs.30,000/- to
release the said passenger's imported items and
passport.
ii. Whether Shri A.M. Shafiullah, Superintendent
illegally detained passenger's imported items and
passport, without raising the Customs Duty Challan or
issuing Detention Memo.
iii. Whether Shri A.M. Shafiullah, Superintendent had
failed to assess the items imported by the passenger Shri
S.Muthukrishnan under Baggage Rules and release the
said imported goods after ensuring that the customs duty
due is remitted by the passenger, or, on the contrary, if
the passenger was not in consonance with the
assessment or failed to pay the customs duty after
assessment, failed to issue a detention memo thereon.
iv. Whether Shri A.M. Shafiullah, Superintendent failed
to maintain absolute integrity, devotion to duty and acted
in a manner unbecoming of public servant."
(Emphasis added)
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The crux of the issues was whether the petitioner demanded bribe
of `30,000/- on the night of 01-03-2018 and whether the petitioner
had indulged in any other activity that would become a misconduct
under the Rules. Answering these issues, the Inquiry Officer
examines witnesses by recording their depositions in a summary
form. The witnesses were 21 in number. The Inquiry Officer, after
a 68 page long drawn report, concludes as follows:
"11. CONCLUSION:
Based on discussions and findings mentioned above, I
find that the charges against officers cannot be
sustained.
The final submissions made by the PO and the CO
are duly taken into account in my findings. The PO's brief
and CO's brief and other submissions, daily order sheets
(DOS-1 to 18) in original statements of witnesses, state
documents, CCTV footage received from KIAL (4 DVDs),
defence documents and other related documents are
submitted herewith along with the report for kind
necessary action please."
(Emphasis added)
The finding of the Inquiry Officer is that the charges against the
Officers are unsubstantiated. 18 documents including CCTV footage
(4 DVDs), defence documents and all related documents are
considered. The entire report of the Inquiry Officer and the opinion
of the Disciplinary Authority are furnished to the Central Vigilance
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Commission for second stage advice. On seeking of the second
stage advice, the communication of the CVC reads as follows:
"SSA No.06/2021 Date 12.2021
To
The Commissioner of Central Taxes,
Mangaluru Central Tax Commissionerate,
7th Floor, Trade Centre,
Bunts Road, Mangaluru - 575 003.
Sir,
Sub: Disciplinary case against Sri A.M. Shafiullah,
Superintendent - Reference for second stage
advice - Reg.
Please refer to your office letter C.No.II/10-A/02/2019
Vig. dated 01-10-2021 on the above subject.
2. In this regard, it is to inform that the opinion of the
Disciplinary Authority that the charges framed against
Shri A.M. Shafiullah, Supdt., in the Charge Memorandum
issued in file C.No.II/10-A/02/2019 Vig. Dated 25-07-
2019 are not proved, is accepted and the second stage
advice is issued accordingly."
Yours faithfully
Sd/-
(N.sridhar)
Additional Director General"
(Emphasis added)
The Central Vigilance Commission is said to have accepted the
findings of the Inquiry Officer. After the acceptance by the Central
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Vigilance Commission, the matter is closed by the Disciplinary
Authority by accepting the report of the Inquiry Officer and
exonerating the petitioner in terms of his order dated 29-12-2023.
While so doing, the Disciplinary Authority refers to particulars of
documents that the Inquiry Officer had looked into and he has
looked into list of witnesses who had deposed in the departmental
inquiry and then passes an order of exoneration. The order narrates
the approval of the Central Vigilance Commission through the Chief
Vigilance Officer of the Customs Department. Those paragraphs
read as follows:
"15. Accordingly, in terms of CVC Circular
No.09/12/2014 dated 11-12-2014, a reference was made
to the Additional Director General, DGOV, HZU, seeking
CVO's Second Stage Advice on the issue as the tentative
decision of the Disciplinary Authority was not in line with
the First Stage Advice No.07/18 dated 12-12-2018 issued
by the Additional Director General, DGOV, HZU, wherein
Major Penalty Proceedings under Ruel14 of the CCS (CCA)
Rules, 1965, were proposed against Shri A.M.Shafiulla,
Superintendent.
16. In July, 2021, the Charged Officer was
transferred from GST, Mangaluru and posted to
Bengaluru North Commissionerate vide EO No.07/2021
dated 29.07.2021.
17. Second Stage Advice No.6/2021 dated
31.12.2021 issued by the Additional Director General,
Directorate General of Vigilance, HZU, was forwarded to
the Commissioner of Central Taxes, Mangaluru. It was
informed that, on examination of the case, the CVO has
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accepted the opinion of Disciplinary Authority that the
charges framed against Mr. Shafiullah, Superintendent in
the Charge Memorandum C.No.II/10A/02/2019 Vig.
Dated 25-07-2019 are not proved."
(Emphasis added)
The order of the Disciplinary Authority reads as follows:
"20. Accordingly, I pass the following:
ORDER
In exercise of the powers conferred on me as a Disciplinary Authority under Rule 12 of the Central Civil Services (CCA) Rules, 1965, I hereby exonerate Shri Attar Mohummad Shafiullah, Superintendent of Central Tax, of the charges levelled against him in the Charge Memorandum C.No.II/10A/02/2019 Vig. Dated 25-07- 2019."
(Emphasis added) Thus, it is a departmental inquiry that gets concluded after a complete rigmarole procedure.
11. The charge sheet filed by the CBI appends to it, list of witnesses and documents. They are verbatim same to what is marked in the departmental inquiry. About 30 witnesses were examined and 29 documents are marked. They are as follows:
"List of Witnesses in RC.03(A)/2018-CBI/ACB/Bangalore 16 Sl.No. Name of the Witnesses (W) 1 Shri S.Muthukrishna, Proprietor, B.S.Systems, No.1808, BEML Moin Road, New Thippasandra, Bangalore. R/o No.66/A, 3rd cross, Venkateshwara Colony New Thippasandra. Bangalore-75. (Complainant) (11 sheets).
2 Shri. Yousuf Shariff, aged 46 years S/o Shri A.K.Shariff, Dy.
Chief Ticker Inspector, Cantonment Railway Station, South Western Railway, Bangalore Division. (independent witness) (8 sheets) 3 Smt. V. Malarkodi, Chief Accounts Officer, Air Cargo Complex, Kempegowda International Airport, Bangalore. (2 sheets) 4 Shri Vishwanath S Bikkannavar, Asst. Commissioner of Customs, Kempegowda International Airport, Devanahalli, Bangalore (7 sheets) 5 Smt. Esther Anil Kumar, Supdt. of Customs, Kempegowda International Airport, Devanahalli, Bangalore. (1 sheet) 6 Shri Istkar Khan, Supdt of Customs, Kempegowda International Airport, Bangalore. (2 sheets) 7 Shri Manoj Kumar, Inspector of Customs, Kempegowda International Airport, Devanahalli, Bangalore. (2 sheets) 8 Shri Muni Ram Meena, Supdt. Of Customs, Kempegowda International Airport, Devanahalli, Bangalore. (2 sheets) 9 Shri.Shree Krishna Singh, Superintendent of Customs, Kempegowda International Airport, Devanahalli, Bangalore. (2 sheets) Shri Nagendra Bihari. Singh, Superintendent of Customs, 10 Kempegowda International Airport, Devanahalli, Bangalore. (3 sheets) 17 11 Smt. V Munirathnamma, Head Hawaldar, Customs Department, Kempegowda International Airport, Bangalore. (1 sheet) 12 Shri Aravinda C.M. Sr. Executive, Pass Office, Kempegowda International Airport, Devanahalli, Bangalore-300. (1 sheet) 13 Shri. Rajanna, Telecom Technician, BSNL, Bangalore (1 sheet) 14 Shri Kaushi Murugesh, Alternate Nodal Officer, Reliance Jio, Bangalore. (1 sheet) 15 Shri Stanley Angelo, Nodal Officer, Airtel, Bangalore. (1 sheet) 16 Shri Rakesh Ranjan, Inspector of Police/CBI/ACB/Bangalore (8 sheets) 17 Shri T. Nagaraju, PC, CBI, ACB, Bangalore (1 sheet) 18 Shri T.Rajashekar, Inspector of Police, CBI, ACB, Bangalore. (8 sheets) 19 Shri.V.N. Raju, Dy.SP, CBI, ACB, Bangalore (2 sheets) 20 Shri A.V.S.Sai, Inspector of Police, CBI, ACB, Bangalore. (8 sheets) 21 Shri Manohar Reddy, PSI, CBI, ACB, Bangalore (8 sheets) 22 Shri K.S.Manjunath, PC, CBI, ACB, Bangalore (No statement) 23 Shri Manjunatha Igar S.L., Supdt. of Customs (Administration), Kempegowda Intgernational Airport, Bangalore (3 sheets) 24 Shri Somashekar, R/o Shettigere Village, Jala Hobli, Doddajala Post, Bangalore North Taluk (1 sheet) 25 Shri Parag C. Borkar, Commissioner of Customs, O/o The Principal of Customs, Airport & Air Cargo Complex, Devanahalli, Bangalore. (No statement) 18 26 Shri Najam Mohammad Rao, AVP & Head Security, Bangalore International Airport Ltd., Administrative Block, Alpha-2, Kempegowda International Airport, Bangalore-300 (No statement) 27 Shri. N.Krishna, PC, CBI, ACB, Bangalore (No statement) 28 Shri Ramteke, Sr. Scientific Officer, Grade-1, Asst. Chemical Examiner, CFSL, New Delhi. (No statement) 29 S.Venugopal, Inspector of Police, CBI, ACB, Bangalore (No statement) 30 Smt. Gayathri, Jr. Telecom Officer, Computer Billing Centre, BSNL, BGTD, Vijayanagar, Bangalore-40 (No statement) Sd/-
S.VENUGOPAL Inspector of police Central Bureau of Ivnestigation ACB, no.36, Bellary Road Ganganagar, Banglore - 560 032."
"List of Documents in RC.03(A)/2018-CBI/ACB/Bangalore Sl. No. Description of documents 1 Copy of the FIR in RC.03(A)/2018-CBI/ACB/BLR along with the copies of the complaint with enclosures, verification report of Shri Rakesh Ranjan, PI and Dy.SP letter dtd.01.03.2018 forwarded to the Honble XXI Addl. City Civil & Sessions judge (Spl. Judge for CBI Cases), Bangalore. (1 to 5 pages).
2 Copy of complaint dated 01.03.2018 preferred by Shri S. Muthukrishna to SP/CBI/ACB/Bangalore with endorsement of Shri V.N.Raju, Dy.SP, CBI, Bangalaore (original submitted to the court) (1 to 3 pages) 3 Verification Report dtd.01.03.2018 submitted by Shri Rakesh Ranjan, PI addressed to Shri V.N.Raju, Dy.SP/CBI/ACB/Bangalore, (original submitted to the court) (1 19 page) 4 Copy of the Entrustment Mahazar drawn on 01.03.2018.
(original submitted to the court) (6 sheets) (pages 1 to 12) 5 Copy of the Recovery Mahazar drawn on 01.03.2018 (original submitted to the court) (pages 1 to 13) 6 Original rough sketch of scene of crime (trap spot) showing Office cabin of the Asst. Commissioner of Customs and Toilet Block, Kempegowda International Airport, Bangalore dtd.01.03.2018, prepared in the computer in the presence of independent witnesses marked as "J1 & J2" (pages 1-2) 7 Covering letter of BSNL, vide letter No.VIG/PA-13/CBI/2017- 18/57 dtd. 13.04.2018 addressed to Inspector of Police, CBI, ACB, Bangalore enclosing the CDR dtd.01.03.2018 with 65-B certificate in r/o Tel. No.080-23331026. (1 to 4 pages) 8 Original 65 B Certificates and certified copy of the CAF & CDR dtd. 01.03.2018 in respect of Mobile No.8660693979 issued by Reliance JIO, Bangalore. (1 to 5 pages) 9 Original 65-B Certificate, issued by Bharati Airtel Ltd., enclosing the certified copy of the CAF & CDR in respect of Mobile No.9845643355 dtd.01.03.2018 of S. Muthukrishnan & Mob. No.9845747881. 4 Page 10 Original Duty Register of Batch A with effect from 02.04.2017 of Customs department, KIAL, Bangalore. (Relevant pages 68 to
71) (Containing sl. No. of the pages 1 to 88- written pages 1 to
79) 11 Certified copies of Detention Register of Kempegowda International Airport, Bengaluru Customs. (relevant entries in Sl. No.458 & 459) (1 to 6 pages) 12 Original letter dtd.20.04.2018 vide No.C.No.VIII/48/128/2016- 17 (AP-Admn) of Principal Commissioner of Customs Airport & Aircargo Complex Commissionerate, Devanahalli, Bangalore - 300 enclosing the Certified copies of the Detention memo of 20 Office of the Principal Commissioner of Customs, Airport and Air Cargo Complex, KIAL, Devanahalli, Bangalore (Pages 1 to 51) 13 Carbon copies of Original Baggage Receipts (Customs Copy of KIA) dtd.28.02.2018 & dtd.01.03.2018 (Customs Duty Receipt) along with certified copy of Customs Duty Receipt Register (state Bank of India,Air Cargo Complex Branch, Bangalore dtd. 28.02.2018 & 01.03.2018). (pages 1 to 15) 14 Office copy of the Letter No.RC.03(A)/2018/CBI/ACB/Bangalore dtd.09.04.2018 of Head of Branch, CBI, ACB, Bangalore addressed to The Director, CFSL, CBI, New Delhi alongwith Annexures- A & B for forwarding Exhibits-A,B, D & E (Pages 1 to
4) 15 Certified true copy of Service Book of Shri Attar Mohummad Shafiullah, Supdt. of Customs, Kempegowda International Airport, Bangalore (now under suspension) (pages 1 to 82) 16 Certified true copy of Service Book of Shri Abhishek Kumar, Inspector of Customs, Kempegowda International Airport, Bangalore (now under suspension) (pages 1 to 45) 17 Original letter of office of the Principal Commissioner of Customs, Airport and Air Cargo Complex, Kemepegowda International Airport, Devanhalli, Bangalore vide No. C.No.II/08/01/2018-19 A & ACC dtd.23/04.2018 addressed to SP & HOB, CBI, ACB, Bangalore. (pages 1 to 5) 18 Original letter dtd. 23.04.2018 addressed to S.Venugopal, Inspector of Police, CBI, ACB, Bangalore of Shri Najam Mohammed Rao, AVP & Head Security, Bangalore International Airport Ltd., Bangalore enclosing the copy of the Airport Pass issued in the name of Shri Rakesh Ranjan, Inspector of Police, CBI, ACB, Bangalore dtd.28.02.2018. (pages 1 to 5).
19 Printed E-Ticket with PNR No. UZ3BWU dt. 26.02.2018 in the name of Shri Sakkaraipani Muthukrishnan in r/o onward journey dated 27.02.2018 from Bangalore to Bangkok (Flight No.UL 174 from Bengaluru to Colombo and Flight No. UL 404 from Colombo to Bangkok) and return journey dated 28.02.2018 from Bangkok to Bangalore (Flight No.407 from Bangkok to Colombo & Flight 21 No.UL 173 from Colombo to Bengaluru) (pages 1 to 4).
20 Original Boarding Pass of Srilankan Airlines (Economy Class) in the name of Muthukrishnan.S in r/o Flight No. UL 404 for travel from Colombo to Bangkok on 27.02.2018. (1 page) 21 Original Boarding Pass of Srilankan Airlines (Economy Class) in the name of Muthukrishnan 'S in r/o Flight No. UL 407 for travel from Bangkok to Colombo on 28.02.2018. (1 page) 22 Original Boarding Pass of Srilankan Airlines in the name of Muthukrishnan.S in r/o Flight No. UL 173 for travel from Colombo to Bengaluru on 01.03.2018. (1 page) 23 Original Receipt bearing No.14361 & 306 for Rs.2000 Baht in respect of Visa on Arrival issued on 27.02.2018 in the name Mr.Muthukrishnan Sakkaraipani. (1 page) 24 Letter dtd. 10.03.2018 addressed to Investigation Officer, CBI, ACB, Bangalore of S.Muthukrishanan, Copy of the Passport bearing No.R3949664 held in the name of Shri Sakkaraipani Muthukrishna & orders of Hon'ble XXI Addl.City Civil & Sessions Judge (Spl.Judge for CBI cases, Bangalore) dtd.08.03.2018 (1 to 11 pages) 25 Chemical Examination Report vide Ref. No.CFSL-2018/C-363 dtd.23.04.2018 of Central Forensic Science Laboratory, CGO Complex, New Delhi. (1 page) 26 Original Sanction Order vide No.C.No.11/39/08/2018 Air Cus Vig./234/2018-19 dtd.31.08.2018 issued in the name of Shri A.M.Shafiullah, Supdt. of Customs, KIAL, Bangalore. (pages 1 to
18) 27 Original Sanction Order vide No.C.No.II/39/08/2018 Air Cus Vig./235/2018-19 dtd.31.08.2018 issued in the name of Shri Abhishek Kumar, Inspector of Customs, KIAL, Bangalore. (pages 1 to 18) 28 Photographs of the Baggages brought by the complainant Shri.S. Muthukrishnan from Bangkok signed by Independent witness and TLO Shri Rakesh Ranjan, PI/CBI/ACB/Bangalore (pages 1 to 5) 22 29 Original Letter of office of the Principal Commissioner of Customs, Airport and Air Cargo Complex, Kemepegowda International Airport, Devanhalli, Bangalore Vide No. C No.VIII/48/128/2016-17 (AP- Admn) dtd. 09.08.2018 addressed to. S. Venugopal, PI, CBI, ACB, Bangalore. enclosing the original Valuation Certificate No.NMCI/IND/17-18/364 dtd. 03.03.2018 issued by Chartered Engineer of M/s. NMCI Group and Original Challan No.58039 dtd.03.03.2018 raised on Shri Muthukrishanan for an amount of Rs.25,025/-. (pages 1 to 8) Sd/-
S. VENUGOPAL Inspector of Police Central Bureau of Investigation ACB, No. 36, Bellary Road Ganga Nagar, Bangalore-560 032"
.... .... ....
"Sl.No. Particulars of the documents
1 Photocopy of FIR in RC.03(A)/2018-CBI/ACB/BLR
2 Photocopy of complaint dated 01.03.2018 referred by Shri S.
Muthukrishna to SP/CBI/ACB/Bangalore
3 Photocopy of the Verification Report dated 01.03.2018
submitted by Shri Rakesh Ranjan, PI addressed to Shri V. N. Raju, Dy. SP/CBI/ACB/Bangalore 4 Photocopy of the Entrustment Mahazar drawn on 01.03.2018 5 Photocopy of the Recovery Mahazar drawn on 01.03.2018 6 Photocopy of Original rough sketch of scene of crime 7 Photocopy of Covering letter of BSNL vide letter No. VIG/PA-
13/CBI/2017-18/57 dated 13.04.2017 addressed to Inspector of Police, CBI, ACB, Bangalore, enclosing the CPR dated 01.03.2018 with 65B certificate in r/o Tel. No. 080-23331026.
238 Photocopy of 65B Certificates and certified copy of the CAF & CDR dated 01.03.2018 in respect of Mobile issued by Reliance JIO, Bangalore 9 Photocopy of 65-B Certificate issued by Bharti Airtel Ltd., enclosing the certified copy of the CAF & CDR in respect of Mobile No. 9845643355 dated 01.03.2018.
10 Photocopy of Duty Register of Batch A with effect from 02.04.2017 of Customs department, KIAL, Bangalore.
11 Photocopy of Certified copies of Detention Register of Kempegowda International Airport, Bangalore Customs 12 Photocopy of Certified copies of the Detention Memo of Office of the Principal Commissioner of Customs, Airport and Air Cargo Complex, KIAL, Devanahalli, Bangalore. 13 Photocopy of Duty Challans dated 01.03.2018 of Customs Duty Receipt Register.
14 Photocopy of office copy of letter No. RC.03(A)/2018/CBI/ACB/Bangalore dated 09.04.2018 of Head of Branch, CBI, ACB, Bangalore, addressed to the Director, CFSL, CBI, New Delhi, along with annexures, sealed bottles - A, B, D & E. 15 Photocopy of certified copy of Service Book of Shri Attar Mohammad Shafiullah, Superintendent of Customs, Kempegowda International Airport, Bangalore 16 Photocopy of certified copy of Service Book of Shri Abhishek Kumar, Inspector of Customs, Kempegowda International Airport, Bangalore 17 Photocopy of letter of the office of the Principal Commissioner of Customs, Airport and Air Cargo Complex, Kemepegowda International Airport, Devanahalli, Bangalore vide C. No. II/08/01/2018-19 A & ACC dated 23.04.2018 addressed to SP & HOB, CBI, ACB, Bangalore 18 Photocopy of the Airport Pass issued in the name of Shri 24 Rakesh Ranjan, Inspector of Police, CBI, ACB, Bangalore dated 28.02.2018.
19 Photocopy of Printed E-Ticket with PNR No. UZ3BWU dated 26.02.2018 in the name of Shri Sakkaraipani Muthukrishnan in r/o onward journey dated 27.02.2018 from Bangalore to Bangkok (Flight No. UL 174 from Bengaluru to Colombo & Flight No. UL 404 from Colombo to Bangkok) and return journey dated 28.02.2018 from Bangkok to Bangalore (Flight No. UL 407 from Bangkok to Colombo & Flight No. UL 173 from Colombo to Bengaluru) (04 sheets).
20 Photocopy of Boarding Pass of Sri Lankan Airlines in the name of Muthukrishnan S in r/o Flight No. UL 404 for travel from Colombo to Bangkok on 27.02.2018 21 Photocopy of Boarding Pass of Sri Lankan Airlines in the name of Muthukrishnan S in r/o Flight No. UL 407 for travel from Bangkok to Colombo on 28.02.2018 22 Photocopy of Boarding Pass of Sri Lankan Airlines in the name of Muthukrishnan S. in r/o Flight No. UL 173 for travel from Colombo to Bengaluru on 01.03.2018.
23 Photocopy of receipt bearing No. 14361 & 306 for Rs. 2000 Baht in respect of Visa on Arrival issued on 27.02.2018 in the name of Mr. Muthukrishnan Sakkaraipani.
24 Photocopy of certified copy of the Passport bearing No. R3949664 held in the name of Shri Sakkraipani Muthukrishna 25 Photocopy of Chemical Examination Report vide Ref. No. CFSL-
2018/C-363 dated 23.04.2018 of Central Forensic Science Laboratory, CGO Complex, New Delhi.
9.4 Following is the list of witnesses by whom the Articles of charge framed against Shri. A.M.Shafiullah are proposed to be sustained:
Sl.No. Names of witnesses 1 Shri A. M. Shafiullah, Superintendent of Customs, Kempegowda International Airport, Bangalore [Statement dated 27.4.2018] 25 2 Shri Abhishek Kumar, Inspector of Customs, Kempegowda International Airport, Bangalore [Statement dated 03.05.2018] 3 Shri S. Muthukrishna, Proprietor, M/s B. S. Systems, No. 1808, BEML Main Road, New Thippasandra, Bangalore & R/o No. 66/A, 3rd Cross, Venkateshwara Colony, New Thippasandra, Bangalore-560 075 (Complainant).
[Statement dated 10.04.2018] 4 Shri Yousuf Shariff, S/o Shri A. K. Shariff, Dy. Chief Ticket Inspector, Cantonment Railway Station, South Western Railway, Bangalore Division (Independent Witness).
[Statement dated 13.04.2018] 5 Smt. V. Malarkodi, Chief Accounts Officer, Air Cargo Complex, Kempegowda International Airport, Bangalore. [Statement dated 26.04.2018] 6 Shri Vishwanath S Bikkannavar, Assistant Commissioner, International Airport, Devanhalli, Bangalore [Statement dated 12.04.2018] 7 Smt. Esther Anil Kumar, Superintendent of Customs, Kempegowda International Airport, Devanahalli, Bangalore. [Statement dated 23.04.2018] 8 Shri Istkar Khan, Superintendent of Customs, Kempegowda International Airport, Bangalore.
[Statement dated 23.04.2018] 9 Shri Manoj Kumar. Inspector of Customs, Kempegowda International Airport, Devanahalli, Bangalore. [Statement dated 17.04.2018] 10 Shri Muni Ram Meena, Superintendent of Customs, Kempegowda International Airport, Devanahalli, Bangalore. [Statement dated 17.04.2018] 11 Shri Shree Krishna Singh, Superintendent of Customs, 26 Kempegowda International Airport, Devanahalli, Bangalore [Statement dated 17.04.2018] 12 Shri Nagendra Bihari Sinha, Superintendent of Customs, Kempegowda International Airport, Devanahalli, Bangalore [Statement dated 17.04.2018] 13 Smt. V. Munirathnamma, Head Havaldar, Kempegowda International Airport, Bangalore.
[Statement dated 17.04.2018] 14 Shri Aravinda C. M., Sr. Executive, Pass Office, Kempegowda International Airport, Devanahalli, Bangalore-560 300. [Statement dated 23.04.2018] 15 Shri. Rajanna, Telecom Technician, BSNL, Bangalore [Statement dated 13.04.2018] 16 Shri Kaushi Murugesh, Alternate Nodal Officer, Reliance Jio, Bangalore.
[Statement dated 18.04.2018] 17 Shri Stanley Angelo, Nodal Officer, Airtel, Bangalore.
[Statement dated 22.04.2018] 18 Shri Rakesh Ranjan, Inspector of Police, CBI, ACB, Bangalore [Statement dated 16.04.2018] 19 Shri T. Nagaraju, PC, CBI, ACB, Bangalore [Statement dated 13.04.2018] 20 Shri T. Rajashekar, Inspector of Police, CBI, ACB, Bangalore.
[Statement dated 05.04.2018] 21 Shri. V. N. Raju, Dy. SP, CBI, ACB, Bangalore.
[Statement dated 18.04.2018] 22 Shri A. V. S. Sai, Inspector of Police, CBI, ACB, Bangalore.
[Statement dated 06.04.2018] 23 Shri Manohar Reddy, PSI, CBI, ACB, Bangalore 27 [Statement dated 09.04.2018] 24 Shri K. S. Manjunath, PC, CBI, ACB, Bangalore.
[No statement was recorded] 25 Shri Manjunatha Igar S.L., Superintendent of Customs (Administration), Kempegowda International Airport, Bangalore [Statement dated 26.04.2018] 26 Shri S. Venugopal, Inspector of Police, CBI, ACB, Bangalore [No statement]"
The issue is whether these witnesses who had already deposed before the Inquiry officer in the departmental inquiry would depose otherwise in the criminal proceedings. In the considered view of the Court, it cannot be expected that they would depose otherwise.
12. The departmental inquiry is conducted on the preponderance of probability. In an inquiry where probabilities are preponderant, the petitioner is exonerated. Therefore, the respondent is not able to prove even by probabalizing that the petitioner has indulged in such acts. Therefore, if one gets exonerated, on such circumstance, these allegations can hardly be proved in a criminal trial, where it is to be proved beyond all reasonable doubt. Therefore, the findings of the Disciplinary 28 Authority would undoubtedly enure to the benefit of the petitioner, to seek obliteration of criminal proceedings that are pending on the same set of facts. This view of mine is fortified by plethora of judgments rendered by the Apex Court.
13. The Apex Court in the case of P.S. RAJYA v. STATE OF BIHAR1, holds 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 1 (1996) 9 SCC 1 29 property in the statement of imputation and the report.
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 Sri 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. 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 Sri 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 30 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 Sri 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. 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.
21. It is dear 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 31 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 Rs. 4. 75 lakhs assessed by the Bokaro Township Engineer on detailed estimate basis.
.... .... ....
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 Criminal Procedure Code 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 32 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 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 33 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."
(Emphasis supplied)
14. Later, the Apex Court though not referring to P.S. RAJYA held in identical lines in the case of RADHESHYAM KEJRIWAL V. STATE OF WEST BENGAL, reported in (2011) 3 SCC 581, 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 34 SURENDRANATH TEWARI V. CBI,2 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(l)(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) "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) 2 (2020) 9 SCC 636 35 "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 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-%, paras 26, 29 and 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 36 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."
12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follow:
(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;37
(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 Criminal Procedure Code;
(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."
............
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."
38In the aforesaid judgments, in the case of P.S. RAJYA and ASHOO SURENDRANATH TEWARI supra, the Apex Court has clearly delineated that, if 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.
15. The learned counsel for the respondent would vehemently submit that the Apex Court, in a subsequent judgment, in the case of PUNEET SABHARWAL v. CBI3, has not chosen to follow the judgment in the case of ASHOO SURENDRANATH TEWARI supra). It is the contention that the case therein before the Apex 3 2024 SCC OnLine SC 324 39 Court was also concerning the Prevention of Corruption Act. The Apex Court holds that those judgments are not applicable to the facts of the case. The Apex Court observes as follows:
"34. The appellants herein have placed reliance on the decisions of this Court in Radheyshyam Kejriwal (supra), Ashoo Surendranath Tewari (supra) and J. Sekar (supra) to argue that once there is an exoneration on merits in a civil adjudication, a criminal prosecution on the same set of facts and circumstances cannot be allowed to continue. In our opinion, none of the above-referred decisions are applicable to the facts of the present case.
35. In Radheshyam Kejriwal (supra), this Court was concerned with a fact situation where the Petitioner therein was being prosecuted under the Foreign Exchange Regulation Act, 1973 for payments made by him in Indian currency in exchange for foreign currency without any general or specific exemption from the Reserve Bank of India. The Enforcement Directorate had commenced both an adjudication proceeding and a prosecution under the provisions of the Foreign Exchange Regulation Act, 1973. It so transpired that the Adjudicating Officer found that no documentary evidence was available to prove the foundational factum of the Petitioner therein entering into the alleged transactions which fell foul of the Act and thereafter directed that the proceedings be dropped. The question which fell for the consideration before this Court was whether the result of this adjudication proceeding would lead to exoneration of the Petitioner in the criminal prosecution.
36. In this background, this Court noticed that the adjudication proceedings under the Foreign Exchange Regulation Act, 1973 involved an adjudication on whether a person had committed a contravention of any provisions of the Act. It is in this context, that the Court went on to hold that where the allegation in an adjudication proceeding and proceeding for prosecution is identical and the exoneration in the former is on 40 merits i.e. that there is no contravention of the provisions of the Act, then the trial of person concerned would be an abuse of process of the Court.
37. The decision in Radheyshyam (supra) was in a fact situation where the adjudicatory and criminal proceedings were being commenced by the same authority in exercise of powers under the same Act. Further, as this Court had noted, the civil adjudication proceedings related to an adjudication as to whether there was contravention of provisions of the Act and the Rules thereunder, which had an impact on the prosecution under the Act. However, in the present case, the appellants herein are being prosecuted under the provisions of the Prevention of Corruption Act while they seek to rely on an exoneration under the Income Tax Act. The scope of adjudication in both of these proceedings are vastly different. The authority which conducted the income tax proceedings and the authority conducting the prosecution is completely different (CBI). The CBI was not and could not have been a party to the income tax proceeding. Given the said factual background, the decision in Radheyshyam (supra) is not applicable to the present case.
38. In Ashoo Surendranath (supra), the Petitioner therein was working as a DGM at the Small Industries Development Bank of India while there was diversion of funds from the Bank. The allegation against the Petitioner therein was that he had shared the RTGS details for the account to which the amount was diverted, to another official who was the purported kingpin of the crime. The competent authority of the Bank had refused to provide a sanction for prosecution of the Petitioner therein, which was supported by the report of the Central Vigilance Commission. The question therefore posed before the Court was whether the report of the Central Vigilance Commission should lead to discharge of the Petitioner therein.
39. In the above-mentioned factual background, this Court set-out the findings of the Central Vigilance Commission which had recorded that the e-mail sent by the Petitioner therein had clearly been sent to the principal accused for the purpose of verification since the latter was the officer for 41 verification and that this showed that there was no role that the Petitioner played in perpetrating the offence. Thereafter, relying upon the decision in Radheyshyam (supra), the Court concluded that since the allegation has been found to be "not sustainable at all", the criminal prosecution could not be continued.
40. The decision in Ashoo Surendranath (supra) is not applicable to the present case because the decision in Ashoo Surendranath (supra) concerned a singular prosecution under the provisions of the Penal Code, 1860 where the sanctioning authority had, while denying sanction, recorded on merits that there was no evidence to support the prosecution case. In that context, the Court was of the opinion that a criminal proceeding could not be continued. However, in the present case, the charges were framed under the Prevention of Corruption Act, while the appellants seek to rely upon findings recorded by authorities under the Income Tax Act. The scope of adjudication in both the proceedings are markedly different and therefore the findings in the latter cannot be a ground for discharge of the Accused Persons in the former. The proceedings under the Income Tax Act and its evidentiary value remains a matter of trial and they cannot be considered as conclusive proof for discharge of an accused person."
(Emphasis supplied) The Apex Court observes that the facts situation in the case in PUNEET SABHARWAL supra were entirely different from ASHOO SURENDRANATH TEWARI or RADHESHYAM supra. The case before the Apex Court was exoneration under the Income Tax Act and consequent exoneration of the petitioner in those proceedings.
They were not disciplinary proceedings under the Rules. They were proceedings under the Income-Tax Act. Therefore, the Apex Court 42 holds that there is vast difference between the prosecution under the Act and exoneration under the Income Tax Act. Therefore, the judgment so relied upon by the learned counsel for the respondent to contend that the judgments in the case of ASHOO SURENDRANATH TEWARI or RADHESHYAM supra cannot be pressed into service, it is noted only to be rejected, as the judgment of the Apex Court in the case of PUNEET SABHARWAL supra is distinguishable on facts, obtaining in the case at hand.
16. Therefore, finding it extremely difficult to accept that criminal trial must be permitted to continue against the petitioner, in the light of the preceding analysis, I deem it appropriate to obliterate the proceedings before the Special Court, failing which, it would become an abuse of the process of law and result in miscarriage of Justice.
17. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.43
(ii) The proceedings in Special C.C.No.850 of 2018 pending before the XXI Additional City Civil and Sessions Judge and Principal Special Judge for CBI Cases, Bangalore arising out of charge sheet No.19 dated 01-03-2018 stand quashed.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against the other accused pending before any other fora.
Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:MJ