Allahabad High Court
Rajesh Kumar Pandey [At 1:15 P.M.] vs State Of U.P. Thru. Secy. Home Civil ... on 16 March, 2018
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 11 Case :- U/S 482/378/407 No. - 1548 of 2011 Applicant :- Rajesh Kumar Pandey Opposite Party :- State Of U.P. Thru. Secy. Home Civil Secretriat Lucknow Counsel for Applicant :- Anurag Narain Counsel for Opposite Party :- Govt. Advocate Hon'ble Chandra Dhari Singh,J.
01. Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
02. The instant application under Section 482 Cr.P.C. has been filed against the summoning order dated 12.01.2011 passed by Additional Chief Judicial Magistrate III, Faizabad in Case No.14660 of 2009, under Section 409 I.P.C., P.S. Ram Jaham Bhumi, Faizabad.
03. Brief facts of the case are that on 05.07.2001, an F.I.R. was lodged against the applicant under Section 409 I.P.C., P.S. Ram Jaham Bhumi, Faizabad. The police had started investigation and after concluding investigation, it was found that the applicant has no role in the offence as alleged in the F.I.R., therefore, on 28.02.2002, chargesheet was filed only against one Dr. R.C. Dhaon. In the aforesaid matter the Magistrate has taken cognizance and proceeded for trial against the accused Dr. R.C. Dhaon. After nine years, on 05.02.2010, he had moved an application to the Director General of Police in which, it was stated that the applicant was also involved in the said crime. On the application moved by the accused Dr. R.C. Dhaon, the police had started the investigation and after completion of the investigation the police filed a charge-sheet against the applicant on 01.12.2010. On the chargesheet submitted by the police against the applicant, the Additional Chief Judicial Magistrate III, Faizabad took cognizance and summoned the applicant vide order dated 12.01.2011 for trial in the offence punishable under Section 409 I.P.C.
04. Learned counsel for the applicant contended that on the basis of statement recorded under Section 161 Cr.P.C. of some of witnesses and after considering the departmental enquiry, the police had filed the charge-sheet solely against Dr. R.C. Dhaon. He submitted that merely on the basis of application moved by the accused Dr. R.C. Dhaon after nine years. The Investigating Officer filed a chargesheet against the applicant for the offence punishable under Section 409 I.P.C. It is contended that no new material was collected by the Investigating Officer against the applicant in further investigation.
05. He further contended that the investigation was initiated by the police merely on the basis of application moved by the accused Dr. R.C. Dhaon. Neither the police has obtained an order from the court where the trial was commenced nor the police collected any new material against the applicant. This is a clear cut misuse of legal process. The applicant is law abiding citizen and has no criminal background.
06. Learned counsel for the applicant submitted that the applicant is a public servant , therefore, he is protected under Section 197 Cr.P.C. and in absence of prior sanction, cognizance could not be taken against him. It is contended that in the first charge-sheet he was not named and therefore, his summoning on the basis of supplementary chargesheet is not legal as there was no material against him.
07. On the other hand, Sri Shiv Nath Tilhari, learned A.G.A. on behalf of the State vehemently opposed the contentions made by the learned counsel for the applicant. He submitted that offence committed by the applicant under Section 409 I.P.C. cannot be said to be an act done in discharge of his official duties as a public servant,therefore, ground of prior sanction under Section 197 Cr.P.C. taken by the learned counsel for the applicant has no force and deserves to be rejected.
08. He further contended that the act done by the public servant is in his official capacity or not is a question of fact which requires evidence in each case. The settled position of law is that the disputed questions of facts cannot be decided in the proceedings under Section 482 Cr.P.C. and as such the stage of examination of the validity of the sanction is during trial. In the matter of C.B.I vs. Ashok Kumar Agrawal 2013 (15) SCC 222, the Hon'ble Supreme Court held that stage of examination of the validity of the sanction is during trial and the same should not be examined during the stage of enquiry or at pre-trial stage.
09. It is contended that the second ground that in the first charge-sheet the applicant was not named and cognizance on the basis of supplementary chargesheet is not sustainable has no force and deserves to be rejected.
10. He further submitted that further investigation is permissible under Section 173 (8) Cr.P.C.. The further investigation is where the Investigating Officer obtained further oral or documentary evidence after the final reports have been filed. This power is vested with the executive. It is continuation of a previous investigation and, therefore, is understood and described as a further investigation. Such supplementary report shall be dealt with as a part of the primary report. Both the reports have to be read co-jointly. A further investigation is permissible, even if, an order of cognizance of offence has been made by the Magistrate. Filing of a final police report or charge-sheet does not preclude the Investigating Officer to carry on further investigation in terms of Section 173(8) Cr.P.C.
11. Sri Tilhari further submitted that as the further investigation is permissible, there is no illegality in filing supplementary charge-sheet and, therefore, the order of summoning the accused/applicant on the basis thereof does not suffer from any illegality.
12. He submitted that the ground taken by the applicant that in the departmental proceedings he has been awarded only adverse entry and sole responsibility has been assigned to Dr. R.C. Dhaon and, therefore, criminal proceeding against the applicant is bad in the eyes of law. It is well settled in law that there is nothing wrong in parallel proceedings being taken one by way of the disciplinary proceedings and the other by way of criminal proceedings. The departmental enquiry is independent of criminal proceedings. The proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. The standard of proof required in departmental proceeding is different than that required in a criminal case. Therefore, application under Section 482 Cr.P.C. has no force and deserves to be dismissed.
13. Before discussing which of the submissions ought to prevail, I shall in the foremost deal with the legal principles of sanction under Section 197 Cr.P.C. Relevant portion regarding prior sanction under Section 197 Cr.P.C. reads as follows:-
Section 197 Cr.P.C. reads as under:
"197.Prosecution of Judges and public servants.-
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
The legal mandate enshrined under Section 197 Cr.P.C. is that no court shall take cognizance of such offence except with previous sanction of the government, if government servant has committed the offence while acting or purporting to act in the discharge of his official duty.
14. The applicant has assailed the validity of the impugned order and the proceedings of the case mainly on the following grounds:-
(i) The applicant is a public servant,therefore, he is protected under Section 197 Cr.P.C. and in absence of prior sanction, cognizance could not be taken against him.
(ii) In the first chargesheet, he was not named and, therefore,his summoning on the basis of supplementary charge-sheet is not legal as there was no material against him.
(iii) It has been argued that in the departmental inquiry only adverse entry has been awarded to the applicant and Dr. R. C. Dhaon has been held responsible for the alleged act.
15. In the matter in hand, the allegations against the present applicant is that he dishonestly misappropriated the money of G.P.F. by preparing forged documents. The question arises whether dishonest act and thereby misappropriation of money by preparing forged documents can be said to be an act in discharge of official duty ?
16. In the matter of N. Bhargawan Pillai vs. State of Kerala 2004 (13) SCC 217, the Hon'ble Supreme Court held in para-12 as under :-
" 12. As noted in State of M.P. v. M.P. Gupta (JT 2003 (10) SC 32), sanction under Section 197 of the Code is not a condition precedent for an offence under Section 409 IPC."
17. In the case of State of Kerala vs. V. Padmnabhan Nair 1999 (5) SCC 690 the Hon'ble Supreme Court has held as under:-
"7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of the IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR (1955) SC 287 and also Amrik Singh v. State of Pepsu, AIR (1955) SC 309 that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad (supra) as follows :
"As far as the offence of criminal conspiracy punishable under Section 120- B, read with Section 409 I.P.C. is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure, To put it shortly, it is no part of the duty of a public servant. While discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.''
18. In the case of S. B. Saha vs. M.S. Kochar 1979 (4) SCC 177 the Hon'ble Supreme Court has held in paras-28 and 29 as under:-
"28.There are several decisions of this Court, such as, Om Parkash Gupta v. State of Uttar Pradesh, 1957 SCR 423, Baijnath v. State of Madhya Pradesh (supra), Harihar Prasad v. State of Bihar, (1972) 3 SCC 89 wherein it has been held that sanction under Section 197, Criminal Procedure Code for prosecution for an offence under Section 409, Indian Penal Code was not necessary. In Om Parkash Gupta's case (ibid) it was held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant. Since this rule is not absolute, the question being dependent on the facts of each case, we do not think it necessary to burden this judgment with a survey of all those cases.
29. In the light of all that has been said above, we are of opinion that on the facts of the present case, sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Sections 409/120-B, Indian Penal Code, because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants. At the most, the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act."
The Hon'ble Supreme Court has held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant. Section under Section 197 Cr.P.C. for the offence under Section 409 I.P.C. is not necessary.
19. In the matter of Om Kumar Dhankar vs. State of Haryana and another reported in 2012 (11) SCC 252, the Hon'ble Supreme Court held that the offence of cheating under Sections 420,467,468, 471 and 120-B I.P.C. can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty In view of the aforesaid law, the offence committed by the applicant under Sections 409 I.P.C. cannot be said to be an act done in discharge of his official duties as a public servant, therefore, the ground taken by the applicant has no force and deserves to be rejected.
20. The act done by the public servant is in his official capacity or not is a question of fact which requires evidence in each case. The settle position of law is that disputed questions of facts cannot be decided in the proceedings under Section 482 Cr.P.C. and as such the stage of examination of the validity of the sanction is during trial. In the matter of C.B.I. vs. Ashok Kumar Agrawal 2013 (15) SCC 222,the Hon'ble Supreme Court held that stage of examination of the validity of the sanction is during trial and the same should not be examined during the stage of enquiry or at pre trial stage.
21. The submission of the learned counsel for the applicant is that in the first charge-sheet the applicant was not named and the cognizance on the basis of supplementary charge-sheet is not sustainable also has no force.
22. In the case of Vinay Tyagi vs. Irshad Ali 2013 95) SCC 762 the Hon'ble Supreme Court has held as follows:-
"22. ''Further investigation' is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ''further investigation'. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ''supplementary report'. ''Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ''reinvestigation', ''fresh' or ''de novo' investigation."
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct ''further investigation' or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct ''further investigation' and file ''supplementary report' with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct ''further investigation' and/or to file a ''supplementary report' will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.
50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedence, as aforenoticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.
23. In the case of Dinesh Dalmia vs. C.B.I. 2007 (8) SCC 770 the Hon'ble Supreme Court has held as follows:-
"20.Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate.
38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by the Parliament at two stages; pre-cognizance and post cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge sheet is not filed within the meaning of Sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of Sub-section (8) of Section 173 of the Code.
39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sub-section (2) of Section 173 and further investigation contemplated under Sub-section (8) thereof. Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code."
24. The submission of the learned counsel for the applicant is that in the departmental proceedings the applicant has been awarded only adverse entry and sole responsibility has been assigned to Dr. Dhawan, therefore, criminal proceedings against the applicant are bad in the eyes of law. The said ground taken by the learned counsel for the applicant is not sustainable and has no force as it is well settled that there is nothing wrong in parallel proceedings being taken one by way of the disciplinary proceedings and the other by way of criminal proceedings. The departmental enquiry is independent of criminal proceedings. The proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. The standard of proof required in departmental proceeding is different than that required in a criminal case.
25. In the case of Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda vs. Mohd. Yousuf Miya, 1997 92) SCC 699 the Hon'ble Supreme Court held as under:-
"6.The rival contentions give rise to the question: whether it would be right to stay the criminal proceedings pending departmental enquiry? This Court in Meena's case (1996 AIR SCW 4160) had elaborately considered the entire case law including Kusheshwar Dubey's case (AIR 1988 SC 2118) relieving the necessity to consider them once over. The Bench, to which one of us, K. Venkataswami, J., was a member, had concluded thus:
"It would be evident from the above decisions that each of them, starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be `desirable', `advisable' or `appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, `advisability', `desirability', or `propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be - delayed unduly. so far as criminal cases are concerned, it is well- known that they drag on endlessly where high officials or persons holding high public officers are involved. They get bogged down on one or the other ground, They hardly even reach a prompt conclusion. That is the reality in spite of repeated advise and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even whether the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should dealt with promptly according to law. it is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay if disciplinary proceedings, we found it necessary to emphasis some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above."
There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course nut a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."
We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Actstands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in the that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
26. In the case of Stanzen Toyotetsu India P. Ltd. vs. Girish V and others 2014 (3) SCC 636 the Hon'ble Supreme Court held as under:-
"9. We have heard learned counsel for the parties at some length. The only question that falls for determination in the above backdrop is whether the Courts below were justified in staying the on-going disciplinary proceedings pending conclusion of the trial in the criminal case registered and filed against the respondents. The answer to that question would primarily depend upon whether there is any legal bar to the continuance of the disciplinary proceedings against the employees based on an incident which is also the subject matter of criminal case against such employees. It would also depend upon the nature of the charges in the criminal case filed against the employees and whether the case involves complicated questions of law and fact. The possibility of prejudice to the employees accused in the criminal case on account of the parallel disciplinary enquiry going ahead is another dimension which will have to be addressed while permitting or staying such disciplinary enquiry proceedings. The law on the subject is fairly well- settled for similar issues and has often engaged the attention of this Court in varied fact situations. Although the pronouncements of this Court have stopped short of prescribing any strait-jacket formula for application to all cases the decisions of this Court have identified the broad approach to be adopted in such matters leaving it for the Courts concerned to take an appropriate view in the peculiar facts and circumstances of each case that comes up before them. Suffice it to say that there is no short cut solution to the problem. What is, however, fairly well settled and was not disputed even before us is that there is no legal bar to the conduct of the disciplinary proceedings and a criminal trial simultaneously. In Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699, this Court declared that the purpose underlying departmental proceedings is distinctly different from the purpose behind prosecution of offenders for commission of offences by them. While criminal prosecution for an offence is launched for violation of a duty that the offender owes to the society, departmental enquiry is aimed at maintaining discipline and efficiency in service. The difference in the standard of proof and the application of the rules of evidence to one and inapplicability to the other was also explained and highlighted only to explain that conceptually the two operate in different spheres and are intended to serve distinctly different purposes. The relatively recent decision of this Court in Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (2012) 1 SCC 442, is a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:
"(i) There is no legal bar for both proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common."
27. This application has been filed under Section 482 Cr.P.C. The scope of 482 Cr.P.C. has been considered by Hon'ble the Apex Court in various judgments.
The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including this Court, has reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C.
28. In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, it was reiterated that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.
29. In view of the above, I do not find any error of law or perversity in the order dated 12.01.2011 passed by Additional Chief Judicial Magistrate III, Faizabad in Case No.14660 of 2009, as well as charge-sheet dated 01.12.2010 arising out of case crime no.77 of 2010, under Section 409 I.P.C., P.S.Ram Janam Bhumi, Faizabad.
30. The present application is accordingly dismissed.
(Chandra Dhari Singh,J.) Order Date:-16.03.2018 Asha