Subhransu Bhushan Singh v. State Of Bihar — 1999 DIGILAW 874 (PAT)

Judgment Nagendra Rai, J. 1. The petitioner, who is facing prosecution under Sections 406, 420, 468, 467 and 120-B, IPC has filed the present application against the order, dated 29.4.1999/1.5.1995 passed the Judicial Magistrate, Ist Class, Banka in Katoriya PS Case No. 147/93 (GR. No. 1093/93) rejecting his application to discharge him from the aforesaid offences on the ground that he has been exonerated in the departmental proceeding initiated against him with regard to the same very allegation which forms the subject-matter of prosecution under the aforesaid sections. 2. The facts necessary for disposal of the present application are that the petitioner at the relevant time was an Assistant in the Katoria Branch of Central Co-operative Bank Ltd. in the district of Banka. The FIR was lodged by the Managing Director of the said Bank on 17.9.1993 alleging inter alia that in between 6.4.1993 to 12.8.1993 Dilip Kumar Bhagat, an Assistant Manager of the aforesaid branch in connivance and in conspiracy with the Laddu Prasad Yadav, Cashier, and the petitioner, an Assistant, has misappropriated the money of the Bank by creating forged documents in the Bank Record. The police after investigation submitted charge-sheet and thereafter, the cognizance was taken. 3. At the stage of 239, Cr PC an application was filed for discharging the petitioner which was rejected by the Magistrate vide order, dated 19.2.1998 and the petitioner challenged the aforesaid order in Cr. Misc. No. 5734/98. The point which was pressed on behalf of the petitioner in that application was that since the petitioner has already been exonerated for the same charge levelled against him in the departmental proceeding his criminal prosecution is not sustainable in law. In support of the said submission the petitioner has relied upon a judgment of the Supreme Court in the case of P.S. Rajya V/s. State of Bihar, 1996 9 SCC 1 and this Court by order dated, 3.9.1998 quashed the matter and remanded the matter to the Magistrate to consider afresh the question as to whether in view of the exoneration of the petitioner in the departmental proceeding the prosecution against him shall proceed or not and thereafter, the Magistrate considered the matter and by the impugned order he has rejected the petition for discharge. 4. Learned counsel for the petitioner submitted the same very point which was agitated earlier before this Court. 4. Learned counsel for the petitioner submitted the same very point which was agitated earlier before this Court. He has stated that with regard to the same allegation a departmental proceeding as well as the criminal prosecution was launched against the petitioner. Now, as the petitioner has been exonerated in the departmental proceeding his prosecution is not sustainable in law. In support of the said submission, he has relied upon the aforesaid judgment of the Supreme Court. 5. Learned counsel for the State on the other submitted that the nature of proof and the purpose of enquiry and trial are different. As such exoneration in a departmental proceeding is no ground to quash the prosecution. He has further submitted that the aforesaid judgment of the apex Court was rendered by the apex Court in the peculiar circumstances of that case as evident from the facts of that case and as such the said case is not an authority that once a departmental proceeding ends in favour of an employee his prosecution for the offence under the Penal Code or under any other relevant law with regard to the same allegation is unsustainable in law and has to be quashed. 6. Thus, the point for determination in this case is as to whether a favourable decision in favour of a delinquent employee in a departmental proceeding will be ground to quash prosecution launched/instituted against him on the same very allegations. 7. The purpose of departmental inquiry and criminal prosecution are different. The departmental proceeding against the Government servant is held with a view to find out as to whether the alleged misconduct/misbehaviour in terms of the service rule has been proved against the Government servant or not and on prove of misconduct what penalty should be imposed upon him. The offences are registered against the concerned employee with regard to the commission of offence under the Penal Code or any other relevant law to find out as to whether the aforesaid offence has been committed or not. and if, proved what sentence has to be imposed upon the accused. 8. The offence as defined under the General Clause Act means an act or omission punishable by any law for the time being enforce. To prove the offence prosecution is launched which may end either in punishment or acquittal. 9. and if, proved what sentence has to be imposed upon the accused. 8. The offence as defined under the General Clause Act means an act or omission punishable by any law for the time being enforce. To prove the offence prosecution is launched which may end either in punishment or acquittal. 9. The mode of inquiry, standard of proof and rules governing the trial and enquiry are different. The departmental proceeding is not a judicial proceeding in the strict sense it is a quasi-judicial proceeding where the law of evidence is not applicable nor even the Code of Criminal Procedure is attracted. The proceedings are disposed of after complying with the requirement of rules of natural justice whereas in a criminal trial the law of evidence as well as the Code of Criminal Procedure or other special law governing the trial are applicable. The trial has to be held by the judicial Court whereas the departmental proceeding is initiated by the departmental authority. The mode of proof is also different in both the proceedings. In a case of departmental proceeding there is preponderance of probability whereas in criminal trial the matter has to be decided beyond reasonable doubt. The punishment awarded in a departmental proceeding is not punishment of an offence punishable under particular section of any Code. The misconduct as alleged against an employee may amount to criminal offence in the sense that same allegations may constitute an offence under the Penal Code but, the disposal of the matter in a departmental proceeding cannot be treated as investigation of the criminal charge nor the punishment/penalty imposed will amount to punishment of an offence. 10. The apex Court in the case of State of Rajasthan V/s. B.K. Meena, 1996 (6) SCC 417 , while considering the question as to whether a departmental proceeding pending against delinquent employee should be stayed or not held that the disciplinary proceedings are meant not really to punish the guilty but, to keep the administrative machinery unsullied by getting rid of bad elements. It was further observed that there is distinction between the approach and objective in the departmental inquiry and the criminal trial. It is apt to quote the relevant paragraph of the said judgment which runs as follows : "The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It was further observed that there is distinction between the approach and objective in the departmental inquiry and the criminal trial. It is apt to quote the relevant paragraph of the said judgment which runs as follows : "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 inquiry and the rules governing the inquiry and trial in both the cases are entirely distinct and different. 11. Thus, exoneration in departmental proceeding cannot be said to be a ground to quash the prosecution. In view of the object and nature of enquiry and determination of question in a different manner by two different authorities the disposal of the departmental proceeding in favour of the delinquent employee cannot be a ground to quash the criminal prosecution. There are other reasons also to support the aforesaid proposition. The departmental proceeding may be dropped either on the ground of trivial nature of the allegation or for non-production of the documents or after taking lenient view in the matter or relying upon evidence which is not admissible during the trial, or other such grounds. This apart though the allegation may be same in both the proceeding the ingredient of misconduct may be different from the ingredient of the offence for which the prosecution is lodged. In such a case the favourable order in the departmental proceeding could not be ground to quash the criminal prosecution. 12. At this stage, I would like to refer the aforesaid judgment which has been relied upon by the counsel for the petitioner in support of his submission. In that case, the Income-Tax Officer was facing a departmental proceeding as well as the prosecution on the charge of acquisition of assets disproportionate to his known income. The matter was enquired into by the Central Vigilance Commission which found that the charges were not proved against the appellant of the case. In that case, the Income-Tax Officer was facing a departmental proceeding as well as the prosecution on the charge of acquisition of assets disproportionate to his known income. The matter was enquired into by the Central Vigilance Commission which found that the charges were not proved against the appellant of the case. The Central Vigilance Commission also sought opinion from the Union Public Service Commission and the Union Public Service Commission by a long report concurred with the conclusion of Central Vigilance Commission. Thereafter, the President passed an order in his favour. The apex Court found that the charge was identical in both the mater and the reports submitted by the valuers was full of discrepancies and accordingly held in paragraph 23 that on the peculiar facts of this case, the criminal proceedings against the appellant cannot be pursued. The relevant portion of the said paragraph runs as follows : "We have already held that for the reason given, oh the peculiar facts of this case the criminal proceeding initiated against the appellant cannot be pursued. There 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." 13. In my view, the apex Court after taking into consideration the peculiar facts of that case quashed the prosecution. It has not been laid down as the extract proposition of law that in all cases where the departmental proceeding has ended in favour of the delinquent employee the prosecution with regard to the same allegation has to be quashed. In some cases which may be far and few if, the Court finds that the allegations being the same in the departmental proceeding and the criminal prosecution and the ingredients for proving the misconduct and the offence are the same then the Court for the ends of justice may interfere taking into consideration the special feature of the case. 14. The petitioner has neither filed memo of charge nor he has filed finding arrived at in the departmental proceeding. As such the Court is not in a position to know as to whether the requirements to prove the misconduct in the departmental proceeding is the same as in the criminal prosecution. 14. The petitioner has neither filed memo of charge nor he has filed finding arrived at in the departmental proceeding. As such the Court is not in a position to know as to whether the requirements to prove the misconduct in the departmental proceeding is the same as in the criminal prosecution. The order of the learned Magistrate shows that there are enough material to prove a prima facie case under the aforesaid sections and thus, in my view, the criminal prosecution cannot be quashed on the ground urged on behalf of the petitioner. 15. In the result, there is no merit in this application and the same is dismissed.