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2004 DIGILAW 587 (RAJ)

Omprakash v. State of Rajasthan

2004-04-15

N.N.MATHUR

body2004
JUDGMENT 1. - By way of instant petition under section 482 Cr.P:C., petitioner seeks to quash FIR No. 112/4.4.2002, Police Station, District Anti Corruption Bureau, Bikaner. 2. I have heard learned counsel for the petitioner and perused the impugned FIR, which has been registered against ten persons. It is alleged that under the Scheme of improvement in science education at school level for the Session 1988-1989 and 1989-90, the Education Department sanctioned 349.51 lacs. Large number of purchases were made during the year 1988-89 and 1989-90. In the Central Accountant General Report (in short 'CAG Report') 1993-94, certain adverse observations were made regarding the said purchases. Thus on 25.8.1995, a Committee was constituted to study the adverse observations made by the CAG in its report. However, the Committee did not submit its report, therefore, on 2.11.1996, another Committee headed by Special Officer, Primary and Secondary Education, was constituted. The Committee submitted its report on 31.12.1997. As far as the petitioner is concerned, he was working as Assistant Accounts Officer in the Education Department at the relevant time. It is alleged that he verified the bills submitted by M/s. Scientific Corporation, Jaipur irrespective of the fact that the said Firm was not in existence, as the same was dissolved about seven years back. 3. It is submitted by Mr. S.D. Vyas, learned counsel appearing for the petitioner, that petitioner was transferred from the office of the Assistant Accounts Officer, Department of Education to the Command Area Development, Indira Gandhi Nahar Pariyojna as Chief Accounts Officer vide order dated 4.6.1990. Pursuant to the transfer order, he had given the charge to one Devilal Joshi. He had nothing to do with the supply of goods or with the verification of bills but he was to sign and verify the bills sent to him by the higher officers or the officer in the field. It is further submitted that the petitioner retired from service on attaining the superannuation age on 31.8.1996. His pension case has been settled and he is leading a retired life. He came to know on 4.4.2002 that an FIR has been registered against him for the offence under section 13(1)(c)(d)(2), Prevention of Corruption Act r/w Secs. 420, 468, 471, 477-A, 201 and 120-B Indian Penal Code. While he remained in service upto 1996, the CAG Report was submitted in the year 1997. He came to know on 4.4.2002 that an FIR has been registered against him for the offence under section 13(1)(c)(d)(2), Prevention of Corruption Act r/w Secs. 420, 468, 471, 477-A, 201 and 120-B Indian Penal Code. While he remained in service upto 1996, the CAG Report was submitted in the year 1997. There was no adverse observation made by the CAG in its report against him as he was, at no stage, asked to submit any explanation. It is further submitted that R. 170 of the Rajasthan Service Rules (in short 'RSR') prohibits institution of a judicial proceeding against a retired person in respect of cause of action which took place more than 4 years before such institution. On the other hand, it is submitted by the learned Public Prosecutor that the matter is under investigation and it is not a fit case where this Court should interfere for quashing the FIR. 4. I have considered the rival submissions and perused the FIR. It runs in 14 pages. The only allegation against the petitioner is that he verified the bills of a Firm, which was not in existence. At the first instance, it is not for the Accounts Department to verify whether the Firm, submitting bills, is in existence. The Accounts Department is only required to examine the financial aspect of the matter. Thus, prima facie, there appears to be no case against the petitioner. Be that as it may, there is substance in the contention raised by the learned counsel, as to the prohibition provided u/R. 170 of the RSR, which reads as follows : "170. Recoveries of losses from the pension. Thus, prima facie, there appears to be no case against the petitioner. Be that as it may, there is substance in the contention raised by the learned counsel, as to the prohibition provided u/R. 170 of the RSR, which reads as follows : "170. Recoveries of losses from the pension. - The Governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement : (a) provided that such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) such department proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be instituted in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) The Rajasthan Public Service Commission shall be consulted before final orders are passed." 5. Learned counsel has also invited my attention to the Explanation added to R. 170 of the RSR, which reads as follows : "Explanation.-For the purposes of this rule. Learned counsel has also invited my attention to the Explanation added to R. 170 of the RSR, which reads as follows : "Explanation.-For the purposes of this rule. (a) a departmental proceedings shall be deemed to be instituted on the date on which (charges together with a statement of allegations on which they are based, or the proposal of Government to take disciplinary action together with the allegations on which it is proposed to be taken [are issued to] the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a Judicial proceeding shall be deemed to be instituted : (i) in the case of a criminal proceedings, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance is made, and (ii) in the case of a civil proceedings, on the date of presentation of the plaint in the Court." 6. A plain reading of the aforesaid extracted rule along with its explanation, puts a fetter that no criminal proceedings can be initiated in respect of an event which took place more than 4 years before the date on which a complaint or report of the police officer, on which the Court takes cognizance, is made with respect to an officer who was in service or retired or re-employed at that time. The embargo is on institution of a criminal proceeding. Apparently, the Governor reserves the right of withholding or withdrawing a pension or any part of it, if the pensioner is found guilty of grave misconduct or negligence during the period of his service or re-employment. Thus, when an FIR is filed, which may ultimately be reduced to judicial proceeding, it may quickly result into withholding or withdrawing of pension. Thus, the term "judicial proceeding" is of wider connotation and covers institution of the FIR. Even otherwise, the Apex Court when a stale and old prosecution is launched, has interfered with and quashed the proceedings. Reference be made to (1) AIR 1981 SC 641 ; (2) 1981 Cr.L.J. 984; (3) 1983 (1) Cr.L.R. 301; (4) AIR 1973 SC 494 . 7. It is of course true that there cannot be any arithmetical formula to declare a case stale or old. It depends on the facts of each case. Reference be made to (1) AIR 1981 SC 641 ; (2) 1981 Cr.L.J. 984; (3) 1983 (1) Cr.L.R. 301; (4) AIR 1973 SC 494 . 7. It is of course true that there cannot be any arithmetical formula to declare a case stale or old. It depends on the facts of each case. In the instant case, the allegations pertain to the years 1988 to 90. Petitioner retired in 1996. He came to know about the FIR being registered in February, 2002. He has been arrayed as one of the accused alongwith number of other persons. His alleged role is not of a specific nature. It is vague and general. Thus, in the peculiar facts and circumstances of the case, when the petitioner has already retired at the age of 58 in the year 1996 and now he must be 66, letting the investigation commence against him, is bound to cause great inconvenience and hardship to him. He may not be able to put the proper defence, when his memory is likely to have gone blurred and uncertain. Thus, to my mind, to continue the investigation against him, will be an abuse of process of Court. For the aforesaid reasons,petition deserves to be allowed. 8. Consequently, the Miscellaneous Petition is allowed. The FIR No. 112/4.4.2002 Police Station District Anti Corruption Bureau Bikaner, qua the petitioner is quashed and set aside. It is made clear that this order is being made without prejudice to the rights and contentions of the investigating Agency or the accused persons and further, it will not have any reflections on investigation in the said FIR.Petition allowed. *******