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2011 DIGILAW 607 (JHR)

Rajendra Pandey v. The State of Jharkhand

2011-07-07

D.K.SINHA

body2011
Order D.K. Sinha, J.- The petitioner has invoked the inherent power of this Court for quashment of his entire criminal proceeding and the First Information Report (FIR) with respect to Khunti P.S. Case No. 83/2006, corresponding to G.R. No.412/2006 for the alleged offence under Sections 409, 420 and 120(B) of the Indian Penal Code, pending before the Additional Chief Judicial Magistrate, Khunti. 2. Prosecution story in short was that Shri Shatrughan Pathak, the Deputy Director, Welfare, South Chotanagpur Division, Ranchi, presented a written report before the officer-in-charge of Khunti police station narrating therein that the Tribal Welfare Commissioner, Ranchi conducted spot inspection on 31.1.2006 of the various projects being Project Nos. 15/2005-06, 10/2005-06, 8/2005-06, 7/2005-06, 6/2005-06 and 1/2005-06 under Khunti MESO Area and reported that the agent of the projects Shri Rajendra Pandey, Junior Engineer, MESO Area, Khunti i.e. the petitioner herein, had withdrawn advance of Rs.7500/-in each of the projects on 5.4.2005 and without doing measurement of the work done, again withdrew the second instalment of Rs.60,000/-, Rs.70,000/-and Rs.80,000/-in one or other projects. It was further alleged in the written report that as per inquiry report, about Rs.30,000/-to Rs.40,000/-were embezzled in each of the six projects, referred to above and accordingly, under the instruction of the Secretary, Welfare Department, Government of Jharkhand, FIR was directed to be lodged against the petitioner Rajendra Pandey, Junior Engineer for legal action. 3. Learned senior counsel Mr. P.P.N. Roy, at the outset, submitted that for the same charge, a departmental proceeding was initiated against the petitioner and after inquiry, a report was submitted to the Government and the Government after having been satisfied with the report of the inquiry officer, exonerated the petitioner from all the charges, which were levelled against him by the order dated 17.3.2008 with the copy of the said order forwarded to the petitioner vide memo No.722 dated 17.3.2008 (Annexure-2) on the basis of which he was promoted to the post of Assistant Engineer, Irrigation Department, Government of Jharkhand, Ranchi. 4. Mr. 4. Mr. Roy, the learned senior counsel, further explained with reference to Annexure-2 of the petition, referred to hereinabove, that as many as four charges were framed against the petitioner Rajendra Pandey in the departmental proceeding, almost with the similar allegation that was made in the FIR, but the inquiry report indicated that none of the charges could be established against him and therefore, the Deputy Secretary of the Government of Jharkhand under the instruction of the Government observed that after scrutiny of the entire allegations and the charges levelled against the petitioner , the charges were found not proved and hence, he was exonerated from all the charges. 5. The learned senior counsel explained that an identical issue came up for consideration before the Supreme Court in P.S. Rajya versus State of Bihar, reported in 1996 Supreme Court Cases (Cri) 897, wherein the Apex Court observed, “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.” The Apex Court further observed, “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. 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 Code of Criminal Procedure for quashing an FIR or a complaint. 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 Code of Criminal Procedure 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 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 basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 6. A counter-affidavit has been filed on behalf of the State-opposite party contending, inter alia, that during course of investigation, it could be gathered that most of the work was done through machine instead of manual labour and in this regard, a letter was sent to the Special Secretary, Tribal Welfare Department, Government of Jharkhand for sending the concerned file as required for verification but the required file was never sent to the Investigating Officer and therefore, the investigation was pending. State-opposite party admitted that the petitioner herein was exonerated in the departmental proceeding but investigation in criminal case was still pending against him and reliance has been placed on the principle laid down in P.S. Rajya’s case (supra) wherein it was observed 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 and hence, the petitioner, who was the Junior Engineer, cannot be exonerated from his criminal liability. 7. I find that the State-opposite party has not completed the observation, which has been made by the Apex Court in P.S. Rajya’s case (supra) wherein the part of the observation referred to in the counter affidavit was completed with further observation, “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.” 8. I find that the State-opposite party has admitted that the petitioner, the then Junior Engineer has been exonerated from all the four charges, which were framed against him during his departmental proceeding, which were of much relevance of the offences alleged in the FIR. I find that the petitioner has been promoted to the post of Assistant Engineer in the Irrigation Department of the Government of Jharkhand and thereby, he has attained the higher post of a public servant. Relying upon the P.S. Rajya’s case (supra) and following the principles laid down therein, I find that the criminal proceeding of the petitioner Rajendra Pandey would tantamount to misuse of the process of the Court. 9. For the reasons discussed above, this petition is allowed and the criminal proceedings of the petitioner Rajendra Pandey, arising out of Khunti P.S. Case No. 83/2006, corresponding to G.R. No.412/2006 including the FIR is quashed.