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2012 DIGILAW 1251 (RAJ)

Sohan Lal v. State of Rajasthan

2012-05-13

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the orders dated 8.11.2008 and 10.2.2009 passed by the learned Additional Chief Judicial Magistrate, Sri Ganganagar reading out accusation to the petitioner for the offence under Section 167 Indian Penal Code and rejecting the application filed by the petitioner under Section 197 Criminal Procedure Code respectively, as affirmed by the learned Sessions Judge, Sri Ganganagar by his order dated 10.2.2009. 2. Mr. M.K. Garg, learned counsel for the petitioner submits that the petitioner was the Patwari at the relevant time and the allegation against him is that he made certain incorrect entries in the revenue records. He submits that a departmental action was initiated against the petitioner in relation to the very same allegation and the Divisional Commissioner, Bikaner, in an appeal filed by the petitioner against the order of punishment passed upon the petitioner by the District Collector, by the order dated 19.5.2010 has come to the conclusion that ex facie the act of the petitioner in making the disputed entries in the revenue record was perfectly correct and thereafter the petitioner has been exonerated from the departmental charges. Thus, placing reliance on a decision of the Hon'ble Apex Court on a decision in Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3 SCC 581 , He submits that the criminal prosecution of the petitioner cannot be permitted to be continued for the same allegations which were also the subject- matter of the Departmental Enquiry. 3. Per contra, learned counsel for the complainant submits that the petitioner has been prima facie found responsible for making of incorrect entries in this case and that the evidence has already been started in the trial Court, thus, this Court should be loathe from interfering in the validly initiated proceedings against the petitioner. 4. I have given my thoughtful consideration to the rival arguments advanced at the bar and carefully gone through the impugned order as well as the order dated 19.5.2010 passed by the learned Divisional Commissioner, Bikaner. 5. 4. I have given my thoughtful consideration to the rival arguments advanced at the bar and carefully gone through the impugned order as well as the order dated 19.5.2010 passed by the learned Divisional Commissioner, Bikaner. 5. From a perusal of the impugned orders passed by the learned Courts below as also the order dated 19.5.2010 passed by the Divisional Commissioner, Bikaner, it becomes apparent that for the very same allegations which are the subject matter of the charge framed against the petitioner in the instant case, a departmental enquiry was held against the petitioner and he was initially punished by the District Collector, Sri Ganganagar and on an appeal being filed, the Divisional Commissioner has exonerated the petitioner from the charges. The contents of the departmental charges against the petitioner are identical to the subject matter of charge at hand. 6. Resultantly, when once the Departmental Authority, after enquiry, has held that the petitioner is not responsible for the charges levelled against him in the departmental enquiry, then permitting the criminal proceedings to continue against the petitioner on the very same charges tantamounts to an abuse of process of the Court. The Hon'ble Apex Court, in the case of Radheshyam Kejriwal v. State of West Bengal & Anr. (supra) has held that in a case of exoneration on merits in such adjudication proceedings, where the allegations are found to be not sustainable at all and person concerned is held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue. 7. The Hon'ble Apex Court, in the case of Radheshyam Kejrizval (supra) held as below: 19. We find substance in the submission of Mr. Sharan. There may appear to be some conflict between the views in the case of Standard Charted Bank (supra) and L.R. Melzvani (supra) holding that adjudication proceeding and criminal proceeding are two independent proceedings and both can go on simultaneously and finding in the adjudication proceeding is not binding on the criminal proceeding and the judgments of this Court in the case of Uttam Chand (supra), G.L. Didzvania (supra) and K.C. Builders (supra) wherein this Court had taken a view that when there is categorical finding in the adjudication proceeding exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. Judgments of this Court are not to be read as statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases tinder the Income Tax Act. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii) Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceeding 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 Code of Criminal Procedure; (vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the Court." 8. In view of the authoritative pronouncement of the Hon'ble Apex Court in the aforesaid case, it becomes apparent that any further prosecution of the petitioner in this case would clearly be an abuse of process of the Court.Resultantly, the miscellaneous petition succeeds. In view of the authoritative pronouncement of the Hon'ble Apex Court in the aforesaid case, it becomes apparent that any further prosecution of the petitioner in this case would clearly be an abuse of process of the Court.Resultantly, the miscellaneous petition succeeds. The impugned orders dated 10.12.2008 and 10.2.2009 passed by the learned trial Court and the lower appellate Court respectively, are hereby set aside and the petitioner is discharged from the offence under Section 167 Indian Penal Code The stay petition also stands disposed of.Petition allowed. *******