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Jharkhand High Court · body

2012 DIGILAW 1634 (JHR)

Chandrika Prasad Kiran v. State of Jharkhand

2012-11-09

R.R.PRASAD

body2012
ORDER 1. This application has been filed for quashing of the F.I.R. of Sadar (Hazaribagh) P.S. case No. 240 of 2011 registered under Sections 467, 468, 471, 120(B) of the Indian Penal Code. 2. The F.I.R. was lodged by one Chandramani Prasad, Under Secretary of Home, Department, Government of Jharkhand wherein it has been alleged that in the year 2004 process of recruitment of Constables in four districts Hazaribagh, Koderma, Giridih and Chatra was undertaken by the Selection Committee comprising of Superintendent of Police of all the four districts one Deputy Superintendent of Police and the District Welfare Officer. The petitioner being the Superintendent of Police, Chatra at the relevant point of time was one of the members whereas Superintendent of Police, Koderma being senior most at the relevant point of time was the Chairman. When Superintendent of Police, Koderma was transferred, the petitioner being senior most became the Chairman of the Selection Committee. During whose chairmanship, physical test for the purpose of recruitment of Constables for the district of Chatra was conducted. When the petitioner was transferred to Headquarters Ranchi Special Branch senior most Superintendent of Police took over the charge of Chairman of the Selection Committee in whose period final list of the result was prepared. While preparing the final list several irregularities were detected wherein even the persons who had not applied within time had been included in the list. That apart, over writings were made over the entries mode with respect to height academic qualification date of birth etc. 3. On detection of such irregularities preliminary enquiry was ordered to be made. During preliminary enquiry culpability of this petitioner was found and as such. F.I.R. was lodged which is under challenge. 4. Mr. B.M. Tripathy, senior counsel appearing for the petitioner submitted that this petitioner a retired I.A.S. Officer has been alleged to have committed an offence of forgery misappropriation cheating etc. in August 2004 whereas the case has been lodged on 27.4.2011 after the petitioner got retired on 30.6.2007. Thus after more than four years of the date of occurrence the case has been lodged though under Rule 6(1)(C) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 there has been complete bar in lodging criminal case after four years of the occurrence and as such. F.I.R. is fit to be quashed. 5. Learned counsel further submitted that in similar situation. F.I.R. is fit to be quashed. 5. Learned counsel further submitted that in similar situation. Punjab and Haryana High Court in a case of Des Raj Singal vs. State of Punjab, 1986 (89) 1 Pun LR 82 quashed the criminal proceeding initiated against Des Raj Singal a member of the Punjab Civil Service keeping in view similar provision as is there in All India Services (Death-cum-Retirement Benefits) Rules when the proceeding had been initiated after more than four years of the occurrence. 6. It was further pointed out that the State of Punjab being aggrieved with that judgment when preferred Cr. Appeal No. 40 of 1987 before the Hon'ble Supreme Court it got dismissed. 7. Mr. Tripathy learned senior counsel submitted that there appears to be purpose to have such kind of rule framed under Article 309 of the Constitution of India as putting a person who retired four years before to face prosecution would cause serious prejudice on account of memory being faded away and therefore under the rule barriers of four years has been put in beyond which prosecution cannot be lodged. In spite of clear stipulation under the rule in this regard a case has been registered in the year 2011 against the petitioner who got retired in the year 2007 whereas the occurrence is said to have taken place in the year 2004. Under the circumstances F.I.R. is fit to be quashed. 8. In view of the submission the provision as contained in Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 needs to be taken notice of which reads as follows:– 6. Recovery from pension – 6(1) The Central Government reserves to itself the right of withholding a pension or gratuity or both either in full or in part whether permanently or for a specified period and of ordering recovery from pension or gratuity of the whole or part of any pecuniary loss caused to the Central or a State Government if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service, including service rendered on re-employment after retirement. Provided that no such order shall be passed without consulting the Union Public Service Commission:– Provided further that – (a) Such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his reemployment shall after the final retirement of the pensioner be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service. (b) Such departmental proceeding if not instituted while the pensioner was in service whether before his retirement or during his re-employment:– (1) Shall not be instituted save with the sanction of the Central Government; (ii) Shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) Shall be conducted by such authority and in such place or places as the Central Government may direct and in accordance with the procedure applicable to proceeding on which an order of dismissal from service may be made; (c) Such judicial proceeding if not instituted while the pensioner was in service whether before his retirement or during his re-employment shall not be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution. Explanation – For the purpose of this rule:– (a) A departmental proceeding shall be deemed to be instituted when the charges framed against the pensioner are issued to him or if he has been placed under suspension from an earlier date on such date; and (b) A judicial proceeding shall be deemed to be instituted:– 1. In the case of criminal proceeding on the date on which a complaint is made or a charge-sheet is submitted to the criminal Court; and 2. In the case of civil proceedings on the date on which the plaint is presented or as the case may be an application is made to a civil Court. 9. The aforesaid rule seems to have been made in exercise of power as enshrined in Article 309 which empowers a competent authority to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. 10. 9. The aforesaid rule seems to have been made in exercise of power as enshrined in Article 309 which empowers a competent authority to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. 10. It has been well known that the "conditions of service" as stipulated under Article 309 may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave, provident fund, gratuity, confirmation, promotion, seniority, tenure or termination of service compulsory or pre-mature retirement, superannuation, pension deputation and disciplinary proceedings. Therefore the provision as contained in Rule 6 of the aforesaid Rules obviously related to the conditions of service. In such situation whether Government servant should be prosecuted or not for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. 11. However in a case of Des Raj Singal vs. State of Punjab (supra) when such issue arose, Punjab and Haryana High Court keeping in view Rule 2.2 of the Punjab Civil Service Rules, Volume II which is similar to Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules 1958 did hold that rule cannot be said to have a limited application to pensioners only and not to Government's power in prosecuting the pensioners. 12. It has been further held that the intention of the Governor in providing limitation in the rule as it is clear was to serve dual purpose not to put to a person to trial beyond the specified period and if timely brought to trial on a grave misconduct or negligence, pension could be withheld or withdrawn on the establishment of the charge. 13. It was further held that launching of prosecution after four years of the retirement of the Government servant would amount to abuse of the process of the Court causing serious prejudice to the accused as at an advance age one's memory is likely to fade away. 14. That order was challenged by the State of Punjab before the Hon'ble Supreme Court in Cr. App. No. 40 of 1987 which was dismissed after observing that it would be futile exercise to consider the question of law involved in this appeal for the reason that the respondent has retired as long ago as on 31.8.1979. 14. That order was challenged by the State of Punjab before the Hon'ble Supreme Court in Cr. App. No. 40 of 1987 which was dismissed after observing that it would be futile exercise to consider the question of law involved in this appeal for the reason that the respondent has retired as long ago as on 31.8.1979. However, it was made clear that they have not gone into the correctness or otherwise of the view taken by the High Court which issue needs to he decided in an appropriate case. 15. Subsequently, in a case of State of Punjab vs. Kailash Nath, AIR 1989 SC 558 : 1989 1 SCC 321 , where the same issue fell for consideration as to whether Rule 2.2 of the Punjab Civil Service Rule, Volume II prescribing that no such judicial proceeding if not instituted while the officer was in service before his retirement or during his re-employment shall be instituted in respect of cause of action which arose or event which took place more than four years before and that whether such institution is confined to the matter relating to pension or puts embargo upon the power of the State not to launch prosecution after the period stipulated therein. 16. Their Lordships after considering the fact that said rule has been framed in exercise of power given under Article 309 of the Constitution of India which related to the conditions of service such as, salary or wages, increment, pay-scale, gratuity, promotion. seniority, etc. and as such, rule containing an absolute or general embargo on prosecution of a Government servant after his retirement for grave misconduct or negligence during course of service does not fall within the purview of laying down conditions of service under Article 309 and as such, it was held that Rule 2.2 has not been framed for the purpose of putting embargo on the authority of the State to launch prosecution against the Government servant after the period as stipulated under the said Rule, rather it has been framed to provide an exception to the power of the Government in the matter of withholding or withdrawing of pension of retired Government servant. Ultimately, it was held that the said provision cannot be pressed into service to defeat the prosecution on the threshold itself. Ultimately, it was held that the said provision cannot be pressed into service to defeat the prosecution on the threshold itself. However, the Hon'ble Supreme Court keeping in view the fact that the F.I.R. had been lodged after six years of the accrual of the cause of action which had been quashed by the Punjab & Haryana High Court did not interfere with the impugned order. 17. Taking cue from that part of the judgment, argument was advanced on behalf of the petitioner that in the instant case also prosecution was launched after almost eight years of the accrual of the cause of action and as such it is fit to be quashed under the principle of denial to right to speedy Justice. 18. In the context of the submission, I would straightway refer to a decision rendered in a case of P. Ramachandra Rao vs. State of Karnataka, 2002 (2) East Cr C 310 (SC): (2002) 4 SCC 578 wherein their Lordships were pleased to hold as under:– "It is, therefore well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in Court but also includes within its sweep the proceeding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to an particular category of cases. In every case where the right to speedy trial is alleged to have been infringed, the Court has to perform the balancing act upon taking into consideration all the attendant circumstances enumerated above and determine in each case whether the right to speedy trial has been denied in a given case. Where the Court comes to the conclusion that the right to speedy trial an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the Court feels• that having regard to the nature of offence and other relevant circumstances quashing of proceedings may not be in the interest of justice. In such a situation it is open to the Court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial." 19. In such a situation it is open to the Court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial." 19. Here in the instant case, it has been alleged that the petitioner by making forgery and manipulation in the relevant record included the persons in the select list who were not entitled to be included and thereby meritorious students were left out. 20. Under the circumstances, I do feel that quashing of the proceeding may not be in the interest of justice. 21. Thus, I do not find any merit in this application. Hence, it is dismissed. 22. However, before parting with the order and keeping in view the observations made by the Hon'ble Supreme Court in the case referred to above, it would be desirable that the investigation be completed as early as possible. Application dismissed.