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Jharkhand High Court · body

2013 DIGILAW 1121 (JHR)

Rabindra Nath v. State of Jharkhand

2013-09-26

R.R.PRASAD

body2013
ORDER I.A. No. 7518 of 2013 By the Court.-Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. Learned counsel appearing for the petitioner submits that this case had been filed for quashing of the FIR but while the matter was pending, the Court upon submission of the charge-sheet has taken cognizance of the offence punishable under Sections 409 and 418 of the Indian Penal Code vide order dated 16.8.2008 which has been challenged by way of interlocutory application and therefore, prayer made in the interlocutory application be allowed to be incorporated in the main application. 3. The prayer made in the interlocutory application is hereby allowed. 4. Let I.A form part of the main application. Cr. M.P. No. 956 of 2008 5. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 6. Initially this application was filed for quashing of the FIR of Sanha P.S. Case No. 50 of 2002 registered under Sections 409 and 418 of the Indian Penal Code. Subsequently, upon submission of the charge-sheet, cognizance of the offences punishable under Sections 409 and 418 of the Indian Penal Code was taken, vide order dated 16.8.2008. That was challenged by way of interlocutory application. 7. The case of the prosecution is that on 27.6.2002 when the then Minister of Law and Justice, Government of Jharkhand along with Home Commissioner and other officials visited the work site of the construction of road which was to be constructed under the scheme of Guaranteed Employment Yojna from Senha P.W.D Road to B.P.D.P. via Murki, it was found that instead of Grade I stone, boulders are being used and that too most of the boulders were dead stone. 8. Further it has been alleged that bounders had been brought from a distance of 1/2 K. M. but it was shown to have been brought from a place which is 7 K.M. away and accordingly, carriage charges were shown in the measurement book. 9. Further it has been alleged that within 5 years the said scheme for construction was sanctioned, though it was not permissible and that at the time of inspection, measurement book was not made available to them. 10. Thus, it has been alleged that the then Assistant Engineer as well as Junior Engineer (petitioner) committed offence of misappropriation as well as cheating. 10. Thus, it has been alleged that the then Assistant Engineer as well as Junior Engineer (petitioner) committed offence of misappropriation as well as cheating. As I have already stated that on submission of the charge-sheet, cognizance of the offence punishable under, Sections 409 and 418 has been taken. 11. Mr. Devesh Krishna, learned counsel appearing for the petitioner submits that foundational facts upon which the case was registered were incorrect which have been found by the enquiry committee set up under the order of the then Deputy Commissioner. They after inspection of the case did find that though the dead boulders were there but it had been segregated from the stack of the boulders which were used. At the same, time, it has also been found that the boulders, in fact, were brought from a place situated at 10 K.M. away from the work site and thereby any prosecution of the petitioner would amount to abuse of the process of the Court. 12. In this regard it was further submitted that the report of the, enquiry committee can very well be taken into account as the said report can be said to be an admitted document. The innocence of the petitioner gets reflected from the fact that the petitioner was exonerated in a departmental proceeding initiated on the same charges and in that event, entire criminal proceeding warrants to be quashed even in view of a decision rendered in a case of State (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685 , for the reason that the allegation upon which the case was lodged was not found factually correct by the enquiry committee. 13. Thus, it was submitted that the entire criminal proceeding including the order taking cognizance is fit to be quashed. 14. Thus, the main emphasis seems to have been laid upon the report of the enquiry committee submitted subsequent to lodgment of the case wherein allegation made in the FIR has not been found to be true but that enquiry report cannot be the basis for quashing of the criminal proceeding as the criminal proceeding is decided on the basis of materials collected during investigation. 15. Here in the instant case, according to the statement made in the counter-affidavit, the police during investigation did find the allegation to be true. 15. Here in the instant case, according to the statement made in the counter-affidavit, the police during investigation did find the allegation to be true. In that event, the submission made on behalf of the petitioner is not worth acceptable. 16. Criminal proceeding has further been sought to be quashed on the ground that the petitioner has been exonerated from the departmental proceeding but the exoneration of the departmental proceeding ipso facto would not lead to exoneration or acquittal in criminal trial which proposition has been laid down in a case of State (NCT of Delhi) v. Ajay Kumar Tyagi (supra) wherein their Lordships have observed that if the prosecution against the accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority of the hierarchy, the very foundation goes and the prosecution may be quashed: But that principle will not apply in the case of a departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. 17. Here in the instant case, as I have noted above that FIR was lodged when the then Minister of Law and Justice did find irregularities in the matter relating to construction of the road. However, subsequently, on setting up a committee, allegation was not found to be true but as I have stated above, that report will not have any bearing at this stage upon the case wherein police during investigation did find the allegation to be true. 18. Thus, exoneration of the petitioner in the departmental proceeding cannot be a ground for quashing of the order taking cognizance. 19. Accordingly, I do not find any merit in this case. Hence, this application stands dismissed. Application dismissed.