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2013 DIGILAW 552 (JHR)

Amreshwar Prasad v. State of Jharkhand

2013-04-25

H.C.MISHRA

body2013
JUDGMENT H.C. Mishra, J. Heard the learned senior counsel for the petitioner and the learned counsel for the State. 2. The petitioner is aggrieved by the order dated 1.9.2012 passed by the learned Sub Divisional Judicial Magistrate, Ranchi, in G.R Case No. 3287 of 2006, whereby, the application filed by the petitioner for discharge under Section 239 of the Cr.P.C., has been dismissed by the learned Court below, holding that after investigation, the police had submitted the charge-sheet and cognizance was taken against the petitioner for the offences under Sections 418, 420, 467, 468, 471 and 201 of the Indian Penal Code, in view of the allegation against the petitioner that without any approval from the Government, he had kept 13 persons in the college on daily wages basis and permitted them to continue till the regular appointments are made and also misappropriated the Government money to the tune of Rs.50,00,000/-(rupees fifty lakhs). It is stated in the impugned order that though the petitioner had filed certain documents with the petition, but those documents could not be taken into consideration at this stage, as the evaluation of the evidence could be done only after trial. The Court below accordingly, dismissed the application filed by the petitioner and the case was fixed for framing of charge. 3. The facts of the case lie in a short compass. Petitioner has been made accused in Doranda P.S. Case No. 248 of 2006, corresponding to G.R No.3287 of 2006 for the offences under Sections 419, 420, 467, 468 and 471 of the Indian Penal Code. The petitioner at the relevant time was posted as In-charge Principal of Government Homeopathic Hospital, Godda. Petitioner has been made accused in Doranda P.S. Case No. 248 of 2006, corresponding to G.R No.3287 of 2006 for the offences under Sections 419, 420, 467, 468 and 471 of the Indian Penal Code. The petitioner at the relevant time was posted as In-charge Principal of Government Homeopathic Hospital, Godda. The FIR was lodged on the basis of a letter dated 25.9.2006, addressed to the Officer In-charge, Doranda Police Station, by the Deputy Director, Health Indigenous Department, Government of Jharkhand, Ranchi, whereby, it was informed that the petitioner had made interpolations in the Department’s letter No. 32(1) dated 24.3.2005 which was issued by the Under Secretary, Health Department on the subject “Dinank 28.2.2004 ko Mahavidyalaya ke prachar avum udghatan karya par hone wale kharch ki sweekriti ke sambandh me” and he changed the subject of the said letter and showed approval of the two letters issued by him bearing letter No. 45 of 2004 dated 1.3.2004 and Letter No. 48 of 2004 dated 5.3.2004 by the Department’s said letter No. 32(1) dated 24.3.2005, which was actually issued on totally a different subject. It was further alleged that 13 persons were engaged on daily wages basis by the petitioner until the permanent appointment was made, and the petitioner had also committed defalcation of Rs.50,00,000/-of the Government fund and in order to cover of the same, the interpolations were made in the Department’s said letter dated 24.3.2005. It was also pointed out in the FIR that in the file movement register, it was shown at sl. No. 307 dated 10.3.2004 that the file related to this letter was handed over to the OSD, and at the relevant time, petitioner was working as OSD in the Department. The said file bearing No. 1/Misc./03/2004 was traceless from the Department, which showed that after issuance of the letter No.32(1) dated 24.3.2005 from the file, the file was made traceless by the petitioner. In the FIR it was also mentioned that the concerned routine clerk, Smt. Satya Gandhi had given in writing to the Joint Secretary of the Department that the Department’s letter No. 32(1) dated 24.3.2005 was issued by her and she had made it available to the petitioner, Dr. Amreshwar Prasad, hand to hand, which was on the subject “Dinank 28.2.2004 ko Mahavidyalaya ke prachar avum udghatan karya par hone wale kharch ki sweekriti ke sambandh me”. Amreshwar Prasad, hand to hand, which was on the subject “Dinank 28.2.2004 ko Mahavidyalaya ke prachar avum udghatan karya par hone wale kharch ki sweekriti ke sambandh me”. It was alleged that the petitioner had made irregular purchases and thereby, had committed the defalcation of Rs.50,00,000/-and had engaged 13 persons in the college on daily wages basis without the approval of the State Government. 4. On the basis of the said letter dated 25.9.2006, the FIR was lodged against the petitioner for the alleged offences under Sections 419, 420, 467, 468 and 471 of the Indian Penal Code. It also appears that after investigation, the police submitted the charge-sheet against the petitioner and cognizance was taken as aforesaid by the learned Chief Judicial Magistrate, Ranchi, and the case was sent to the Court of learned SDJM, Ranchi, for further proceedings, where the petitioner filed the application under Section 239 of the Cr.P.C., for discharge, which was rejected by the learned Court below by the impugned order. 5. It is submitted by the learned counsel for the petitioner that a departmental proceeding was initiated against the petitioner for the same very charges, which was initially conducted by one Sri B. Ansari, who submitted his report on 25.4.2007, exonerating the petitioner from all charges. The said report however, was not acted upon by the State Government and another enquiry was conducted by Sri B. K. Munda, Joint Secretary of the State Government, in the Department of Health, Medical Education and Family Welfare. In the said enquiry also, the petitioner was exonerated from all the charges and both these Enquiry Reports have been brought on record as Annexures 7 and 7/1 to this petition. It is submitted that the second Enquiry Report was accepted by the State Government and by the Notification of the State Government, in the Department of Health, Medical Education and Family Welfare, as contained in Memo No. 2/Departmental Proceeding-02/2006-222 (4) dated 24.3.2008, the petitioner was exonerated of all the charges. The notification exonerating the petitioner of the charges has been brought on record as Annexure 8 to this petition. 6. Learned counsel for the petitioner has further pointed out that according to the prosecution case, as also according to the case of the department, the relevant file No.1/Misc./03/2004 was handed over to the petitioner on 10.4.2004 itself. The notification exonerating the petitioner of the charges has been brought on record as Annexure 8 to this petition. 6. Learned counsel for the petitioner has further pointed out that according to the prosecution case, as also according to the case of the department, the relevant file No.1/Misc./03/2004 was handed over to the petitioner on 10.4.2004 itself. Though this handing over to the petitioner is denied by the petitioner, but it is submitted for the arguments sake that if the file was traceless from 10.3.2004 itself, in that case there could not have been any issuance of the letter No. 23(1) dated 24.3.2005 from the said file, and the routine clerk has admitted that she had issued the said letter dated 24.3.2005 and handed over the same to the petitioner hand to hand. Learned counsel accordingly, submitted that the file was very much available with the Department atleast till 24.3.2005 and it is falsely alleged that the same was handed over to the petitioner on 10.4.2004 itself and it was made traceless. It is submitted that taking these facts into consideration, the petitioner has been exonerated from the said charge in the departmental enquiry by both the enquiry officers and ultimately, the second Enquiry Report has been accepted by the State Government. It has also been submitted that in the departmental enquiry, one of the charges against the petitioner was also the interpolation in letter No. 32(1) dated 24.3.2005 and even the said charge could not be proved and the petitioner was exonerated of the said charge also. Learned counsel has further pointed out from the second Enquiry Report that even the charges relating to defalcation of Rs.50,00,000/-and the engagement of 13 persons on daily wages without the approval of the State Government were enquired departmentally against the petitioner and it was found that those persons had been continued in service even by the State Government until the permanent appointments are made, and the petitioner has been exonerated of the said charge also. Even the charge of defalcation of Rs.50,00,000/-was not proved, as it was found that during the relevant period, the petitioner was not the Drawing and Disbursing Officer and the Drawing and Disbursing Officer was someone else. Even the charge of defalcation of Rs.50,00,000/-was not proved, as it was found that during the relevant period, the petitioner was not the Drawing and Disbursing Officer and the Drawing and Disbursing Officer was someone else. The Enquiry Officer found the petitioner not guilty of all the charges and also found that the actions were taken against the petitioner by the concerned officials getting prejudiced against him, in order to deprive the petitioner of his claim for higher post. Learned counsel for the petitioner has accordingly, submitted that once the petitioner has been exonerated of all the charges on merits, the continuation of the criminal proceeding against the petitioner for the same charges is absolutely illegal and the same cannot be sustained in the eyes of law. 7. In support of his submission, learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court of India in Radheshyam Kejriwal Vs. State of West Bengal & Anr., reported in (2011) 3 SCC 581 , wherein taking into consideration the various earlier decisions of the Apex Court and the High Courts, the ratio has been laid down by the majority view as follows:- “38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously ; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution ; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. (v) Adjudication proceedings 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 proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings 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, the underlying principle being the higher standard of proof in criminal cases.” (Emphasis supplied). 8. Learned counsel for the petitioner has also placed reliance upon an unreported decision of this Court in the case of Giridhar Mandal Vs. State of Jharkhand, in Cr.M.P. No. 1150 of 2012 decided on 18.2.2013, wherein in the similar circumstances when the petitioner was exonerated of the charges in the departmental proceeding, the criminal proceeding against the said petitioner was quashed, in view of the law laid down by the Apex Court in P.S Rajya Vs. State of Bihar, reported in (1996) 9 SCC 1 . Further reliance has been placed by the learned counsel for the petitioner upon the decision of Patna High Court in Deepak Kumar Vs. State of Bihar, reported in 2010 (1) PLJR 715 , wherein also placing reliance upon P. S. Rajya's case (supra), the similar view has been taken by the Patna High Court. Placing reliance on these decisions, learned counsel for the petitioner has submitted that the continuance of the criminal proceeding against the petitioner is absolutely illegal and the same is fit to be quashed, as also the impugned order dated 1.9.2012 passed by the learned S.D.J.M., Ranchi, in G.R Case No. 3287 of 2006 is fit to be set aside, and it is a fit case, in which, the petitioner should be discharged. 9. Learned counsel for the State, on the other hand, has submitted that there is no illegality in the impugned order, inasmuch as, simply because of the fact that the petitioner has been exonerated in the departmental proceeding, the criminal proceeding against the petitioner cannot be quashed. It has been submitted that after investigation, the charge sheet has been submitted by the police against the petitioner and cognizance has also been taken. Learned counsel has accordingly, opposed the prayer. 10. After having heard the learned counsels for both the sides and upon going through the record, I find that the it was contended in the Court below that the petitioner had been exonerated from all the charges in the departmental proceeding, but the Court below has not taken into consideration the documents filed by the petitioner in support of his case, stating that those documents could not be taken into consideration at this stage and the evaluation of evidence could be done only in the stage of trial. I find that the documents relied upon by the petitioner which are Annexures-7 series and Annexure-8, are the unimpeachable documents and even in the counter affidavit filed by the State, these documents have not been denied. These are the Enquiry Reports and the Notification issued by the State Government, exonerating the petitioner of all the charges. I also find from the Enquiry Report that the petitioner has been exonerated from the charges on merits, holding that the charges were false and the Enquiry Officer has even gone to the extent of holding that the action initiated against the petitioner was prejudiced and was aimed to deprive the petitioner of his claim to the higher post. It is now well settled that these unimpeachable and admitted documents can be taken into consideration even at this stage for securing the ends of justice. [Authority : All Cargo Movers (India) Pvt. Ltd. & Ors. Vs. Dhanesh Badarmal Jain & Anr., (2007) 14 SCC 776 (Para 16)]. 11. In my considered view, the case of the petitioner is squarely covered by the decision of the Supreme Court of India in Radheshayam Kejriwal's case (supra). I have also gone through the case diary which is available on record. The case diary shows that there is practically no investigation by the police on the point of defalcation of the Government money by the petitioner, rather the I.O. had only searched the missing file in the State Secretariat and when he was informed that the file was traceless, the charge sheet was submitted against the petitioner. Consequently, the impugned order passed by the Court below cannot be sustained in the eyes of law, rather it is a fit case for exercise of inherent powers under Section 482 of the Cr.P.C., for securing the ends of justice. 12. In view of the aforementioned discussions, the impugned order dated 1.9.2012 passed by the learned S.D.J.M., Ranchi, in G.R Case No. 3287 of 2006, is hereby, set aside, and the entire criminal proceeding against the petitioner in Doranda P.S Case No. 248 of 2006, corresponding to G.R No. 3287 of 2006, presently pending in the Court of the S.D.J.M. Ranchi, is hereby, quashed. This application is, accordingly, allowed.