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Allahabad High Court · body

2016 DIGILAW 1580 (ALL)

Ram Chandra Sharma v. State Of U. P.

2016-04-27

RAMESH SINHA, VINOD KUMAR SRIVASTAVA III

body2016
JUDGMENT : Ramesh Sinha, J. 1. This application under section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of Special Trial No. 11 of 2014 arising out of Case Crime No. 11 of 2005, under sections 409, 420, 467, 468, 471, 120(B) IPC and Section 13(1)(d) of Prevention of Corruption Act, police station Dhanepur, district Gonda pending in the Court of Special Judge (Prevention of Corruption Act) Gorakhpur and the chage sheet dated 24.9.2007 as well as the order dated 24.4.2014. 2. Brief facts of the case are that the applicant was posted as Block Development Officer, Block Mujihana, district Gonda with an additional charge of Block Itiyathok, district Gonda. Upon the complaint of the then Minister of State for Irrigation, Government of U.P. dated 27.10.2004 with regard to some financial irregularity committed in implementation of 'Sampoorna Gramin Rojgar Yojna (S.G.R.Y.) in district Gonda during the period between 2001 to 2005, the matter was handed over to the Economic Offence Wing, U.P. Lucknow vide order of the competent authority dated 11.1.2005. Thereafter, on the basis of inspection conducted by a joint team on 20.1.2005, an FIR was lodged on 11.2.2005 by opposite party No. 2, Shri M.P. Gupta, Sub-Inspector, Economic Offence Wing against the applicant and other accused persons, which was registered as Case Crime No. 11 of 2005, under sections 409, 420, 467, 468, 471, 120-B IPC and Section 13(1)(d) of Prevention of Corruption Act, police station Dhanepur, district Gonda. The investigation was carried out and the Investigating Officer submitted a charge sheet against the applicant bearing No. 42-A on 24.9.2007, on which, the learned Magistrate took cognizance of the offence on 24.4.2014 and summoned the applicant for trial. 3. Aggrieved by the impugned charge sheet and cognizance order, the present application under section 482 Cr.P.C. has been filed by the applicant challenging the same. 4. Heard Shri Rajiv Mishra, learned Advocate holding brief of Shri Vrindavan Mishra, learned counsel for the applicant and Shri R.K. Maurya, learned Additional Government Advocate for the State. 5. It has been argued by the learned counsel for the applicant that the allegations contained against the applicant in the impugned FIR are completely vague and ambiguous and the impugned charge sheet, which has been submitted by the Investigating Officer discloses no offence against the applicant. 5. It has been argued by the learned counsel for the applicant that the allegations contained against the applicant in the impugned FIR are completely vague and ambiguous and the impugned charge sheet, which has been submitted by the Investigating Officer discloses no offence against the applicant. He further argued that a disciplinary proceedings were also initiated against the applicant by serving him a charge sheet dated 7.3.2007, on the same very allegation as has been mentioned in the FIR, for which the applicant submitted a comprehensive reply before the Inquiry Officer and thereafter the Inquiry Officer submitted his report before the disciplinary authority and after considering the entire facts and materials on record, the State Government decided to drop the disciplinary proceedings against the applicant vide order dated 13.8.2010. He also submitted that as the applicant has been exonerated in the disciplinary proceedings as far back as in the year, 2010, there appears to be no justification for his prosecution on the basis of the impugned charge sheet, hence, the impugned charge sheet as well as the cognizance order and the consequential proceedings against the applicant be quashed. Learned counsel in support of his argument has placed reliance upon a judgment of Hon'ble the Apex Court in the case of P.S. Rajya vs. State of Bihar reported in 1996 (9) SCC 1 and another judgment in the case of Lokesh Kumar Jain vs. State of Rajasthan reported in 2013 (11) SCC 130 . 6. Learned AGA on the other hand has opposed the prayer for quashing of the impugned charge sheet and submitted that the FIR, which has been lodged against the applicant was after due enquiry by the Economic Offence Wing and after investigation, the charge sheet has been submitted against the applicant, which discloses a cognizable offence against him and the learned Magistrate has rightly summoned him for trial by passing the summoning order dated 24.9.2007. 7. Learned AGA further that mere fact that 10 years have elapsed and the matter is still pending against the applicant cannot be the ground for quashing the proceedings in view of the decisions of the Apex Court rendered in cases of Sajjan Kumar vs. CBI, (2010) 9 SCC 368 , Noida Entrepreneurs Assn. 7. Learned AGA further that mere fact that 10 years have elapsed and the matter is still pending against the applicant cannot be the ground for quashing the proceedings in view of the decisions of the Apex Court rendered in cases of Sajjan Kumar vs. CBI, (2010) 9 SCC 368 , Noida Entrepreneurs Assn. vs. NOIDA (2011) 6 SCC 508 and Ranjan Dwivedi vs. CBI, (2012) 8 SCC 495 , in which the Hon'ble Apex Court has held that the proceedings where offences are serious cannot be quashed on the ground of mere delay. 8. Considering the submissions advanced by learned counsel for the parties, the contention of the learned counsel for the applicant that the applicant has also been served with a charge sheet in a disciplinary proceedings and in the said proceedings after it was found that there was no substance in the allegations levelled against the applicant in the charge sheet, which was filed against him in the disciplinary proceedings, the State Government has dropped the proceedings against him on 13.8.2010 exonerating him from the charges, therefore, the criminal proceedings based on the impugned charge sheet on the same allegations is liable to be quashed appears to have no substance. The impugned charge sheet and the materials collected during the course of investigation shows that the applicant being posted as Block Development Officer in district Gonda was having an additional charge of another Block Itiyathok, district Gonda, in which there were financial irregularities committed in the implementation of Sampoorna Gramin Vikas Yojna in the district Gonda between 2001 to 2005. The preliminary enquiry was also made by the Economic Offence Wing before lodging the FIR, which found that there was financial irregularities committed by the applicant as well as the co-accused persons. Hence, it directed that an FIR be lodged against the applicant and other co-accused persons, on which the same was lodged and the charge sheet has been submitted. The case law which has been cited by the learned counsel for the applicant of P.S. Rajya (Supra) is no longer a good law. Hence, it directed that an FIR be lodged against the applicant and other co-accused persons, on which the same was lodged and the charge sheet has been submitted. The case law which has been cited by the learned counsel for the applicant of P.S. Rajya (Supra) is no longer a good law. In view of the pronouncement of Hon'ble the Apex Court in the case of State (NCT of Delhi) vs. Ajay Kumar Tyagi reported in 2012 (9) SCC 685 , in which the Hon'ble Apex Court has held as under:- "In P.S. Rajya case the Supreme Court referred to its earlier decision in Bhajan Lal, 1992 Supp(91) SCC 335 and reproduced the illustrations laid down for exercise of extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 CrPC for quashing the criminal prosecution to prevent the abuse of the process of the court or otherwise to secure the ends of justice. These illustrations do not contemplate that on exoneration in the departmental proceedings, the criminal prosecution on the same charge or evidence is to be quashed. However, the Supreme Court in P.S. Rajya case quashed the prosecution on the peculiar facts of that case, finding that the said case can be brought under more than one head enumerated in the guidelines. The decision in P.S. Rajya case, therefore, does not lay down any preposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed. It is well settled that the decision is an authority for what it actually decides and not what flows from it. The mere fact that in P.S. Rajya case, the Supreme Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground. The prosecution was not terminated on the ground of exoneration in the departmental proceeding but, on its peculiar facts. (Paras 18 to 20). Therefore, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya case. In fact, there are precedents that eloquently speak a contrary view i.e. exoneration in departmental proceedings ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view is acceptable. (Paras 18 to 20). Therefore, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya case. In fact, there are precedents that eloquently speak a contrary view i.e. exoneration in departmental proceedings ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view is acceptable. The standard of proof in a department proceeding is lower than that of criminal prosecution. The departmental proceeding or for that mater criminal cases have to be decide only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence (Para 24). Therefore, exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. However, if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy. (Para 25)" 9. The other case law, which has been relied upon by the learned counsel for the applicant i.e. Lokesh Kumar Jain vs. State of Rajasthan (Supra) is distinguishable from the facts and circumstances of the present case and is also not applicable. 10. The other contention of the learned counsel for the applicant is that the matter has been pending for the last ten year and the applicant has already been exonerated in departmental proceedings also cannot be accepted in view of the judgment of Hon'ble the Apex Court in the case of Sajjan Kumar vs. CBI, reported in (2010) 9 SCC 368 , Noida Entrepreneurs Assn. Vs. Noida reported in (2011) 6 SCC 508 and Ranjan Dwivedi vs. CBI, reported in (2012) 8 SCC 495 . 11. Thus, in view of the foregoing discussions, we do not find any ground for quashing of the charge sheet and order taking cognizance and proceedings of the aforesaid case. Vs. Noida reported in (2011) 6 SCC 508 and Ranjan Dwivedi vs. CBI, reported in (2012) 8 SCC 495 . 11. Thus, in view of the foregoing discussions, we do not find any ground for quashing of the charge sheet and order taking cognizance and proceedings of the aforesaid case. Hence, the prayer for quashing the same is hereby refused. 12. The application lacks merit and is accordingly dismissed.