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2016 DIGILAW 1861 (GUJ)

Rajeshkumar D. Patel v. State of Gujarat

2016-09-01

PARESH UPADHYAY

body2016
ORDER : PARESH UPADHYAY, J. The applicant has moved this Court invoking Section 482 of the Code of Criminal Procedure for quashment of FIR being C.R - I No. 223 of 2012 registered with the Sector: 7 Police Station, Gandhinagar for the offences punishable under Sections 406, 465, 468, 471 and 114 of the Indian Penal Code and of the consequential proceedings being Criminal Case No. 1805 of 2013, which at present is claimed to be pending in the Court of the Chief Judicial Magistrate at Gandhinagar. 2. Mr. Barot, learned advocate for the applicant has submitted that, the applicant, at the relevant time (and even now), is working as the Assistant Director (Homeopathy) in the Directorate of the Indian Systems of Medicine and Homeopathy, Gujarat State. It is submitted that the reading of the complaint itself shows that no offence can be read against the applicant inasmuch as the applicant was not empowered to recommend, much less to decide what should be the recruitment criteria for the post of Deputy Director (Ayush), which is the basis for filing the complaint. It is submitted that further, the allegation is that the concerned file was lost from the drawer/chamber of the concerned Joint Secretary of the Health Department of the Government. It is submitted that the said office is situated at the Sardar Patel Bhavan, which is commonly known as the New Sachivalaya Complex while the applicant is an officer working in the Directorate, which is situated at Dr. Jivraj Mehta Bhavan, which is commonly known as Old Sachivalaya Complex. It is submitted that the applicant could not have barged in the chamber of the Joint Secretary of the Government and further, even the functioning of the department is also such that framing of recruitment rules is the prerogative of the Government, and mal-functioning therein could not have been attributed to the applicant. It is further submitted that the applicant was pp even tried, departmentally, where the standard of proof is preponderance of probability, and even now, qua the said departmental inquiry, after the petitioner was questioned last, he has not heard anything. Learned advocate for the applicant has further submitted that, the applicant is deprived of many service benefits because of initiation of the proceedings in question. Learned advocate for the applicant has further submitted that, the applicant is deprived of many service benefits because of initiation of the proceedings in question. It is submitted that the initiation of the proceedings in question, was malafide action on the part of the Authorities of the Secretariate to protect two senior officers, who are even referred to in the complaint itself, being the concerned Joint Secretary Mr. Rathod and the concerned Under Secretary Mr. Jadav. It is submitted that initiation and the pendency of the proceedings in question itself has substantially damaged the career of the complainant. It is submitted that this application be allowed. 3. On the other hand, Mr. Rindani, learned Additional Public Prosecutor has vehemently contested this application. He has drawn the attention of this Court to the recommendations of the Vigilance Commissioner to contest this application. Since there is no affidavit in reply of the State in the matter, learned Additional Public Prosecutor had requested that the State is ready to make available to the Court even the concerned file of the Government, on which the decision in question was taken. Learned Additional Public Prosecutor has made available to this Court a file of the General Administration Department and the Health Department to contest this application. It is noted that the original record is perused by the Court and the same is returned to the learned Addition Public Prosecutor and only the photo copies of the relevant pages of the said file of the Health Department being KHTP-1012-404-L(2) is taken on record. 4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 4.1 The alleged incident is of non-availability of some file of the Health Department of the Government of Gujarat, on which the question of framing the recruitment rules for the post of Deputy Director (Ayush) was being considered by the Government. The Health and Family Welfare Department is the Government in this case. The draft of the recruitment rules is not such a document that if it is lost, the same would result in some criminality. The file could have very well been reconstructed. The Health and Family Welfare Department is the Government in this case. The draft of the recruitment rules is not such a document that if it is lost, the same would result in some criminality. The file could have very well been reconstructed. Be that as it may, what is alleged is that, the draft submitted by the present applicant was illegally approved by the concerned Under Secretary, which was noted by the concerned Joint Secretary, and thereafter the said file is claimed to have been kept in the drawer of the Joint Secretary. So far the contents of the draft rules is concerned, the applicant could not have been attributed anything. So far non-availability of the file is concerned, it is lost from the Secretariate. Under either of the circumstances, the applicant could not have been concerned with this, much less any criminality could be attributed to him. The matter should rest by allowing this application on this ground. 4.2 However, the question is, then why this is done at all by the Authorities of the State Secretariate. The dates are relevant for this purpose. The alleged missing of file is of the year 2008. It was recorded in the said file itself, as reflected in the complaint in question, that the concerned Under Secretary could be held responsible for an inappropriate draft of the recruitment rules. His date of retirement was 30.06.2012 Thus he had four years to retire at that time. The arrangement on the part of the State machinery to protect the concerned Under Secretary was that, until he retires, no proceeding would be initiated. It is only after he retired, the FIR in question came to be filed. The name of the Under Secretary is also shown as an accused and he has not challenged the same. Even after these many years, nothing substantial is shown against the said accused. Learned Additional Public Prosecutor has not been able to dispute this position. It is noted that while hearing of this matter was going on, the representatives of the Health Department and the General Administration Department, both have remained present and the learned Additional Public Prosecutor has made his submissions after taking instructions from both the Departments. The conduct of the Authorities of the State Secretariate has been, as if naming the present applicant was the sole cause and the object to be achieved. The conduct of the Authorities of the State Secretariate has been, as if naming the present applicant was the sole cause and the object to be achieved. 4.3 There is one more glaring aspect of the matter. The Vigilance Commissioner as well as the Health Department both had recommended action against the concerned Joint Secretary also. The officer from the General Administration Department noted and recommended in substance to the effect that since the concerned Joint Secretary was otherwise a nice man and having good reputation, he be not tried. This was ultimately accepted This factor would additionally show that even the officer from whose custody the file went missing, was not to be questioned. It is this proceeding which is questioned before this Court by the Assistant Director contending that at least he be spared from this. 4.4 There is one more aspect which would further tilt the balance in favour of the applicant. The applicant was issued charge-sheet for departmental inquiry for this very incident, terming it to be misconduct. The Inquiry Officer, after following the procedure under Rule 9 and 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 has examined the matter in detail and even he has noted that, the charge against the present applicant (in departmental inquiry) is not proved. It is indicated that the Additional Chief Secretary (Personnel) of the General Administration Department is the competent authority to accept the finding of the Inquiry Officer. The said stage is also over long back. Thus that has attained finality. However no order is passed by the Government exonerating the applicant so far in that regard. Surprisingly, the subsequent note goes to show that, if that is done, it may have bearing qua Mr. Jadav (Under Secretary). This could, under no circumstances be treated to be a legally sustainable ground available to the disciplinary authority to record different finding than that of the Inquiry Officer. This Court is conscious that neither the departmental inquiry nor other dispute qua the service of the applicant, can be the subject matter of this application and therefore those questions are not gone into. However suffice it to hold that the initiation of the proceedings in question against the applicant was mala fide exercise of powers and therefore the same needs to be quashed and set aside. However suffice it to hold that the initiation of the proceedings in question against the applicant was mala fide exercise of powers and therefore the same needs to be quashed and set aside. 4.5 Though learned advocate for the applicant has submitted that, the applicant is deprived of many service benefits because of initiation of the proceedings in question, in exercise of powers under Section 482 of the Code of Criminal Procedure, no direction can be given to the Government in that regard and therefore it is for the applicant to take recourse to appropriate remedy for that purpose, in accordance with law. 5. For the reasons recorded above, the following order is passed. 5.1 This application is allowed. 5.2 The complaint being C.R - I No. 223 of 2012 registered with the Sector: 7 Police Station, Gandhinagar is quashed qua the present applicant. The consequential proceedings being Criminal Case No. 1805 of 2013 pending in the Court of the Chief Judicial Magistrate at Gandhinagar would not survive (qua the present applicant) and the same also stands quashed qua the present applicant. 5.3 Rule is made absolute. Direct service is permitted.