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2022 DIGILAW 1188 (AP)

K Siva nageswara rao v. State of Andhra Pradesh

2022-11-02

K.SREENIVASA REDDY

body2022
ORDER : The Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973, has been filed to quash the proceedings in Crime No.381 of 2020 of Nallapadu Police Station, Guntur district. 2. A case has been registered against the petitioner herein/A3 and others for the offences punishable under Section 409 read with 34 IPC and Section 9-B(1) of the Andhra Pradesh Minor Mineral Concession Rules, 1966. 3. Case of the prosecution, in brief, is that, on 15.03.2020, the de facto complainant visited Chowdavaram sand depot and, on verification of records, he found shortage of 16000 MTs of sand. It is alleged that with the help of petitioner/A3, who is a Police Constable and placed in Chowdavaram stock yard as security, the other accused illegally transported the sand and caused loss to the Government. 4. Heard. Perused the record. 5. Petitioner is a Police Constable, in respect of the said allegations, an enquiry was conducted against the petitioner herein by the Department. A perusal of the enquiry report, dated 14.08.2021, goes to show that the direct witnesses in the present complaint were examined as PWs.1 to 5 in the enquiry and they categorically stated that the petitioner herein is nothing to do with the illegal transportation of sand and collecting the amount of Rs.9,000/-from each lorry driver who loaded the sand illegally. PWs.6 to 8 are not the direct witnesses to the allegation against the charged officer. Since PWs.1 to 5 did not support the allegations as mentioned in the FIR in the present crime, the enquiry that was conducted as against the petitioner herein held to be not proved and the Deputy Superintendent of Police, CCS-I, Guntur, submitted the enquiry report to that effect. 6. In Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI, 2020 (9) SCC 636 , the Hon’ble Supreme Court held as follows. “7. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1 , the question before the Court was posed as follows:- “3. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1 , the question before the Court was posed as follows:- “3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission.” This Court then went on to state: “17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it.” This being the case, the Court then held: “23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.” In Radheshyam Kejriwal vs. State of West Bengal and Another, (2011) 3 SCC 581 , this Court held as follows:- “26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27) “… I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined.” xxx xxx xxx 29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution. xxx xxx xxx 31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case.” After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 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 8 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 the allegation is found to be not sustainable at all and the 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.” It finally concluded: “39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.” From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated. 8. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22.12.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code.” 7. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code.” 7. The crux of the above judgment goes to show that when once the charged officer has been exonerated in the enquiry conducted by the department, the crime which has been registered against him basing on the identical charges is not maintainable. 8. In P.S. Rajya v. State of Bihar, 1996 Law Suit (SC) 938, the Hon’ble Supreme Court, after considering all the earlier decisions, gave guidelines relating to the exercise of the extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 Cr.P.C., for quashing an FIR or a complaint. The Hon’ble Supreme Court observed as follows. “(20) At the risk of repetition, we may state that the charge had not been proved and on that basis the appellant was cleared of departmental enquiry. In this connection, we may also usefully cite a decision of this Court in State of Haryana and Others vs. Bhajan Lal and Others (1992 Supp.(1) SCC 335). This Court after considering almost all earlier decisions has given guidelines relating to the exercise of the extra ordinary power under Article 226 of the Constitution or the inherent powers under Section 482 of the Code of Criminal procedure for quashing an F.I.R. or a complaint. This Court observed as follows; "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prime facie constitute any offence or make out a case against the accused. (2) Where the allegation in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (21) The present case can be brought under more than one head given above without any difficulty. (22) The above discussion is sufficient to allow this appeal on the facts of this case. (23) Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27.3.1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.” 9. A perusal of the said judgment clearly goes to show that, when once the petitioner has been exonerated in the departmental enquiry, the proceedings as against the petitioner on the same charge would not conclude the criminal case as against the petitioner herein. 10. In view of the aforesaid facts and circumstances of the case, this Court is inclined to quash the proceedings in Crime No.381 of 2020 of Nallapadu Police Station, Guntur district, as the continuation of the proceedings as against the petitioner herein would amount to abuse of process of court. 11. 10. In view of the aforesaid facts and circumstances of the case, this Court is inclined to quash the proceedings in Crime No.381 of 2020 of Nallapadu Police Station, Guntur district, as the continuation of the proceedings as against the petitioner herein would amount to abuse of process of court. 11. The Criminal Petition is, accordingly, allowed and the proceedings in Crime No.381 of 2020 of Nallapadu Police Station, Guntur district, against the petitioner herein/A3 are quashed. 12. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.