1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27

TH

DAY OF JULY, 2021

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.19700/2018 (GM- RES)

BETWEEN

MR A.L.JAYARAMU

S/O. MR.L.LINGAIAH,

AGED ABOUT 60 YEARS,

NOW RESIDING AT NO.95,

II MAIN ROAD, MLA LAYOUT,

RT NAGAR, BENGALURU – 560 032,

FORMER ASSISTANT ADMINISTRATIVE OFFICER,

GOVERNMENT UNANI MEDICAL COLLEGE,

DR. SIDDAIAH PURANIK ROAD,

BASAVESHWAR NAGAR,

BENGALURU – 560 079.

... PETITIONER

(BY SRI SAMPATH KUMAR B.K., ADVOCATE (VIDEO

CONFERENCING))

AND

1. STATE OF KARNATAKA

REPRESENTED BY THE

KAMAKSHIPALYA POLICE STATION,

REPRESENTED BY THE S.P.P.,

HIGH COURT BUILDING,

AMBEDKAR VEEDHI,

BENGALURU – 560 001.

2. MRS. SHAKEELA BANU

W/O DR. S ZAIVUDDIN,

R

2

RESIDENCE NO. 19/A,

5

TH

CROSS,

KARNATAKA LAYOUT,

NEAR SHANKAR MUTT,

BENGALURU – 560 086.

OFFICE ADDRESS:

GOVERNMENT UNANI MEDICAL COLLEGE,

DR. SIDDAIAH PURANIK ROAD,

BASAVESHWAR NAGAR,

BENGALURU – 560 079.

3. THE SUPERINTENDENT OF POLICE

CRIMINAL INVESTIGATION DEPARTMENT (CID),

SPECIAL CELL AND ECONOMIC OFFENCES,

CARLTON HOUSE, PALACE ROAD,

BENGALURU - 560 001.

4. THE UNDER SECRETARY TO THE GOVERNMENT

INTERNAL ADMINISTRATION (LAW AND ORDER),

VIDHANA SOUDHA, AMBEDKAR VEEDHI,

BENGALURU - 560 001.

... RESPONDENTS

(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1, R3 & R4

(PHYSICAL HEARING );

R2 SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA, 1950 READ WITH SE CTION

482 OF CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE

IMPUGNED GOVERNMENT ORDER DATED 19.12.2015, PASSED BY

THE 4

TH

RESPONDENT VIDE ANNEXURE-C; QUASH THE

COMPLAINT DATED 26.10.2015 FILED BY THE 2

ND RESPONDENT

VIDE ANNEXURE-A AND THE FIR BEARING CRIM NO. 659/20 15

(CRIME NO.21601/2015) DATED 28.10.2015 VIDE ANNEXUR E-B,

REGISTERED BY THE 1

ST

RESPONDENT, PENDING BEFORE THE IV

ADDITIONAL METROPOLITAN MAGISTRATE, BANGALORE CITY AND

ETC.,

3

THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

The petitioner before this Court is seeking quashing of

complaint dated 26-10-2015 and the resultant FIR in Crime

No.659 of 2015 dated 28-10-2015.

2. Sans details, facts germane for consideration of the lis,

are as follows:-

The petitioner was an employee of the Government of

Karnataka and at the relevant point in time was working as an

Assistant Administrative Officer, District Ayush Office, Bellary.

The 2

nd respondent registers a complaint on 26-10-2015 alleging

that the petitioner along with four others had indulged in certain

irregularities in the admissions given to students belonging to

different States for the first year bachelor degree in Unani

Medical Sciences and further alleged that the petitioner had

indulged in creation of documents for eligibility of those students

for professional courses notwithstanding the fact that those

students did not have any eligibility to enter prof essional

4

courses. The said complaint resulted in registration of a FIR

against the petitioner in Crime No.659 of 2015 for offences

punishable under Section 34, 408, 420, 465, 468 and 471 of the

Indian Penal Code. The Government by an order dated 19-12-

2015 referred the matter to the 3

rd respondent/Criminal

Investigation Department (‘CID’ for short) for investigation and

report.

3. During the pendency of the aforesaid criminal

proceedings, the 1

st respondent/Government decided to initiate

a departmental enquiry against the petitioner and in furtherance

of the said decision, issued a charge sheet and later, a retired

District Judge was appointed as the Inquiry Officer in terms of

Government Order dated 18-07-2016. The Inquiry Off icer after

holding an elaborate enquiry held the petitioner and others not

guilty of the allegations. The petitioner, in particular, was held

not guilty of all the 21 allegations that were levelled against him

in terms of the charge sheet issued under Rule 11 o f the

5

Karnataka Civil Services (Classification, Control and Appeal)

Rules, 1957.

4. Pursuant to the report of the Inquiry Officer dated 20-

02-2017, holding the petitioner not guilty of the allegations, the

Disciplinary Authority in terms of an order dated 12-07-2017

accepted the findings of the Inquiry Officer and exonerated the

petitioner of all the allegations. A further communication is also

directed to be made to the CID to drop the investigation against

the petitioner and four others in the light of the departmental

inquiry being held in favour of those employees. It is at that

stage, the petitioner has knocked the doors of this Court in the

present writ petition invoking inherent jurisdiction of this Court

under Section 482 of the Code of Criminal Procedure 1973.

This Court by its order dated 29.05.2018 directed stay of all

further proceedings in Crime No.659 of 2015.

5. Heard Sri B.K.Sampath Kumar, learned counsel

appearing for the petitioner and Smt.Namitha Mahesh B.G.,

6

learned High Court Government Pleader appearing for

respondent Nos.1, 3 and 4.

6. The learned counsel appearing for the petitione r

submits that criminal proceedings should not have b een

permitted to proceed further in the light of exoneration of the

petitioner in the departmental inquiry and an order being passed

by the competent authority for withdrawal of investi gation

conducted by the CID in furtherance of registration of criminal

case. He would also submit that, if the criminal proceedings

were to be proceeded with, it would be an exercise in futility and

agonizing to the petitioner who is now retired on attaining the

age of superannuation.

7. On the other hand, the learned High Court Government

Pleader in support of continuance of prosecution would submit

that merely because the petitioner gets exonerated in a

departmental inquiry, the same would not ipso facto mean that

criminal proceedings against the petitioner should not be

continued. She would submit that subsequent to the letter of

7

the Government seeking withdrawal of criminal proceed ings, a

communication is made by the Department of Home Aff airs to

the Advocate General stating that once an interim order gets

vacated, the criminal proceedings will have to be continued and

taken to its logical end and therefore would submit that, there is

no warrant for interference at this stage.

8. I have given my anxious consideration to the ri val

submissions made by the respective learned counsel and have

perused the material on record.

9. Certain undisputed facts are that, the complain ant

lodges a complaint before the 1

st respondent/Police which

results in FIR being registered against the petitioner in Crime

No.659 of 2015 for offences indicated supra. The petitioner is

accused No.3 along with others in the said criminal case, which

is pending investigation at the hands of the CID. During the

pendency of these proceedings, the competent authority in the

Government decides to initiate departmental inquiry against the

petitioner and others and charge sheet was issued on

8

20-01-2016. In terms of the decision of the competent authority,

a Government order was issued on 18-07-2016, appoint ing a

retired District Judge to hold the inquiry against the petitioner

and others and submit his report. The charge sheet was issued

in terms of Rule 11 of the Karnataka Civil Services

(Classification, Control and Appeal) Rules, in which 21

allegations were levelled against the petitioner, all of which

spring from the same incident and facts that had resulted in

registration of FIR against the petitioner and enqui ry

proceedings were conducted by the said District Judg e.

Elaborate evidence was let in by the Government befo re the

Inquiry Officer. The Inquiry Officer by his report dated

20-02-2017, held the petitioner and others not guilty of the

allegations.

10. Insofar as it concerns the petitioner, the finding of the

Inquiry Officer is as follows:

“J¯Áè 21 DgÉÆÃ¥ÀUÀ¼ÀÄ ¸ÀPÁðj AiÀÄÄ£Á¤ ªÉÊzÀåQÃAiÀÄ

ªÀĺÁ«zÁå®AiÀÄzÀ ¨sÉÆÃzÀ£Á «µÀAiÀÄUÀ¼ÀÄ ºÁUÀÄ DqÀ½vÁvÀäPÀ ªÀÄvÀÄÛ ¯ÉPÀÌ¥ÀvÀæ

¤ªÀðºÀuÉUÉ ¸ÀA§A¢ü¹ªÉ. 2 jAzÀ 4£Éà D¥Á¢vÀgÀÄ ±ÉÊPÀëtÂPÀ ºÁUÀÆ

9

¨sÉÆÃzsÀ£Á «µÀAiÀÄUÀ¼À£ÀÄß ¤ªÀð»¸ÀĪÀÅ¢®è. ºÁdgÁw ªÀÄvÀÄÛ DAvÀjPÀ

¥ÀjÃPÉëUÀ¼À£ÀÄß ¨sÉÆÃzÀPÀgÀÄ ¤ªÀð»¸ÀÄvÀÄÛzÀÄÝ, 1 ªÀÄvÀÄÛ 2£Éà D¥Á¢vÀgÀ ¨ÉzÀjPÉUÉ

ªÀÄtÂzÀÄ, ºÁdgÁUÀzÀ «zÁåyðUÀ½UÉ CAPÀUÀ¼À£ÀÄß ¤ÃrgÀĪÀ «µÀAiÀÄ vÀªÀÄä

UÀªÀÄ£ÀPÉÌ §AzÀ vÀPÀët, ªÉÄïÁ¢üPÁjUÀ½UÉ ªÀgÀ¢ ªÀiÁqÀĪÀÅzÀÄ ºÁUÀÆ F

CPÀæªÀÄUÀ¼À£ÀÄß vÀqÉAiÀÄ®Ä ¥ÀæAiÀÄw߸ÀĪÀÅzÀÄ ¨sÉÆÃzÀ£Á ªÀUÀðzÀªÀgÀ PÀvÀðªÀåªÁVzÉ.

¯ÉPÀÌ¥ÀvÀæ ¤ªÀðºÀuÉUÉ ¸ÀA§A¢ü¹zÀAvÉ, ¥ÀæwªÀµÀð ¯ÉPÀÌvÀ¥Á¸ÀuÉ ªÀiÁr, £ÀÆå£ÀvÉUÀ¼À

§UÉÎ PÀæªÀĪÀ»¸À¨ÉÃPÁVzÉ. 2007- 08£Éà ¸Á°¤AzÀ 2013- 14£Éà ¸Á°£ÀªÀgÉUÉ

DAiÀiÁ ªÀµÀðUÀ¼À°è ªÀĺÁ¯ÉÃR¥Á®jAzÀ DzÀ ¯ÉPÀÌvÀ¥À¸ÀuÁ ªÀgÀ¢AiÀÄ£ÀÄß

«ZÁgÀuÁ ªÉüÉAiÀÄ°è ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è. ªÀĺÁ¯ÉÃR¥Á®jAzÀ DzÀ

¯ÉPÀÌvÀ¥Á¸ÀuÁ ªÀgÀ¢AiÀÄ°è F «ZÁgÀuÉAiÀÄ°è ªÀiÁrgÀĪÀ DgÉÆÃ¥ÀUÀ¼ÀÄ

EgÀĪÀÅ¢®è JAzÀÄ ¸ÁQëzÁgÀgÀÄ M¦àgÀÄvÁÛgÉ DqÀ½vÁvÀäPÀ «µÀAiÀÄUÀ¼À£ÀÄß

DVAzÁUÉÎ ¸Àj¥Àr¹PÉƼÀî®Ä PÀæªÀĪÀ»¹, ¸Àj¥Àr¸À¨ÉÃPÁVzÉ.

J¯Áè 4 C¥Á¢vÀgÀÄUÀ¼À «gÀÄzÀÞ ªÀiÁrgÀĪÀ DgÉÆÃ¥ÀUÀ¼ÀÄ vÀ¤SÁ

ªÀgÀ¢AiÀÄ DzsÁjvÀªÁVzÀÄÝ, vÀ¤SÁ ªÉüÉAiÀÄ°è ¨sÉÆÃzsÀPÀgÀÄ ¤ÃrgÀĪÀ ºÉýUÀ¼À£ÀÄß

DzsÀj¸À¯ÁVzÉ. DzÀgÉ, ¨sÉÆÃzÀPÀgÀÄ «ZÁgÀuÉAiÀÄ°è ¸ÁQë £ÀÄrAiÀÄĪÁUÀ,

DgÉÆÃ¥ÀUÀ¼À §UÉÎ ¸ÁQë £ÀÄr¢gÀĪÀÅ¢®è.

J¯Áè CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀt¹, 1, 3 ªÀÄvÀÄÛ 4£Éà D¥Á¢vÀgÀ «gÀÄzÀÞ

ªÀiÁrgÀĪÀ 20 DgÉÆÃ¥ÀUÀ¼ÀÄ ºÁUÀÆ 2£Éà D¥Á¢vÀgÀ «gÀÄzÀÞ ªÀiÁrgÀĪÀ 21

DgÉÆÃ¥ÀUÀ¼ÀÄ ¸Á©ÃvÁV®èªÉAzÀÄ ¤tð¬Ä¸À¯ÁVzÉ.”

(emphasis added)

On receipt of the report from the hands of the Inqu iry

Officer, the competent authority decided to accept the report of

the Inquiry Officer as there was no evidence against the

10

petitioner and closed the proceedings. The order o f the

competent authority reads as follows:

“¸ÀPÁðj DzÉñÀ ¸ÀASÉå:DPÀÄPÀ 297 ¦nr 2014, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ

11/12.07.2017

¥Àæ¸ÁÛ£ÉAiÀÄ°è «ªÀj¹zÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è, 2013-14£Éà ±ÉÊPÀëtÂPÀ

¸Á°£À°è ¨ÉAUÀ¼ÀÆj£À ¸ÀPÁðj AiÀÄÄ£Á¤ ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄzÀ°è

©.AiÀÄÄ.JA.J¸ï.£À PÉ®ªÀÅ «zÁåyðUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ, zÁR¯ÉUÀ¼À£ÀÄß

CPÀæªÀĪÁV w¢Ý CªÀgÀÄ ¥ÀjÃPÉëUÉ ºÁdgÁUÀ®Ä CªÀPÁ±À ªÀiÁrPÉÆnÖgÀĪÀÅzÀÄ,

£ÀPÀ° zÁR¯ÉUÀ¼À£ÀÄß ¸Àȶֹ £Á®Æ̪ÀgÉ ªÀµÀðUÀ¼À°è ¥ÀÆgÉʸÀ¨ÉÃPÁzÀ

©.AiÀÄÄ.JA.J¸ï. ¥ÀzÀ«AiÀÄ£ÀÄß 3 ªÀµÀðUÀ¼À°èAiÉÄà ¥ÀÆtðUÉƽ¸À®Ä CªÀPÁ±À

ªÀiÁrPÉÆnÖgÀĪÀ ¥ÀjÃPÁë CPÀæªÀÄUÀ½UÉ PÁgÀtgÁVzÀÝgÉ£À߯ÁzÀ F PɼÀPÀAqÀ

D¥Á¢vÀgÀ «gÀÄzÀÞzÀ DgÉÆÃ¥ÀUÀ¼ÀÄ E¯ÁSÁ «ZÁgÀuÉAiÀÄ°è

¸Á©ÃvÁV®è¢gÀĪÀÅzÀjAzÀ ¸ÀzÀjAiÀĪÀgÀ «gÀÄzÀÞzÀ DgÉÆÃ¥ÀUÀ¼À£ÀÄß PÉÊ©lÄÖ

zÉÆõÀªÀÄÄPÀÛUÉƽ¹ DzÉùzÉ.

1.

qÁ.ºÀ¹Ã§Ä¤ß¸Á, ¤ªÀÈvÀÛ dAn ¤zÉÃð±ÀPÀgÀÄ (ªÉÊzÀåQÃAiÀÄ ²PÀët),

DAiÀÄÄµï ¤zÉÃð±À£Á®AiÀÄ, »A¢£À ¥ÁæZÁAiÀÄðgÀÄ, ¸ÀPÁðj AiÀÄÄ£Á¤

ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ.

2.

²æà J.J¯ï.dAiÀÄgÁªÀiï, ¸ÀºÁAiÀÄPÀ DqÀ½vÁ¢üPÁj, ¸ÀPÁðj AiÀÄÄ£Á¤

ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄ, ¥Àæ¸ÀÄÛvÀ f¯Áè DAiÀÄĵï C¢üPÁjUÀ¼À

PÀZÉÃj, §¼Áîj.

3.

²æêÀÄw n.J.«ÄãÁQë, ¢éwÃAiÀÄ zÀeÉð ¸ÀºÁAiÀÄQ, ¸ÀPÁðj AiÀÄÄ£Á¤

ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄ, ¥Àæ¸ÀÄÛvÀ f¯Áè DAiÀÄĵï C¢üPÁjUÀ¼À

PÀZÉÃj, avÀðzÀÄUÀð.

4. ²æêÀÄw «.£ÀgÀ¸ÀªÀÄä, ¨ÉgÀ¼ÀZÀÄÑUÁgÀgÀÄ, »A¢£À ¸ÀPÁðj AiÀÄÄ£Á¤

11

ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ ¥Àæ¸ÀÄÛvÀ f¯Áè DAiÀÄĵï

C¢üPÁj ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ªÀÄvÀÄÛ UÁæ«ÄÃt, ¨ÉAUÀ¼ÀÆgÀÄ.

ªÀÄÄAzÀĪÀgÉzÀÄ F ¥ÀæPÀgÀtzÀ°è CªÀiÁ£ÀvÀÄÛUÉÆAqÀ D¥Á¢vÀ C¢üPÁj /

£ËPÀgÀgÀÄUÀ¼À CªÀiÁ£ÀwÛ£À CªÀzsÀAiÀÄ£ÀÄß PÀvÀðªÀå CªÀ¢ü JAzÀÄ

¤AiÀĪÀiÁ£ÀĸÁgÀ ¥Àj²Ã°¹, DAiÀÄÄµï ¤zÉÃð±ÀPÀgÀÄ DzÉñÀ

ºÉÆgÀr¸ÀvÀPÀÌzÀÄÝ.”

(emphasis added)

After accepting the report of the Inquiry Officer and closing the

proceedings, a communication was also sent on 11-07-2017 by

the Government to withdraw the investigation that was directed

in Crime No.659 of 2015. The communication reads as follows:

“EzÉà DgÉÆÃ¥ÀUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ, ¸ÀªÀiÁ£ÁAvÀgÀ E¯ÁSÁ

«ZÁgÀuÉAiÀÄ£ÀÄß 04-D¥Á¢vÀ C¢üPÁj / £ËPÀgÀgÀ «gÀÄzÀÞ PÀ£ÁðlPÀ £ÁUÀjÃPÀ

¸ÉêÁ (¹¹J) ¤AiÀĪÀiÁªÀ½ 1957gÀ ¤AiÀĪÀÄ 11 ªÀÄvÀÄÛ ¤ªÀÈwÛ ºÉÆA¢zÀ

DgÉÆævÀgÀ «gÀÄzÀÞ PÀ.£Á.¸Éà ¤AiÀĪÀiÁªÀ½ 1958gÀ ¤AiÀĪÀÄ 214(1)(J) gÀr

E¯ÁSÁ «ZÁgÀuÉAiÀÄ£ÀÄß ¤AiÀĪÀiÁ£ÀĸÁgÀ ¥ÁægÀA©ü¹zÀÄÝ, «ZÁgÀuÁ¢üPÁjUÀ¼ÀÄ

¤ÃrgÀĪÀ CAwªÀÄ E¯ÁSÁ «ZÁgÀuÁ ªÀgÀ¢AiÀÄ°è D¥Á¢vÀgÀ «gÀÄzÀÞ J¯Áè

DgÉÆÃ¥ÀUÀ¼ÀÄ ¸Á©ÃvÁV®èªÉAzÀÄ zÀÈqsÀ¥Àr¹zÀ »£É߯ÉAiÀÄ°è «ZÁgÀuÁ¢üPÁjUÀ¼À

«ZÁgÀuÁ ªÀgÀ¢AiÀÄ£ÀÄß ¸ÀPÁðgÀªÀÅ CAVÃPÀj¹, D¥Á¢vÀgÀ «gÀÄzÀÞzÀ

DgÉÆÃ¥ÀUÀ¼À£ÀÄß PÉÊ©lÄÖ zÉÆõÀªÀÄÄPÀÛgÀ£ÁßV¹ ºÉÆgÀr¹zÀ ¸ÀPÁðj DzÉñÀ

¸ÀASÉå:DPÀÄPÀ/297/¦nr/2014, ¢£ÁAPÀ:11.07.2017gÀ ¥ÀæwAiÀÄ£ÀÄß EzÀgÉÆA¢UÉ

®UÀwÛ¹zÉ.

12

DzÀÝjAzÀ, M¼ÁqÀ½vÀ E¯ÁSÉAiÀÄÄ ¥ÀæPÀgÀtªÀ£ÀÄß ¹.L.r.UÉ ªÀ»¸À®Ä

ºÉÆgÀr¹gÀĪÀ ¸ÀPÁðj DzÉñÀ ¸ÀASÉå:ME/200/¹Lr/2015,

¢£ÁAPÀ:19.12.2015gÀ DzÉñÀzÀAvÉ ¹Lr AiÀÄ vÀ¤SÉUÁV ªÀ»¹gÀĪÀ ¥ÀæPÀgÀtªÀ£ÀÄß

PÉÊ©qÀĪÀAvÉ ºÁUÀÆ PÁªÀiÁQë ¥Á¼Àå ¥Éưøï oÁuÉ, C¥ÀgÁzsÀ

¸ÀASÉå:0659/15£ÀÄß vÀ¤SɬÄAzÀ »A¥ÀqÉAiÀÄĪÀAvÉAiÀÄÆ ¸ÀºÀ PÉÆÃgÀ¯ÁVzÉ.”

(emphasis added)

This is followed up by another unofficial note to cl ose the

proceedings even before the criminal Court, which r eads as

follows:

“ ªÉÄîÌAqÀ «µÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃTvÀ n¥ÀàtÂAiÀÄ°è PÉÆÃgÀ¯ÁVgÀĪÀAvÉ

¸ÀzÀj ¥ÀæPÀgÀtzÀ PÀÄjvÀÄ ¹Lr vÀ¤SÉAiÀÄ£ÀÄß PÉÊ©qÀĪÀ §UÉÎ ªÀiÁ£Àå DgÉÆÃUÀå

ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt ¸ÀaªÀgÀ n¥ÀàtÂAiÀÄ GzÀÈvÀ ¨sÁUÀ F PɼÀPÀÀAqÀAwzÉ.

“¢£ÁAPÀ:17.09.2014gÀAzÀÄ 2013-14 ªÀÄvÀÄÛ 2014-15£Éà ¸Á°£À°è

¸ÀPÁðj AiÀÄÄ£Á¤ ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ E°è £ÉqÀ¢zÉ

J£À߯ÁzÀ CPÀæªÀÄUÀ¼À §UÉÎ ¥ÁæZÁAiÀÄðgÀÄ, ¸ÀPÁðj AiÀÄÄ£Á¤ ªÉÊzÀåQÃAiÀÄ

ªÀĺÁ«zÁå®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀÄ ªÀgÀ¢ ¤ÃrgÀĪÀ »£É߯ÉAiÀÄ°è,

¤zÉÃð±ÀPÀgÀÄ, DAiÀÄĵï E¯ÁSÉ gÀªÀgÀÄ CPÀæªÀĪÁV ¨sÁVAiÀiÁVgÀĪÀ F

PɼÀPÀAqÀªÀgÀ£ÀÄß CªÀiÁ£ÀvÀÄÛUÉƽ¹ dAn E¯ÁSÁ «ZÁgÀuÉ dgÀÄV¸ÀĪÀAvÉ

¢£ÁAPÀ: 12.03.2015gÀAzÀÄ ¸ÀÆa¹gÀÄvÁÛgÉ.

1.

qÁ||ºÀ¹§Ä¤ßøÁ, »A¢£À ¥ÁæZÁAiÀÄðgÀÄ, ¸ÀPÁðj AiÀÄÄ£Á¤

ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ (¥Àæ¸ÀÄÛvÀ ªÀAiÉÆäªÀÈwÛ).

2.

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14

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(ªÀiÁ£Àå DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt ¸ÀaªÀgÀÄ).”

(emphasis added)

Thus, all these decisions were taken pursuant to exoneration of

the petitioner in the inquiry. On the strength of the aforesaid

communication and the findings of the Inquiry Offic er, the

petitioner has knocked the doors of this Court in t his writ

petition.

11. The issue that falls for my consideration is, whether

the proceedings before the criminal Court in Crime No.659

of 2015 should be permitted to continue in the ligh t of

exoneration of the petitioner in the departmental enquiry?

12. The allegations levelled in the criminal case, no doubt,

are for offences under the IPC. The facts and the incident

15

resulted in two proceedings – one by registration of FIR and the

other by issuance of charge sheet in the departmental side. In

the enquiry proceedings, the findings are dependent upon

probabilities being preponderant, the Government fa iling to

prove any of the allegations against the petitioner even on

probabilities and the Disciplinary Authority accepting the said

report and exonerating the petitioner. The chances of the

Government proving the allegations for the offences under

criminal law, where the guilt has to be proved beyo nd all

reasonable doubt, is bleak. Since chances are blea k for the

reasons indicated hereinabove, it would be improper to permit

the criminal trial to proceed any further.

13. This view of mine in this regard, is fortified by the

judgment of the Apex Court in the case of P.S. RAJYA v. STATE

OF BIHAR

1, wherein the Apex Court has held as follows:

“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

1

(1996) 9 SCC 1

16

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. On these

premises, if we proceed further then there is no

difficulty in accepting the case of the appellant. For if

the charge which is identical could not be

established in a departmental proceedings and in

view of the admitted discrepancies in the reports

submitted by the valuers one wonders what is there

further to proceed against the appellant in criminal

proceedings. In this context, we can usefully extract

certain relevant portions from the report of the

Central Vigilance Commission on this aspect.

“Neither the prosecution nor the

defence has produced the author of

various reports to confirm the

valuation. The documents cited in the

list of documents is a report signed by

two engineers namely S/Shri S.N. Jha

and D.N. Mukherjee whereas the

document brought on record (Ex. S-20)

has been signed by three engineers.

There is also difference in the

estimated value of the property in the

statement of imputation and the

report. The document at Ex. S-20 has

been signed by three engineers and

the property has been valued at Rs

4,85,000 for the ground floor and Rs

2,55,600 for the second floor. A total of

this comes to Rs 7,40,900 which is

totally different from the figure of Rs

7,69,800 indicated in the statement of

17

imputation. None of the engineers who

prepared the valuation report though

cited as prosecution witnesses

appeared during the course of enquiry.

This supports the defence argument

that the authenticity of this document

is in serious doubts. It is a fact that

the income tax authorities got this

property evaluated by S/Shri S.N. Jha

and Vasudev and as per this report at

pp. 50 to 63 they estimated the

property at Rs 4,57,600 including the

cost of land Rs 1,82,000 for ground

and mezzanine floor plus Rs 2,55,600

for first floor and Rs 20,000 for cost of

land. Thus both the engineers who

prepared the valuation report for

income tax purposes also prepared the

report for the CBI and there is no

indication in the subsequent report as

to why there is a difference in the

value of the property. A perusal of

these two reports reveals that there is

difference in the specification of the

work. The valuation report prepared

by Shri S.N. Jha for ground floor for

income tax purposes clearly states

that the structure was having “RCC

pillars at places, brickwork in cement

mortar, RCC lintel, 60 cm walls, 9 inch

floor height, 17.6, 8.00, 8.00 inch” but

in the report for CBI which was also

prepared by him the description is

“RCC framed structure open verandah

on three sides in the ground floor”.

Similarly, for the first floor it is written

in the report as “partly framed

18

structure and partly load being walls,

floor heights 3.20 mm. Further Shri

S.N. Jha on p. 54 of Ex. D-1 had

adopted a rate of Rs 290 per sq. mtr.

for ground floor and adding for extra

height he had estimated ground floor

including mezzanine floor at Rs

2,02,600. But for the report at Ex. S-20

the rate has been raised to 365 per sq.

mtr. There is no explanation for this

increase of rate by Rs 75 per mtr. It is

also observed that for the updating of

the cost of index 5% was added to the

rate of Rs 290 as per p. 55 of Ex. D-1

by Shri S.N. Jha but this has been

raised to 97% as an escalation to the

cost of index in Ex. S-20 without

explaining or giving the reasons

therefor. It is surprising that same set

of engineers have adopted different

standard for evaluating the same

property at different occasions.

Obviously, either of the report is false

and it was for the prosecution to

suitably explain it. In the absence of it

the only inference to be drawn is that

report at Ex. S-20 is not authentic.

Since the same set of engineers have

done the evaluation earlier and if

subsequently they felt that there was

some error in the earlier report, they

should have explained detailed

reasons either in the report itself or

during the course of enquiry.

Therefore, Ex. S-20 is not reliable.”

… … … …

19

20. Moreover a perusal of Ex. S-20 reveals that

Shri Vasudev, Executive Engineer has recorded a

note as follows:

“‘Hence the valuation of Shri

S.N.Jha was never superseded by any

other estimates. As is confirmed from

the records, his estimated figures were

only accounted for by the ITO Bokaro.”

Thus according to Shri Vasudev, who was the

seniormost among the three CPWD engineers who

prepared Ex. S-20, the valuation of ground floor

remains at Rs 1,82,600 plus Rs 20,000 for the cost

of land. The first floor as per Ex. S-20 was estimated

at Rs 2,55,600 and a total of all this comes to Rs

4,57,600 which is very near to the declaration of

actuals to the income tax authority and also the

estimated cost by the Bokaro Steel Township

Engineer and the government approved valuer.

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 v. Bhajan Lal [1992 Supp

(1) SCC 335: 1992 SCC (Cri) 426]. This Court

after considering almost all earlier decisions

has given guidelines relating to the exercise of

the extraordinary power under Article 226 of

the Constitution or the inherent powers under

Section 482 of the Code of Criminal Procedure

for quashing an FIR or a complaint. This Court

observed as follows: (SCC pp. 378-79, paras 102-3)

20

“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 channelised 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 prima

facie constitute any offence or make out a

case against the accused.

(2) Where the allegations 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

21

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 police

officer without an order of 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 Act concerned (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 Act

concerned, 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.

21. It is clear from the above discussions that

though the document cited in Annexure III is a joint

report of two engineers what has been brought on

record is a document signed by three engineers, the

22

same set of engineers who evaluated the property for

income tax purposes, and there is a vast difference

in the specifications and the rates adopted for

calculating the cost in Ex. S-20 have been increased

without any explanation and none of these engineers

were produced during the course of enquiry to clarify

the position. Hence the authenticity of Ex. S-20 is

doubtful as claimed by the defence.

22. It needs to be mentioned that the report at

Ex. S-20 has evaluated the ground floor at Rs

4,85,300 and a note to the effect that 10% should be

allowed for self-supervision and procurement of

material has also been recorded at the end. On this

basis the net value of ground floor comes to Rs

4,36,810 (Rs 4,85,344-Rs 48,534). The first floor has

been evaluated at Rs 2,55,600 after allowing the

allowance for self-supervision and a total of both

items would come to Rs 6,62,410. Thus, even the

report at Ex. S-20 does not support the prosecution

case that as per the report of CPWD Engineers the

property is valued at Rs 7,69,800. As the property

assessed by the income tax authority for Rs 4.67

lakhs and even the valuation given by the Bokaro

Steel Township Engineer and the government-

approved valuer are very near to this figure, the

reasonable value of this property could only be taken

as 4.75 lakhs assessed by the Bokaro Township

Engineer on detailed estimate basis.”

(emphasis supplied)

Later, the Apex Court though not referring to P.S.RAJYA

held in identical lines in the case of Radheshyam

23

Kejriwal v. State of W.B

2, that standard of proof in a criminal

case is much higher than that of adjudication in a departmental

enquiry. If in a departmental inquiry, the competent authorities

have failed to drive home the charge, it would be improper to

permit criminal trial any further. This view of the Apex Court in

the aforesaid case is reiterated in the later three Judge Bench in

the case of Ashoo Surendranath Tewari v. CBI

3, wherein the

Apex Court has held as follows:

“8. 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 v. State of Bihar [P.S.

Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC

(Cri) 897] , the question before the Court was posed as

follows: (SCC pp. 2-3, para 3)

“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

2

(2011) 3 SCC 581

3

(2020) 9SCC 636

24

the light of a report submitted by the Central

Vigilance Commission and concurred by the

Union Public Service Commission.”

9. This Court then went on to state: (P.S. Rajya

case [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 :

1996 SCC (Cri) 897] , SCC p. 5, para 17)

“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.”

10. This being the case, the Court then held:

(P.S. Rajya case [P.S. Rajya v. State of Bihar, (1996) 9

SCC 1 : 1996 SCC (Cri) 897] , SCC p. 9, para 23)

“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

[Prabhu Saran Rajya v. State of Bihar, Criminal

Miscellaneous No. 5212 of 1992, order dated 3-

8-1993 (Pat)] 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

25

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.”

11. In Radheshyam Kejriwal v. State of

W.B. [Radheshyam Kejriwal v. State of W.B., (2011) 3

SCC 581 : (2011) 2 SCC (Cri) 721] , this Court held as

follows: (SCC pp. 594-96, paras 26, 29 & 31)

“26. 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 [B.N.

Kashyap v. Crown, 1944 SCC OnLine Lah 46 :

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: (SCC OnLine Lah: AIR p. 27)

‘… I must, however, say that in

answering the question, I have only

26

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.’

***

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.

***

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.”

27

12. After referring to various judgments, this Court

then culled out the ratio of those decisions in para 38 as

follows: (Radheshyam Kejriwal case [Radheshyam

Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2

SCC (Cri) 721] , SCC p. 598)

“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 the allegation is found to be not

sustainable at all and the person held innocent,

criminal prosecution on the same set of facts and

28

circumstances cannot be allowed to continue, the

underlying principle being the higher standard of

proof in criminal cases.”

13. It finally concluded: (Radheshyam Kejriwal

case [Radheshyam Kejriwal v. State of W.B., (2011) 3

SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para

39)

“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.”

… … … …

15. 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 [Ashoo

Surendranath Tewari v. CBI, 2014 SCC OnLine Bom

5042] of the High Court and that of the Special Judge

and discharge the appellant from the offences under the

Penal Code”.

In the aforesaid judgments, in the case of P.S.RAJYA and

ASHOO SURENDRANATH TEWARI (supra), the Apex Court has

clearly delineated, that if allegations in the departmental inquiry

29

could not be proved on merit and the person is held to be

innocent, criminal prosecution on the said facts ca nnot be

permitted to be continued on the underlying principle of criminal

trial needing higher standard of proof. Exonerati on of the

petitioner in the departmental enquiry is not on technicalities

but on merits as there was no evidence against the petitioner to

drive home the charge. Therefore, in terms of the law laid down

by the Apex Court in the aforesaid judgments, in my considered

view, the chances of the prosecution succeeding in the criminal

trial being bleak, this Court cannot permit continuance of such

criminal trial, any further.

14. Insofar as the contention of the learned High Court

Government Pleader that a subsequent communication is issued

by the Department of Home Affairs that criminal trial pending

against this petitioner should be taken to its logical end, is only

a communication from the Department of Home Affairs to the

Government Advocate at the Office of the Advocate G eneral of

Government. What preceded filing of the present pe tition are,

30

two Government orders issued in favour of the petitioner – one

exonerating the petitioner and the other, communicating to the

CID that investigation should be withdrawn. This

communication relied on by the learned High Court Government

Pleader cannot be elevated to the status of a Government Order,

it is at best an internal communication from the ha nds of

Department of Home Affairs to the Advocate General’s Office.

15. In the light of the exoneration of the petitioner, the

aforesaid Government Orders and the judgments of th e Apex

Court, the communication dated 20-07-2021, from the

Department of Home Affairs to the Office of the Adv ocate

General, would pale into insignificance.

16. Therefore, in my considered view, this is a fit case

where the inherent jurisdiction of the High Court under Section

482 of the Cr.P.C. is invoked to quash the proceedi ngs

mentioned above. In the facts peculiar to this cas e,

continuance of the criminal trial will be an abuse of the process

and result in miscarriage of justice.

31

17. For the aforesaid reasons, I pass the following:

O R D E R

(1) The writ petition is allowed.

(2) The complaint dated 26-10-2015, FIR dated

28-10-2015 and Government Order dated

19-12-2015, are quashed and all further proceedings

are also quashed qua the petitioner.

(3) The petitioner would be entitled to all such

consequential benefits that would flow from the

obliteration of the aforesaid proceedings.

(4) The terminal benefits, if any, withheld on account of

pendency of these proceedings shall be released in

favour of the petitioner within 8 weeks from the date

of receipt of a copy of this order.

Sd/-

J

UDGE

nvj

CT:MJ