Allowed

D.C.Jain v. State of Chhattisgarh

Chhattisgarh HC11 Sept 2023CRMP/398/2019

Case brief

AI extract

What is this about?

The Chhattisgarh High Court quashed criminal charges framed against a government employee who was exonerated in departmental proceedings on the same facts. Relying on Supreme Court precedents, the court held that continuation of prosecution after merit-based exoneration constitutes an abuse of process.

What did the court decide?

Quashing of the order dated 10.07.2018 framing charges, setting aside the revisional order, and discharge of the petitioner from charges.

D.C.Jain Vs State of Chhattisgarh — Constitutional and Fundamental Rights | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 398 of 2019

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D.C.Jain S/o Shri D R Jain Aged About 59 Years Post As Executive Engineer, Water Resources Division, Rajnandgaon, At Present- Executive Engineer, Water Resources Division, Raipur District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Its Station House Officer, Police Station Dongargarh, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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---- Respondent

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(Cause-title taken from Case Information System)

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For Petitioner :- Mr. Rajesh Kumar Kesharwani, Advocate. For State/Respondent :- Mr. Vimlesh Bajpai, Govt. Advocate.

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Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board

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11.09.2023

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1. In the present petition, the petitioner has challenged the order dated 29.11.2018 passed by the learned Additional Judge, Dongargarh to the Court of learned First Additional Sessions Judge, Rajnandgaon (C.G.) in Criminal Revision No.07/2018.

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1. The facts of the present case are that the petitioner was posted on the post of Executive Engineer in the Water Resources Department, Rajnandgaon at the relevant time and the petitioner was directed for technical sanction for the construction of Stop Dam in Nala under the MENREGA scheme at Village Sendri, District Rajnandgaon. The work order was issued and construction work was started in the financial year 2010-11. During the course of the construction, certain complaints were made and the Executive Engineer, R.E.S. Division, Rajnandgaon was directed to enquire into the matter and thereafter an enquiry report was submitted before the Chief

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Executive Officer, District Panchayat, Rajnandgaon wherein certain irregularities were pointed out. A show cause notice was issued to the petitioner on 08.10.2012, in turn, a reply was filed on 15.10.2012. The article of charge was issued on 02.02.2013 and after a full-fledged departmental enquiry, the petitioner was exonerated from the charges vide decision dated 03.05.2018. At the same time, one FIR was registered against the petitioner for the commission of offences under Sections 409 and 420 of the IPC. The police investigated the matter, the charge sheet was filed and thereafter, the learned trial Court i.e. the JMFC Dongargarh framed the charges for the commission of offences under Sections 409 and 420 of the IPC.

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Learned counsel for the petitioner would submit that charges were framed and an order framing charge was passed on 10.07.2018 by the learned trial Court and on the same set of facts and allegations in the disciplinary enquiry the petitioner was exonerated vide order dated 03.05.2018 and therefore, the continuation of the prosecution would be an abuse of process of law. Thus, he would pray to quash the order passed by the learned trial Court dated 10.07.2018 and the order passed by the learned revisional Court dated 29.11.2018. He has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW and Anr. , reported in 2020 (9) SCC 636.

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Learned counsel for the respondents would oppose. Mr Vimlesh Bajpai would submit that the parameters of departmental enquiry and criminal prosecution are entirely different. He would further submit that a person can be prosecuted in a criminal case and at the same time he can be proceeded in a departmental enquiry. He would submit that though the

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petitioner has been exonerated in the departmental enquiry, he can be convicted by the Criminal Court, therefore, the petition preferred by the petitioner deserves to be dismissed.

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1. I have heard learned counsel appearing for the parties, considered their rival submissions made herein above and also perused the documents.

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1. The department issued the article of charges against the petitioner on 02.02.2013 and charge No.1 is relevant which is reproduced below:-

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"vkjksi dzekad 01%& laHkkxk?khu eujsxk ds rgr xzke&lasnjh esa dze'k% lsUnjh LVkiMse dz- 01] 02] 03 dh iz'kkldh; Lohdfr jkf'k 24-03 yk[k] 19-79 yk[k ,oa 17-35 yk[k dh iznku dh xbZ FkhA vkids }kjk lsUnjh LVkiMse dz-01 ,oa 02 esa ukys ds dSpesaV ds vk/kkj ij ukys ds fMLpktZ (cgko) ds fy;s foHkkxh; ekinaMks ds vuq#i dh xbZ rduhdh fMtkbZu ds vuqlkj LVkiMse esa dze'k% 38 eh- ,oa 21 eh- dh yackbZ ds LFkku ij izdj.k esa izkIr f'kdk;r ds vk/kkj ij fu;qDr tkap vf/kdkjh }kjk dk;ZLFky ij dh xbZ tkap esa mDr nksuksa LVkiMse ds fy;s dh xbZ [kqnkbZ dze'k% 28 eh- ,oa 12 eh- gh ikbZ xbZ tks vkids }kjk Lohdr MªkbZax esa n'kkZbZ xbZ yackbZ ls de gksus ds QyLo#i rduhdh nf"Vdks.k ls dnkfi ekU; ;ksX; ugha ikbZ xbZA ftyk iapk;r }kjk vkidks tkjh dkj.k crkvks lwpuk fnukad 08-10-2012 ds izR;qRrj esa vkius voxr djk;k fd LVkiMse dz-01 ,oa 02 viw.kZ gS] rFkk dze'k% 40% ,oa 32% dk;Z gqvk gSA rFkkfi dk;Z iw.kZ gksus ij ekin.Mksa ds vuqlkj dk;Z iw.kZ fd;k tkosxkA vkids bl izR;qRrj ij dk;Zikyu vfHk;ark] xzkeh.k ;kaf=dh lsok laHkkx] jktukanxkao }kjk Vhi vafdr dh xbZ gS fd "fu;ekuqlkj rduhdh nf"V ls LVkiMse dh uhao [kqnkbZ ,d lkFk dh tkrh gS] vr% vkidk izR;qRrj ekU; ;ksX; ugha gSA"

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bl izdkj] vkids }kjk Lohdr MªkbZax@izkDdyu ds vuq#i dk;ZLFky ij dk;Z ugha djok dj Lohdr dk;ksZa ds fy;s vko';drk ls vf/kd dk izkDdyu Lohd`r djok;k x;k gS] tks rduhdh ekinaMks dh vogsyuk ds lkFk&lkFk foRrh; vfu;ferrk fd;s tkus dk Hkh ifjpk;d gSA

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vr% vkidk ;g d`R; dk;Z foHkkx fu;ekoyh Hkkx&2 dh dafMdk&1-25 rFkk NRrhlx<+ flfoy lsok vkpj.k fu;e&1965 ds mifu;e&3 (i) (ii) (iii) ds rgr dnkpj.k dh Js.kh esa vkrk gSA rn~uqlkj vkius Lo;a dks NRrhlx<+ flfoy lsok (oxhZdj.k] fu;a=.k rFkk vihy fu;e) ds fu;e 14 ds rgr vuq'kklfud dk;Zokgh dk ik= cuk fy;k gSA"

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The learned trial Court framed charge against the petitioner on 10.07.2018

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which is as under:-

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"01- vkius fnukad 11-02-2011 ls flracj 2012 ds e/; LFkku x z ke l a snjh varxZr Fkkuk M+ksxjx<+ ftyk&jktukanxkao (N-x-) LVki Mse dzekad 1 ,oa 2 ds fuekZ.k ds fy;s Lohdr yackbZ ds vk/kkj ij Lohdr jkf'k dk izkDdyu rS;kj dj LVki Msae dzekad 1 dh yackbZ 38 ehVj ds LFkku ij 28 ehVj RkFkk LVki Msae dzekad 2 dh yackbZ 21 ehVj ds LFkku ij 12 ehVj dk fuekZ.k dk;Z djkdj mDr LVki Msae dh yackbZ dh Lohdr jkf'k dks csbZekuhiwoZd ykHk izkIr djus ds vk'k; ls Lohdr yackbZ ds foijhr de yackbZ dk dk;Z djkdj 'kklu ds lkFk Ny dkfjr fd;kA bl izdkj vkidk mDr d`R; Hkkjrh; naM lafgrk dh /kkjk 420 ds varxZr naM+uh; gS vkSj bl U;k;y; ds LakKku ds varXkZr gSA

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02- vkius fnukad 11-02-2011 ls flarcj 2012 ds e/; LFkku xzke lsanjh LVki Mse dzaekd 1 ,oa 2 ty lalk/ku foHkkx varxZr Fkkuk Mksaxjx<+] ftyk&jktukanxkao (N-x-) esa yksd lsod ds :Ik es adk;Zikyu vfHk;ark ty lalk/ku laHkkx jktukanxkao dh gSfl;r ls xzke lsanjh LVki Mse dzekad 1 ds fy;s Lohdr jkf'k 24-03 yk[k ,oa LVki Mse dzekad 2 ds fy;s Lohdr jkf'k 19-79 yk[k vius esa U;Lr gksr **s** gq;s ;k ml ij dksbZ v[r;kj vius esa U;Lr gksrs gq;s mDr U;Lr laifRr ds fuoZgu ds ckjs esa fdlh funs'k dk ;k ,sls U;kl fuoZgu ds ckjs esa fdlh vfHkO;Dr ;k foof{kr lafonk dk vfrdze.k djds csbZekuh ls ml laifRr dk mi;ksx ;k O;;u fd;k ;k tkucw>dj fdlh vU; O;fDr }kjk ,slk djuk lgu dj] fd U;Lr laifRr dk vkijkf/kd U;kl Hkax fd;kA bl izdkj vkidk mDr d`R; Hkkjrh; naM lafgrk dh /kkjk 409 ds varxZr naM+uh; gS vkSj bl U;k;ky; ds laKku ds varxZr gSA"

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It is quite vivid that the contents of the charge framed against the petitioner and the allegations made in the criminal case and departmental inquiry are almost similar.

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The Hon'ble Supreme Court in the matter of Ashoo Surendranath Tewari (supra) in para No.8 to 13 has held as under:-

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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 vs. State of Bihar, (1996) 9 SCC 1, the question before the Court was posed as follows:-

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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.”

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9. This Court then went on to state:

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“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.”

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

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“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 27-31996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.”

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11. In Radheshyam Kejriwal vs. State of West Bengal and Another, (2011) 3 SCC 581, this Court held as follows:-

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“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 [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)

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… 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.”

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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

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lies on the prosecution.

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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.”

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12. After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:-

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“38. The ratio which can be culled out from these decisions can broadly be stated as follows:

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(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

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(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

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(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

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(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

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(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;

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(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

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(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.”

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13. It finally concluded: (Radheshyam Kejriwal case (supra) SCC p.598 para 39

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“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

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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.”

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1. Now, coming to the present case in the light of the judgment passed by the Hon'ble Supreme Court in Ashoo Surendranath Tewari (supra) it is quite clear that in the departmental enquiry, the petitioner has been exonerated thereafter the charges have been framed by the learned JMFC. The allegations made in the FIR and the article of charge are almost similar. Taking into consideration the well-settled principles of law, in the opinion of this Court it is a fit case to quash the charges framed against the petitioner. Consequently, the petition is allowed and the charges framed against the petitioner are hereby set aside. The order passed by the learned Sessions Court is also set aside and the petitioner is discharged from the charges leveled against him.

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1. In the result, the petition stands allowed to the extent indicated herein above.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Aadil

D.C.Jain v. State of Chhattisgarh

Case brief

What is this about?

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D.C.Jain v. State of Chhattisgarh

Case brief

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