Allowed

Subhash Sharma v. Govt of Nct, Dlehi & Ors.

Delhi HC16 May 2024CRL.M.C./450/2017

Case brief

AI extract

What is this about?

The petitioner, a Jail Deputy Superintendent, sought quashing of an FIR for corruption after being exonerated in departmental proceedings on identical charges. The Court held that since the petitioner was exonerated on merits where the lower standard of proof in disciplinary matters was not met, continuing the criminal prosecution with its higher standard of proof was unsustainable. The FIR and pr

What did the court decide?

FIR No. 55/2014 and all proceedings emanating therefrom are quashed.

Subhash Sharma Vs Govt of Nct, Dlehi & Ors. — Corruption | Delhi HC (2024)

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$~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserv e d on: 09.05.2024 Pronounc e d on: 16.05.2024

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CRL.M.C. 450/2017 SUBHASH SHARMA ..... Petitioner

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Through: Mr Salman Hashm i with Mr R. A. Hashmi, Mr. Zeesha n Hashmi and Ms. Sana Hashmi, Advo c ates.

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versus

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GOVT OF N CT, DLEHI & ORS. ..... Respondents Through: Mr. Raj Kumar, A P P for State with Insp. Ranvir Si n gh, PS Anti Corruption Branch

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CORAM: HON'BLE MR. JUSTICE VIKAS MAHAJAN

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JUDGMENT

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VIKAS MAHAJAN, J.

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The presen t petition has been filed seeking quas h ing of FIR No. 55/2014 dated 11. 0 7.2014 registered at PS ACB, New De l hi under Sections 7/13 of the Preve n tion of Corruption Act, 1988 against the p resent petitioner. 2. The case o f the prosecution is that News Nation, a TV news channel telecasted a sting o peration titled ‘Kala Pani’ allegedly sh o wing some of the employees of Del h i Prisons interacting with reporters. Som e of the employees were shown alle g edly accepting bribe money for exte n ding favours to inmates contrary t o the Delhi Prisons Rules. 3. A copy of t h e telecast version in the form of comp a ct disk (CD) was

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Signature Not Verified

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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handed over to a committee of officers constituted to identify the officials who were shown accepting illegal gratification in lieu o f the favour to be extended to the prisoners lodged in jail. On the basis of the r eport given by the said Committee, f o llowing 07 officials including the present petitioner were identified:

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(i) Sh. Sub h ash Sharma, Dy. Suptd. (petitioner herei n ),

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(ii) Sh. Dev e nder Kumar, Head Warden-471, (iii) Ms. Ka v ita, Matron-1314,

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(iv) Sh. Su d esh Kumar, Driver,

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(v) Sh. Mo h it Panwar, Data Entry Operator,

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(vi) Sh. Sus h il Kumar, Data Entry Operator,

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(vii) Sh. De e pak Raj, Data Entry Operator,

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Subsequen t ly, FIR came to be registered under Se c tions 7/13 of the Prevention of Cor r uption Act, 1988 and the aforesaid seve n accused persons were arraigned as an accused. After completion of inves t igation, the final report under Sec t ion 173 CrPC was filed by the polic e against the said accused.

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Later on, d isciplinary proceedings were also ini t iated against the present petitione r under Rule 14 of CCS (CCA) R ules, 1965 vide memorandum dat e d 08.01.2016 and the petitioner was call e d upon to submit his written statem e nt of defence to the following articles o f charge:

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“ Article-I

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That Shri Subhash Sharma, Dy. Supdt. (Jail), while working in Central Jail-3, Tihar, during the year 2013, committed gross misconduct in as much as he expressed his willingness to extend undue facilities and conveniences to the prisoner (s) in lieu of monetary consideration , in violation of the provisions of Delhi Prisons Act, 2000, R ules framed there

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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under and Delhi Jail Manual.

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By the above a c ts of omission and commission, the afore s aid Shri Subhash Sharma, Dy. Su p erintendent (Jail) exhibited lack of abs o lute integrity and devotion to d u ty, which is unbecoming of a Govt. Servant, thereby contravening the provisions of Rule 3 of CCS (Conduct) Rules, 1964.

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Article-II

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That Shri Sub h ash Sharma, Dy. Supdt. (Jail), while f unctioning in the aforesaid post and during the aforesaid period, committed gross misconduct in a s much as he indulged in communicati o n with a person, unauthorisedly, without permission of the Superinte n dent of Jail, in violation of th e provisions of Rule 145 of Delhi Pr i sons (Inspection, Meetings and D uties of Officers) Rules, 1988.

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By the above a c ts of omission and commission, the afore s aid Shri Subhash Sharma, Dy. Su p erintendent (Jail) exhibited lack of abs o lute integrity and devotion to d u ty, which is unbecoming of a Govt. servant, thereby contravening the provisions of Rule 3 of CCS (Conduct) Rules, 1964.” [E m phasis supplied]

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The submission of the learned counsel for the pet i tioner is that the departmental proc e edings eventually culminated into an in q uiry report. In the said inquiry repor t the petitioner was exonerated of both th e charges. 7. Insofar as f i rst Article of Charge is concerned the i n quiry officer held the same to be “ n ot proved” and the finding of the Enq u iry Officer were agreed to by the D isciplinary Authority. 8. However, q u a the second Article of Charge though t h e Enquiry Officer recorded his find i ng that the same is “not proved”, bu t the disciplinary authority while d i sagreeing with the said finding of th e Enquiry Officer recorded its disse n ting note, therefore, the matter was ref e rred to the Union Public Service Co m mission (in short “UPSC”) for its advi c e.

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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The UPSC vide its detailed advice dated 13.09.202 2 after examining the CDs in questi o n observed that it is apparent that the C h arged Officer (in short the “CO”) i.e. the petitioner herein has done re a sonable rigorous scrutiny of the re p orter who was pretending to be an Advocate. It was also observed that ther e is no video / audio showing demand / a c ceptance of bribe by the CO.

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Referring t o the testimony of the witness Sh. B. S . Jarial, the then Superintendent, J a il who was examined as PW2 during the departmental proceedings, the UPSC also observed that interacting of the CO (the petitioner herein) with the reporter was part of the functi o ns of the charged official. As per Section 2 of the Delhi Prisons Act, 2000 the CO is a Gazetted Officer, therefore, his actions were in accordanc e with Rule 61 of the Delhi Jail Ma n ual. Accordingly, the UPSC advised th a t “…. charges are not established a g ainst the CO, Shri Subhash Sharma, the proceedings against him may b e dropped” . The relevant part of the UP S C’s advice dated 13.09.2022 reads a s under:

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“4.9. The Commission note that as per the CDs, it i s apparent that the CO has do n e reasonable rigorous scrutiny of the r eporter, who was pretending t o be an Advocate. When the CO asked t h e specifies of the prisoner, I d entity card of the reporter, the Vakalat n ama and ordered for TALASI / Search of the reporter the reporter fum b led and shivered. There is no video/audio showing demanding/accepting bribe by the CO.

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XXXX XXXX XXXX XXXX

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4.14. The Commission further observe that PW-2 Shri B.S. Jarial, the then Superintendent, Central Jail deposed during the inquiry

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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‘Q.5. Did you notice any exchange, demand or acceptance of any illegal gratification by the official identified as Dy. Supdt. In the verbatim? A.5 No.

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Q.6. Did yo u come across any discussion by any oth e r official with the reporters o f News Nation which names or incriminates the CO in any manner, wh i le watching or preparing the verbatim? A.6 The na m e of the CO never appeared in the dis c ussions by other officials wit h the reporters.

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Q.7. Wheth e r Dy. Supdt, can be termed as subordina t e officer? A.7. As per D elhi Jail Manual, Chapter 13 Delhi P r isons (Inspection, Meetings, a n d Duties of Officers) Rules, 1988 Dy. S updt. Is the Chief Executive O fficer and also a Gazetted Officer (Par a 48, 49, 52, 145), Dy. Supdt. Is required to control the subordinate offi c ers.

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Q.8 Whethe r Dy. Supdt. Is empowered to meet and h e ar the grievances of the repor t er, who posed as an advocate? A.8 Yes, he i s fully empowered and competent.

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Q.9 Whethe r Dy. Supdt. Is required to take the permi s sion of the Supdt. Or any hig h er authority before interacting with any b ody in relation to matters con c erning prisoners for redressal of their grievances? A.9 No.

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4.15. The C ommission observe that the deposition o f the prosecution witness ind i cate that interacting with the reporter by the CO in his office was p a rt of the functions of the CO.

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4.16. The C o mmission observe that as per section 2 o f the Act the CO, a Deputy S u perintendent is a gazetted Officer. Therefore not withstandin g the provisions of Rule 145 of Delhi P r isons (Inspection, Meeting an d Duties of officers) rule, 1988 the acti o ns of the CO as brought out in the charge is in accordance with Ru l e 61 of the Delhi Jail Manua l . In due discharge of the duties of Dep u ty Superintendent the CO was required to meet various persons on day t o day basis in the prison wit h out which the functions assigned to the Deputy

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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Superinten d ent(Jail) cannot be performed.

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4.17. Accor d ingly, having regard to the facts of the c ase, rule position and the deposition of witness, the Commission hold the charge under Article-II a s not proved.

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5. In the light of the observations and findings as discussed above and after taking into account all other aspects relevant to the case, the Commission conclude that since the charges are not established against the CO, Shri. Subhash Sharma the proceedings against him may be dropped. They advise accordingly.”

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[E m phasis supplied] 11. Premised o n the advice of the UPSC, an order dated 10.10.2023 came to be passed wher e by, after considering the evidence, the f a cts on record and circumstances of t he case, a decision was taken by the Ho n ’ble President of India by virtue o f power vested in him under Rule 9 of t he CCS Pensions Rules, 1972 [No w Rule 8 of CCS (Pension) Amendment R ule 2022] to drop the proceedings i n itiated against the charged officer i.e. th e petitioner herein and exonerated hi m from the charges levelled against him v ide memorandum dated 08.01.2016. The relevant part of the order dated 10.10.2023 reads as under:

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“2. And whereas, the Charged Officer (CO), Shri Subhash Sharma did n ot accept the charges vide reply dated 2 8.01.2016. Therefore, a n enquiry was conducted against him und e r Rule 14 of CCS (CCA) R ules, 1965 and Inquiring Authority & Presenting Officer were a ppointed.

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3. And where a s, Sh. Omkar Singh, DANICS (Retd.) w a s appointed as the Inqui r ing Authority vide Order No. F.72(21 ) /2013/DOV /2602-2606 d ated 03.03.2016 and Sh. Prakash C hand, Dy. Superintende n t, Central Jail was appointed as the Presenting Officer vide Order No. F.72(21)/2013/DOV/2607- 2 611 dated 03.03.2016.

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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4. And whereas, the Inquiring Authority, submitted the inquiry report dt. 23.03.2018 and in his findings, the Inquiring Authority has held both the articles of charge as "Not proved" against the CO. The competent authority in GNCTD agreed with findings with reference to Article of Charge I and dis a greed with the findings w ith reference to Article of Charge II of t h e Inquiring Authority. A c opy of the inquiry report and disagreem e nt note was served upon t he CO, vide memorandum No. F.72(21 ) /2013/DOV /19342-1934 4 dated 05.12.2018, for his representatio n .

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5. And whe r eas, the CO submitted his represent a tion dated 05.01.2019 a gainst the Inquiry Report and Disagr e ement note which was e x amined by the Competent Authority in G NCTD and was found de v oid of merit.

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6. And wher e as, due to retirement of the CO during t h e pendency of disciplina r y proceedings, the disciplinary proceedi n gs initiated under Rule 1 4 of CCS (CCA) Rules, 1965 are deemed t o have been continued un d er Rule 9 of CCS (Pension) Rules, 1972 ( Now Rule 8 of CCS (Pen s ion) Amendment Rules, 2022).

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7. And wher e as, the Government of NCT of Delhi fo r warded the case, along w ith the findings/recommendation of th e competent disciplinary authority, i.e., Chief Secretary, GNC T D, to the Ministry of Home Affairs, Government of India f or passing Presidential Order under Rule 9 of CCS(Pension) R ules, 1972 (Now Rule 8 o f CCS (Pension) Amendment Rules,202 2 ).

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8. And whereas, the case was examined in the Ministry of Home Affairs, Government of India and then it was referred to Union Public Service Commission for their advice before passing Presidential Order under Rule 9 of CCS (Pension) Rules, 1972 (Now Rule 8 of CCS (Pension) Amendment Rules, 2022).

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9. And whereas, the Union Public Service Commission vide letter No.3/332/2021-S.I dated 13.09.2022 has tendered their advice. The Union Public Service Commission has advised that

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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"... the charges are not established against the CO, Shri Subhash Shanna, the proceedings against him may be dropped. They advise accordingly".

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10. And whereas, in terms of Department of P e rsonnel & Training's O M No. 11012/8/2011-Estt.A dated 19.11. 2 014, a copy of UPSC's af o resaid advice dated 13.09.2022 was fur n ished to the CO for his re p resentation vide memorandum dated 1 6 .01.2023.

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11. And w h ereas, the CO submitted his repres e ntation dt. 14.03.2023 a n d has submitted that he is in full agree m ent with the advice of UP S C dated 13.09.2022.

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12. And whereas, the case records have been examined and no facts / circumstances have been observed which warrant any interference with the conclusion drawn by the Union Public Service Commission (UPSC) in its advice dt. 13.09.2022.

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13. Now therefore, the President, after considering the evidence & facts on record and circumstances of the case, has decided by virtue of power vested under Rule 9 of the CCS (Pension) Rules, 1972 (Now Rule 8 of CCS (Pension) Amendment Rules, 2022) to drop the proceedings initiated against Sh. Subhash Sharma, Dy. Superintendent (Now Retd.), Government of NCT of Delhi and to exonerate him from the charges levelled against him vide memorandum No. F.72(21)/2013/DOV/328 dated 08.01.2016. It is ordered accordingly.”

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[E m phasis supplied]

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The learne d counsel invites the attention of the C ourt to read the chargesheet filed b y the police under Section 173 CrPC and the first Article of Charge alleged in m emorandum dated 08.01.2016 in juxtap o sition, to contend that the allegation s made therein are identical. The reference was made to the following paragra p h of the chargesheet:

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“From the I n vestigation conducted so far it was fo u nd that an unauthorized person (News Reporter) entered in Tih a r Jail No. 3

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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alongwith el e ctronics device and reached in the of f icer of Dy. Superintende n t Sh. Subhash Sharma without any rest r ictions with the conniva n ce of accused Sh. Devender Ku m ar, Head Warder-471, Tihar Jail both the accused namely S h . Devender and Sh. Subhash Sharma (placed in column No.11) accepted illegal gratification in lieu of favour / facilities to be extended to prisoners lodged in Tihar Jail and thus committed an offence u/s 7/13 POC Act, 1988 r/w 120B/34 IPC . Prosecution s anction u/s 19 POC Act against the accused Sh. Subhash Shar m a and Sh. Devender K u mar has already been obtained fro m competent authority an d same are placed on record.”

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[E m phasis supplied]

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He further s u bmits that since the petitioner has alread y been exonerated of all the charge s in the departmental proceedings there f ore, the criminal proceedings whic h are also premised on the identical alle g ations cannot be sustained, inasmu c h as the standard of proof in the depart m ental proceedings is ‘preponderance of probability’ whereas in case of crimin a l proceedings the threshold of proo f is higher, the same being ‘beyond reas o nable doubt’. To buttress his cont e ntion, the learned counsel has place d reliance on the decisions of the H on’ble Supreme Court in P.S. Rajya Vs. State of Bihar, 1996 (9) SCC 1; Lokesh Kumar Jain Vs. State of Rajasthan (2013) 11 SCC 130 and Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI and Anr., (2020) 9 SCC 636 .

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I have hea r d the learned counsel for the petitione r , as well as, the learned APP for t h e State and have perused the record. 15. The funda m ental question which arises in the prese n t petition for the consideration of t h is Court is that whether the proceedings arising out of FIR No.55/14 which a r e premised on identical allegations on w hich disciplinary proceedings were initiated against the present petitione r are liable to be

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CRL.M.C. 450/2017

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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quashed once the petitioner has been exonerated in the disciplinary proceedings.

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To appreci a te the controversy articulated in the pres e nt petition, at the outset it would be imperative to ascertain whether the a llegations in the criminal proceedi n gs arising out of FIR No. 55/14 an d the disciplinary proceedings are i d entical. For said purpose apt would it b e to examine the allegations in the Chargesheet filed under Section 173 CrPC as well as Memorandum dat e d 08.01.2016 in juxtaposition, which is a s under:

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ALLEGATIONS IN THE ALLEGATIONS I N THE CHARGE SHEET UNDER MEMORANDUM D ATED SECTION 17 3 CRPC 08.01.2016 …..From t h e Investigation Article-I conducted so far it was found that an una u thorized person That Shri Subhash (News Repo r ter) entered in Sharma, Dy. Supdt. Tihar Jail N o. 3 alongwith (Jail), while working in electronics d e vice and reached Central Jail-3, Tihar, in the o f ficer of Dy. during the year 2013, Superintende n t Sh. Subhash committed gross Sharma witho u t any restrictions misconduct in as much with the conn i vance of accused as he expressed his Sh. Devende r Kumar, Head willingness to extend Warder-471, T ihar Jail both the undue facilities and accused namely Sh. Devender conveniences to the and Sh. Subhash Sharma prisoner (s) in lieu of (placed in column No.11) monetary consideration , accepted illegal gratification in in violation o f the lieu of favour / facilities to be provisions of Delhi extended to prisoners lodged in Prisons Act, 200 0 , Rules Tihar Jail and thus committed framed there un d er and an offence u/s 7/13 POC Act, Delhi Jail Manua l . ….. 1988 r/w 120B/34 IPC . Prosecution s anction u/s 19 POC Act ag a inst the accused

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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Sh. Subhash Sharma and Sh. Devender Ku m ar has already been obtaine d from competent authority and same are placed on record.”

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A comparat i ve reading of the chargesheet under Sect i on 173 CrPC and the charge alleg e d in Article-I of the Memorandum d ated 08.01.2016 whereby disciplin a ry proceedings were initiated against th e petitioner, makes it evident that the a llegation contained therein is identical v iz., acceptance of illegal gratificatio n /monetary consideration for extending f a vour/ facilities to the prisoners lodg e d in Tihar Jail.

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For the sak e of completeness it may be stated that i n the departmental proceedings, ther e was an additional charge contained i n Article-II of the Memorandum d a ted 08.01.2016 viz., the petitioner “indulged in communication with a person, unauthorisedly without p ermission of the Superintendent of Jail”, but the said charge has no relevan c e for the purpose of deciding the c o ntroversy involved in the present cas e as no allegation analogous to afor e said Article-II is there in the charge sheet under Section 173 CrPC, thoug h the petitioner was exonerated from the c harge in the said Article-II as well.

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Since it is a n admitted position that the petitioner ha s been exonerated in the disciplinary proceedings, more particularly from the charge contained in Article-I, whic h is identical to the allegation in the c hargesheet under Section 173 CrPC, therefore, the question that needs to be addressed is as to what is the effect of petitioner’s exoneration in the discipl i nary proceedings on the criminal p r oceedings arising out of FIR No.55/20 1 4. However, this question need not detain this Court any longer inasmuch as the same is no

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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more res integra .

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In P.S. Rajya (supra), the appellant therein was ex o nerated of all the charges in the d e partmental inquiry conducted by the C entral Vigilance Commission and t he conclusion of exoneration was concu r red by the Union Public Service C o mmission which led to the passing of f i nal orders by the President in favou r of the appellant. However, when the ap p ellant moved the High Court unde r Section 482 CrPC for quashing the c ognizance of the charge, the High C ourt dismissed the petition. The challenge was taken to the Supreme Court. I n the given factual backdrop, the Hon’b l e Supreme Court formulated the fo l lowing question in paragraph 3 of the judgment, which reads as under:

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“3. The shor t question that arises for our considerati o n in this appeal is whether the r espondent is justified in pursuing the p r osecution against the appellan t under Section 5(2) read with Secti o n 5(1)(e) of the Prevention o f Corruption Act, 1947 notwithstanding t he fact that on an identical ch a rge the appellant was exonerated in the departmental proceedings i n the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission.”...

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Then the H on’ble Supreme Court answered the a bove formulated question and quas h ed the criminal proceedings by observi n g thus:

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“17. At the o utset we may point out that the learned counsel for the respondent c o uld not but accept the position that the standard of proof required to e s tablish the guilt in a criminal case is f a r higher than the standard of p roof required to establish the guilt in the departmental proceedings. He also accepted that in the present case , the charge in the departmenta l proceedings and in the criminal proce e dings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On thes e premises, if we proceed furt h er then there is no difficulty in accepti n g the case of the appellant. F o r if the charge which is identical could not be established in

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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a department a l proceedings and in view of the admitte d discrepancies in the reports s u bmitted by the valuers one wonders wha t is there further to proceed agai n st the appellant in criminal proceeding s ……

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XXXX XXXX XXXX XXXX

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23. Even though all these facts including the Rep o rt of the Central Vigilance C o mmission were brought to the notice o f the High Court, unfortunatel y , the High Court took a view that the issu e s raised had to be gone into i n the final proceedings and the Repo r t of the Central Vigilance Co m mission, exonerating the appellant of t h e same charge in departmenta l proceedings would not conclude the cri m inal case against the appellan t . We have already held that for the rea s ons given, on the peculiar fact s of this case, the criminal proceedings in i tiated against the appellant ca n not be pursued. Therefore, we do not a g ree with the view taken by the H igh Court as stated above. These are t h e reasons for our order dated 27-3-1996¹ for allowing the appeal a nd quashing the impugned criminal proceedings and giving conseque n tial reliefs.”

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In Lokesh Kumar Jain (supra), an FIR was regi s tered against the appellant therein alleging financial irregularities and misappropriation of Rs.4,39,617/-. In departmental proceedings with ident i cal charges, the appellant was ex o nerated on the ground that it was no t clear as to who received the pay m ents for various transactions as the or i ginal and carbon copies of bills we r e not available. In the criminal case, th e police also made repeated oral req u ests and statutory notices under Sectio n 91 CrPC but the department of th e appellant could not provide the requi s ite incriminating documents. The p olice, therefore, submitted the final clo s ure report to the Magistrate after fi ve months of lodging of FIR. But the Magistrate upon submission of the complainant that he is ready to cooperate with the police and procure requ i site documents, directed re-investigati o n under Section

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1Vide order dated 27.03.1996, the Hon’ble Supreme Court allowed the appeal rese r ving the reasons to be given later, which were g i ven vide judgment in P.S. Rajya (supra)

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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156(3) CrPC. Th e reafter, investigation remained pendin g for 12-13 years inspite of the app e llant making request to the police auth o rities to complete the investigation. T he appellant move the High Court under Section 482 CrPC seeking to quash t h e FIR lodged against him, but the High Court declined to quash the FIR. Th e Hon’ble Supreme Court allowed the a p peal and quashed the criminal proc e edings. Relying upon the decision of PS Rajya (supra), it was observed as u n der:

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“23. In P.S. R ajya v. State of Bihar, this Court noticed that the appellant was exonera t ed in the departmental proceeding in th e light of report of the Central V igilance Commission and concurred by the Union Public Service Com m ission. The criminal case was pending s ince long, in spite of the fact t hat the appellant was exonerated in the departmental proceeding f o r same charge.

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24. Having r egard to the aforesaid fact, this Cour t held that if the charges whic h are identical could not be established i n the departmental proceedings, one wonders what is there further to p r oceed against the accused in c r iminal proceedings where standard of proof required to establish the guilt is far higher than the standard of proof required to establish the g uilt in the departmental proceedings.

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25.Having r e gard to the factual scenario, noted a b ove, and for the reasons state d below, we are of the opinion that the p resent case of the appellant is one of the fit cases where the High C ourt should have exercised its power under Section 482 CrPC. It is n o t disputed by the respondent t h at the departmental proceeding was in i tiated against the appellant wit h regard to identical charges made in th e FIR……

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xxxx xxxx xxxx x xxx

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28. ……..Co n sidering the fact that delay in the presen t case is caused by the responde n t, the constitutional guarantee of a sp e edy investigation and trial und e r Article 21 of the Constitution is there b y violated and as the appellant has already been exonerated in the departmental proceedings for identical charges, keeping the case pending against the appellant for investigation, is unwarranted, the FIR deserves to be

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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quashed .”

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[E m phasis supplied]

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In Radheshyam Kejriwal vs. State of West Bengal and Anr. ,² the question arose th a t after the exoneration of the appellant i n the adjudication proceedings unde r the provisions of Foreign Exchange Regulation Act, whether criminal p rosecution on the same set of facts and c ircumstances can be allowed to be c ontinued. In this factual backdrop, the H on’ble Supreme Court observed as under:

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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] t h e Full Bench had not consider e d the effect of a finding of fact in a c i vil case over the criminal cas e s and that will be evident from the following passage of the said judgme n t: (AIR p. 27)

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“… I must, however, say that in answering th e question, I have only r eferred to civil cases where the action s are in personam and n ot those where the proceedings or ac t ions are in rem. Whet h er a finding of fact arrived at in suc h proceedings or actio n s would be relevant in criminal cases, it i s unnecessary for me t o decide in this case. When that qu e stion arises for deter m ination, the provisions of Section 41 of the Evidence Act, will h ave to be carefully examined.”

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XXXX XXXX XXXX XXXX

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38. The ratio which can be culled out from these deci s ions can broadly be stated as fo llows:

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2(2011) 3 SCC 581

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(i) Adjudication proceedings and criminal pr o secution can be launched simultaneously; (ii) Decisi o n in adjudication proceedings is not necessary before initiating c riminal prosecution; (iii) Adju d ication proceedings and criminal proceedings are independe n t in nature to each other; (iv) The f inding against the person facing p r osecution in the adjudicati o n proceedings is not binding on th e proceeding for criminal p r osecution; (v) Adjudi c ation proceedings by the Enforcement D irectorate is not prosecutio n by a competent court of law to attrac t the provisions of Article 20(2) of the Constitution or Section 30 0 of the Code of Criminal P rocedure; (vi) The f i nding in the adjudication proceedings in favour of the person fac i ng trial for identical violation will depe n d upon the nature of finding . If the exoneration in adjudication proceedings is on technical g round and not on merit, prosecution ma y 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 .

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XXXX XXXX XXXX XXXX

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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 found on merit that there is no contravention of th e provisions of the Act in the a dj udication proceedings, the trial of the p erson concerned shall be an a b use of the process of the court.”

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[E m phasis supplied]

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In Ashoo Surendranath Tewari ( supra ) also, the H on’ble Supreme Court relying upo n the report of the Central Vigilance Co m mission (“CVC”) whereby the CV C refused to give sanction for prosecutio n of the appellant

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opining that prim a facie charges do not seem to be estab l ished against the appellant, observe d that chances of conviction in a criminal trial involving the same facts appear to be bleak and accordingly, set aside t h e judgment of the High Court and t h at of the Special Judge whereby they h ad observed that there was no need f or sanction under Section 197 CrPC and p roceeded against the petitioner. Fo r making such observations the Hon’ble Supreme Court referred to para 38(vii) of Radheshyam Kejriwal (sup r a). The relevant observation of the Court reads thus:

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“14. From our point of view, para 38(vii) is important and if the High Court had b othered to apply this parameter, then o n a reading of the CVC repo r t on the same facts, the appellant s h ould have been exonerated.

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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 Surendrana t h Tewari v. CBI, 2014 SCC OnLine B om 5042] of the High Court and that of the Special Judge and disch a rge the appellant from the of fe nces under the Penal Code.”

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[E m phasis supplied]

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At this stag e the guidelines laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 , relating to the exercise of inhere n t power under Section 482 CrPC for q u ashing an FIR or criminal proceedi n gs emanating therefrom could advantag e ously be referred to, wherein the C o urt observed as under:

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“102. In the b ackdrop of the interpretation of the various relevant provisions of t h e Code under Chapter XIV and of the principles of law enunciated by t h is Court in a series of decisions relatin g to the exercise of the extraordina r y power under Article 226 or the inhe r ent powers under Section 482 of t he Code which we have extracted and r e produced above,

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we give the fol l owing categories of cases by way of ill u stration wherein such power cou l d be exercised either to prevent abuse of the process of any court or other w ise to secure the ends of justice, thou g h it may not be possible to la y down any precise, clearly defined and sufficiently channelised an d inflexible guidelines or rigid formulae and to give an exhaustive list o f myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first info r mation report or the co m plaint, even if they are taken at thei r face value and accepte d in their entirety do not prima facie con s titute any offence or make out a case against the accused. (2) Whe r e the allegations in the first informatio n report and other materia l s, if any, accompanying the FIR d o not disclose a cogniza b le offence, justifying an investigation b y police officers under S ection 156(1) of the Code except und e r an order of a Magistr a te within the purview of Section 155(2) o f 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) Whe r e, the allegations in the FIR do not cons t itute a cognizable offence but constitute only a non-cognizable offence, no investig a tion is permitted by a police officer wit h out an order of a Magistr a te 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) Wh e re there is an express legal bar engra f ted in any of the provisions of the Code or the concerned Ac t (under which a crimina l proceeding is instituted) to the institutio n and continuance of the p r oceedings and/or where there is a speci fi c provision in the Code o r the concerned Act, providing efficacio u s redress for the grievan c e of the aggrieved party. (7) Whe r e a criminal proceeding is manifestly a t tended with mala fide an d /or where the proceeding is maliciously instituted with an

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ulterior motive for wreaking vengeance on the a c cused and with a view to s pite him due to private and personal gr u dge.” [E m phasis supplied]

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The legal p osition that emerges is that if an accused has been exonerated and h eld innocent in the disciplinary proc e edings after the allegations have b e en found to be unsustainable, then the criminal prosecution premised on the s a me set of allegations cannot be permitte d to continue. The reasoning for this recourse articulated in above decisions i s that the standard of proof in crimi n al cases is ‘beyond reasonable doubt’ w hich is far higher than ‘prepondera n ce of probability’, the standard of p roof required in disciplinary proce e dings. In case the lower threshold coul d not be met in the disciplinary proc e eding, there is no purpose in prosecuting the criminal proceedings wher e the standard of proof required to est a blish the guilt is higher.

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The reliabil i ty and genuineness of the allegations ag a inst the petitioner has already been t e sted during the disciplinary proceedings and the petitioner has been exonerat e d of such allegations. As noted above, t he findings of the Inquiry Officer, t h e Disciplinary Authority as well as of the UPSC on the charge contained in Article-I which is identical to the a llegations in the criminal case arisi n g out of FIR No.55/2014, are concurren t . In this backdrop the present case c a n undisputedly be brought under sub-p a ras (3) read with sub-paras (5) of p a ra 102 of Bhajan Lal (supra). 28. Keeping in perspective the above discussion, the p r esent case is a fit case which warr a nts exercising of inherent powers by this Court under Section 482 Cr P C for quashing of FIR and the su b sequent criminal proceedings.

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

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Accordingl y , the present petition is allowed and con s equently, the FIR No.55/2014 date d 11.07.2014 registered at PS ACB, N ew Delhi under Sections 7/13 of t h e Prevention of Corruption Act, 1988 a l ongwith all other proceedings eman a ting therefrom, is quashed. 30. The petitio n stands disposed of.

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VIKAS MAHAJAN, J

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MAY 16, 2024 N.S. ASWAL /dss

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 18.0 5.2024 17:59:25

Subhash Sharma v. Govt of Nct, Dlehi & Ors.

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Subhash Sharma v. Govt of Nct, Dlehi & Ors.

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