Allowed

Udai Naryan Thakur v. the State of Jharkhand

Jharkhand HC11 Apr 2023Cr.M.P./2145/2013

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed a petition to quash criminal proceedings against the petitioner. Relying on Ashoo Surendranath Tewari, the court quashed the case as the petitioner was exonerated on merits in a prior departmental enquiry, continuing the trial would be an abuse of process. Other accused remain liable.

What did the court decide?

The criminal proceeding and order of cognizance against the petitioner were quashed and set aside.

Udai Naryan Thakur Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2145 of 2013

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Udai Narain Thakur, son of late Chottak Thakur, resident of Flat No. 302, Sai Harmony Apartment, New Patriliputra Colony P.O. and P.S. Patliputra, District Patna, permanent resident of village Gangauli, P.O. and P.S. Simri, District Buxar, Bihar

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…… Petitioner

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Versus

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The State of Jharkhand …… Opp. Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Rohit Ranjan Sinha, Advocate Mr. Akchansh Kishore, Advocate

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For the State : Mr. Fahad Alam, A.P.P.

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06/Dated: 11/04/2023

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Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr.

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Fahad Allam, learned counsel for the State.

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The present petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 25.10.2010 passed in connection with Latehar P.S. Case No. 23 of 2000, corresponding to G.R. No. 99 of 2000, pending in the Court of learned Chief Judicial Magistrate, Latehar.

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Status report is on record which suggests that case of the co-

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accused has been split up and one of the accused has faced trial and he has been convicted for that he preferred appeal which is still pending and so far as this petitioner is concerned, the case is pending.

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By order dated 22.10.2013 interim protection was granted to the

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petitioner.

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F.I.R. has been registered by the informant Madan Sen Gupta,

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Meso Project Officer alleging therein that

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(a) by a government order no. 152 dated 21.04.1997, Rs. 79,26,400 was given to the Meso Area, Lathear, out of which Rs. 35 lakshs were given for training the tribals in handloom saree making;

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(b). Vide letter no. 340 dated 15.05.1997 the District Welfare Officer

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sent his proposal for the scheme to the Tribal Welfare Commissioner; (c) by letter no. 101 dated 29.01.1998 the Tribal Welfare Commissioner granted permission for entrusing the job of giving training to the Institution proposed by the District Welfare Officer: (d) thereupon the Meso Project Officer, Latehar-Shri Uday Narayan Thakur (petitioner) in the wake of the letter no. 101 dated 21.09.1998 of the Tribal Welfare Commissioner, handed over the job of implementing the scheme to M/s Hindustan Carpet Industries which is run by one Shri Abdul Rehman Warsi:

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(e) Upon request of Shri Abdul Rehman Warsi the petitioner paid Rs. 24,18,400/- at a time on 06.03.1998;

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(f) the following irregularities were committed in the scheme:

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(1). The District Welfare Officer failed to himself verify the list of tribals available in the office and prepared and forwarded the scheme without verification and Deputy Commissioners’ consent. (2). Mr. Warsi deleted names of 50 persons who were not available in the village for training out of 350 persons, and himself selected 50 others, upon which the Meso Officer (petitioner) granted approval without verification or obtaining approval of the higher officials.

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3). some minors were added in the list from which it is inferred that Shri Warsi and the Meso Officer added wrong persons by conniving with each other and misappropriated Government money by showing payment in the name of training,

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4). the attendance register of trainees contains wrong entries made by Shri Warsi as it has been found by the Commissioner that the number of trainees is less and payment of Stipend has been wrongly shown to have been made fully,

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5). Shri. Abdul Rehman Warsi demanded Rs.28,73,000 at a time on

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the day of agreement dated 05.03.1998 and the Project Officer paid Rs. 24,18,000/- without verifying the scheme or trainees ; and the entire thing was done in such haste that even the signature of witnesses were not taken in the agreement. The intention of Shri. Abdul Rehman Warsi was not good as would appear from the fact that he gave information about start of the project on 01.04.1998 and on 04.04.1998 itself he demanded the amount. Thus the Meso Officer also has his hand in misappropriation of Government money. (g) the Divisional Commissioner- Shri P.K. Patnaik made enquiry on 28.08.1998 and reported about less payment of stipend, outsiders shown as trainees and absence of some of the trainees named. The attendance was also found short;

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(h) Shri. Abdul Rehman Warsi procured raw materials before hand and claimed to have paid advance to one Sarwar Ansari and another Shri Vikash Kumar Sinha which were supported by bill/receipt (alleged to be fabricated as the payment was disbelieved);

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(i) enquiry report of the Assistant Engineer, Meso regarding the storage of articles showed that Shri. Warsi did not co-operate in enquiry from which it appears that he did procured the materials and misappropriated the money.

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Accordingly the accused named in the FIR were (1) Shri. Abdul Rehman Warsi, owner of M/s Hindustan Carpet Industries (11) Shri Uday Narayan Thakur, Meso Officer, (iii) Vikash Kumar Sinha and (iv) Sarwar Ansari, along with the FIR the above referred documents, namely the letters and reports were enclosed, vis

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Government Order No.125 dated 24.12.1997

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Letter of the Tribal Welfare Commissioner dated 29.01.1998.

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Meso Officers order letter.

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. Agreement of Shri. Waris/.

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. Money receipt of Shri Warsi.

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Letter of Shri Warsi dated 04.04.1998.

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Enquiry Report of the Commissioner.

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Enquiry Report of the Assistant Engineer, Meso.

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Letter of Regional Development Commissioner, no.

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483, dated 31.10.1998.

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Mr. Indrajit Sinha, learned counsel for the petitioner submits that the petitioner was posted as Meso Officer (Micro Economic Social Organization and allegation against him is that there was no proper supervision by the petitioner and a sum of Rs. 24 lakhs and odd was misappropriated. He submits that by resolution dated 06.09.1999 issued by the Administrative Reforms, Government of Bihar a departmental proceeding was set up against the petitioner for the same set of charge. In the said departmental enquiry Divisional Commissioner, Palamu Division was appointed as Enquiry Officer who submitted enquiry report stating that it became apparent that the petitioner’s implication was false and malafide. On 06.06.2001 enquiry report in departmental proceeding was submitted by the Divisional Commissioner, Palamau finding the petitioner innocent in respect of all the charges including those which are subject matter in the criminal proceeding. In the departmental proceeding Divisional Commissioner has observed as under:-

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“ The charges as shown in both the FORMS smacks of malafide and I am afraid the proceedee cannot be charged against any of the allegation against him. Accordingly, I am inclined to hold that the charges against the then MESO Officer are not proved and as such the proceedee is entitled to be exonerated.”

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He further submits that in view of enquiry report the petitioner is innocent however in the criminal case learned court has taken cognizance. He further submits that the enquiry report was accepted by the Government

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and by Resolution dated 29.11.2005 Annexure-6 and the entire benefits have been directed to be released in favour of the petitioner. He further submits that for the same set of charge, criminal case has also been filed however in the departmental proceeding the petitioner has been exonerated that has been accepted by the Government. He further submits that if for the same set of charge criminal proceeding and departmental proceeding have been initiated and in the departmental proceeding there was exoneration, the entire criminal proceeding is required to be interfered by this Court. To buttress his argument, he relied in the case of “ Ashoo Surendranath Tewari V. C.B.I. (2020) 9

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SCC 636 and relied on paragraph nos. 12 to 15 of the said judgment which is quoted here-in-below:-

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“ 12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case, SCC p. 598) “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; (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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It finally concluded: (Radheshyam Kejriwal case, 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.”

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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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Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22- 12-2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special

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Judge and discharge the appellant from the offences under the Penal Code.”

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On these grounds, learned counsel for the petitioner submits that to allow the proceeding to continue so far as this petitioner is concerned, will amount the abuse of process of the Court.

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On the other hand, Mr. Fahad Alam, learned counsel for the State submits that there is allegation of misappropriation of government money that is why criminal case has been lodged. He submits that if the charges on technical ground is exonerated in the departmental proceeding that is not a ground for quashing of entire criminal proceeding however he accepts that if charges are same in departmental proceeding as well as in criminal proceeding and if the Court comes to the conclusion that charges are same, the Court may pass appropriate order in accordance with law.

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In view of above submission of the learned counsel for the parties, the Court has gone through the materials on record and finds that admittedly for not supervising appropriately the said F.I.R. has been lodged. For the same set of charge departmental proceeding was also initiated against the petitioner which was enquired by the Divisional Commissioner, Palamau Division who submitted enquiry report wherein it has been stated that the allegation is false and malafide against the petitioner. He has also opined that if the petitioner is guilty, the Deputy Commissioner of the district is not above board, however, he has observed which has been quoted here-in-above. The said report has been accepted by the Government vide Annexure-6 and entire benefit has been released in favour of the petitioner. The Court finds that enquiry officer has not exonerated the petitioner on technical ground. It is well settled the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical or not. Looking into the F.I.R. as well as departmental proceeding, it appears that for the same set of charge, departmental proceeding was also initiated in which petitioner has been

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exonerated by the enquiry officer and the said report has been accepted by the Government.

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In view of above facts, it appears that the case of the petitioner is

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fully covered with Ashoo Surendranath Tewari(supra).

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In view of above facts, reasons and analysis, the entire criminal proceeding including order taking cognizance dated 25.10.2010 passed in connection with Latehar P.S. Case No. 23 of 2000, corresponding to G.R. No. 99 of 2000, pending in the Court of learned Chief Judicial Magistrate, Latehar, so far as this petitioner is concerned, is quashed and set aside.

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It is made clear that the criminal proceeding with regard to rest of the accused is kept intact.

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This petition is allowed and disposed of. Pending I.A. if any, stands disposed of. Interim order is vacated.

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(Sanjay Kumar Dwivedi, J.)

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Satyarthi/

Udai Naryan Thakur v. the State of Jharkhand

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Udai Naryan Thakur v. the State of Jharkhand

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