Dr.Brajenra Kumar Tiwary Alias B.K.Tiwary Vs State of Jharkhand And Anr.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1272 of 2008

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Dr. Brajendra Kumar Tiwary @ Dr. B.K. Tewary son of late Srishtidhar Tewary working in the capacity of Scientist ‘F’ (Deputy Director) and Head/co-ordinator, Environment Management Group (EMG) at Central Mining Research Institute (CMRI) Dhanbad under council of Scientific & Industrial Research ‘CSIR’ New Delhi presently residing at CMRI Qr No. Type V-/10 CMRI Colony, Dhanbad, P.S.-CMRS, P.S. + Dist.-Dhanbad.

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… … Petitioner

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Versus

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The State of Jharkhand through CBI.

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Sri P. Ananta Krisnan CBO, CSIR, New Delhi. Son of K. Pakchi Rajan, posted as Chief Vigilance Officer, Council of Scientific + Industrial Research Anusandhan Bhawan, 2 Rafi Marg, New Delhi.

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… … Opp. Parties

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--------CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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---------- For the Petitioner : Mr. Mahesh Tewari, Advocate For the O.P.-CBI : Mr. Deepak Kr. Bharti, Advocate For the O.P. No.2 : Mr. Abhay Prakash, Advocate

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C.A.V. on 09^th May, 2025 Pronounced on 13/06/2025

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Prayer:

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The instant petition has been filed under Section 482 of the Code

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of Criminal Procedure for the following relief(s):

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“That in the instant case the petitioner prays for quashing of the entire criminal case being RC Case No.1(A)/03(D) including order taking cognizance dated 21.04.2006 wherein cogninzance of the offences under section 120(B)/420 of IPC and u/s 467, 468, 471 IPC and u/s 13(2) read with section 13(1)(d) of Prevention of Corruption Act 1988 has been taken as against the present petitioner in connection with RC Case no.1(A)/2003(D) presently pending in the court of learned Spl. Judge, CBI-cum-Additional District Judge VIIIth at Dhanbad. ”

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Factual Matrix:

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The brief facts of the case leading to filing of the present petition

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requires to be enumerated herein, as under:

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The FIR was registered on 27.01.2003 by the CBI Dhanbad against the complaint letter no.15(48)/91 viz. dated 23.01.2003 of Shri P. Ananth Krishnan, CVO, CSIR, Delhi against Dr. T.N. Singh and others who all are scientists/Ex-Scientists or officials of CMRI, Dhanbad, wherein it was alleged that there had been a massive mulching of CSIR Funds by the aforesaid officials of CMRI during April 1999 to June 1999 in connection with purchase of various scientific items/equipment. It has been further alleged in the FIR that during the period of April 1999 to June 1999 accused officials of CMRI Dhanbad in connivance with some general order supplier firms caused purchase of scientific equipment items of highly inflated rates on limited Tender basis wither by splitting the requirement or by keeping the estimated cost within Rs.2.00 lakhs which is the ceiling for limited tendering and thus, caused wrongful loss of Rs.50 lacs (fifty lakhs) only approx. to CMRI Dhanbad in Labourator of CSIR and corresponding wrongful gain to themselves.

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Based on the aforesaid allegation RC Case no.1(A)/2003(D) was instituted.

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After conducting investigation, charge sheet has been submitted against the petitioner under Sections 120(B)/420/467/468/471 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act.

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On the basis of the charge-sheet, cognizance of the offences under Sections 120(B)/420/467/468/471 of IPC and Section 13(2) read

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with Section 13(1)(d) of Prevention of Corruption Act has been taken as against the petitioner.

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7. The present petition has filed under Section 482 Criminal Procedure Code for quashing of the entire criminal case being RC Case No.1(A)/03(D) including order taking cognizance dated 21.04.2006 wherein cogninzance of the offences under section 120(B)/420 of IPC and u/s 467, 468, 471 IPC and u/s 13(2) read with section 13(1)(d) of Prevention of Corruption Act 1988 has been taken as against the present petitioner.

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Argument on behalf of the learned counsel for the petitioner:

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Learned counsel for the petitioner has taken the sole ground for quashing the entire criminal case being R.C. Case No.1(A)/03(D) including order taking cognizance dated 21.04.2006 on the basis of exoneration in the departmental proceeding and in support thereof, reliance has been placed upon the judgment rendered by the Hon'ble Apex Court in P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1 .

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It has further been submitted that on similar allegations of purchasing of chemicals by local tender and splitting of the indents, exactly of the same period i.e., April to June, 1999, CBI on their source registered a separate case, which was registered as RC Case No 16(A)/2003 (D against the petitioner and others. Upon investigation, the CBI did not find any culpability on the

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part of any of the accused persons and thus finding no evidence and culpability of criminality, closed the case.

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Learned counsel for the petitioner, on the aforesaid premise, has submitted that the present petition is fit to be allowed.

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Argument on behalf of the learned counsel for the Opp. parties:

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Learned counsel for the opp. parties has contended that merely exoneration in the departmental proceeding cannot be a ground for quashing the entire criminal proceeding.

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It has further been submitted that though the allegations were there in R.C. Case No.16(A) of 2003(D) that all the accused persons in connivance with each other and also the supplier did purchase the materials at highly inflated rate on limited tender basis either by splitting the requirement or by keeping the estimated cost within Rs.2 lakh but no element of criminality was found during investigation but here in the instant case, element of the criminality was found on the part of the accused persons including the present petitioner as it has been found in course of investigation of R.C. Case No.1(A) of 2003(D)that equipment which were purchased were of sub-standard and that certain items were purchased even without requirement and that accused supplier has paid illegal gratification to some of the accused public servants and that procedure relating to purchase was completely ignored, as a result of which huge loss was caused to the CMRI, Dhanbad.

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It has further been submitted that any finding recorded by the disciplinary authority even if it is there as in the case of the petitioner, it will hardly affect the criminal case which gets decided on the basis of material collected during investigation and therefore, any finding recorded by the disciplinary will have no bearing upon the criminal case. Learned counsel in order to buttress this limb of argument has put his reliance on the judgment rendered by the Hon’ble Apex Court in the case of Supriya Jain v. State of Haryana , (2023) 7 SCC 711 (para 17) and Iveco Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya , (2024) 2 SCC 86 (para 71).

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Learned counsel for the opp. parties, on the aforesaid premise, has submitted that the present petition, therefore, is not fit to be allowed.

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Analysis:

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This Court has heard the rival submissions advanced on behalf of the learned counsel for the parties and perused the entire material available on record.

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Before adverting into facts of the instant case it will be profitable to discuss herein the ambit and scope of inherent jurisdiction of the Court under Section 482 Cr.P.C.

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The powers under Section 482 Cr.P.C. are the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or

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otherwise to secure the ends of justice. But the expressions “abuse of process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise. Reference in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in the case of Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 .

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It is settled proposition of law that to invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Reference in this regard may be taken by the judgment rendered by the Hon’ble Apex Court in the case of Rajiv Thapar and Others v. Madan Lal Kapoor [(2013) 3 SCC 330] which reads as under:

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“29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages

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as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have farreaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.”

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In State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568] the powers of the High Court under Section 482, Cr. P.C. and Article 226 of the Constitution of India were highlighted and the Hon’ble Apex Court observed that:

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“29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the

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interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426].”

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In Rukmini Narvekar v. Vijaya Satardekar [(2008) 14 SCC 1], the Hon’ble Apex Court has observed that the width of the powers of the High Court under Section 482, Cr. P.C. and under Article 226 of the Constitution of India are unlimited, that the High Court could make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In a concurring order passed in the very same case, it was observed in addition that in exercising jurisdiction under Section 482, Cr. P.C., the High Court is free to consider even material that may be produced on behalf of the accused to arrive at a decision whether charge as framed could be maintained.

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In Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home [(2019) 11 SCC 706], referring to the provisions of Section 482, Cr. P.C., the Hon’ble Apex Court held as follows:

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16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237]. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse

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of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.”

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Thus, it is settled position in the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.

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As can be gathered from the above, Section 482 Cr.P.C. recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr. P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions

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contained in the charges levelled by the prosecution deserve to be overruled.

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While exercising the powers vested in the High Court under Section 482, Cr. P.C., whether at the stage of issuing process or at the stage of committal or even at the stage of framing of charges, which are all stages that are prior to commencement of the actual trial, the test to be applied is that the Court must be fully satisfied that the material produced by the accused would lead to a conclusion that their defence is based on sound, reasonable and indubitable facts. The material relied on by the accused should also be such that would persuade a reasonable person to dismiss the accusations levelled against them as false.

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In the backdrop of the aforesaid settled proposition of law this Court is now adverting to the fact of the case in order to adjudicate the claim of the petitioner that he has no role in the alleged commission of crime.

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This Court has gone through the order taking cognizance as well as various paragraph of the counter affidavit, wherefrom it is evident that C.B.I., S.P.E., Dhanbad has instituted the case against 16 persons and other unknown on the basis of a report of the “Job Chief Vigilance” officer Counsel of Scientific and Industry Research, New Delhi bearing R.C.1(A)/03-D dt.28.01.2003 for the offences u/s 120-B, 420 IPC and Section 13(2) r/w 13(1)(d) P.C. Act.

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The Chief Vigilance Officer had alleged that Dr. T.N. Singh, Ex. Director, C.M.R.I and few other officials of C.M.R.I., Dhanbad during the period of April, 1999 had purchased many items like equipment, filter papers, digital burette etc. and chemicals on limited tender by splitting the requirement or by keeping the estimate-cost, below Rs. 2 lacs. The ceiling for limited tendering. The enquiry Letters were sent to only few selected firms and this was done with motive of personal gains resulting price difference between the price that which the purchases were affected and the actual price of the items.

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The details of the payment made price as per price list and loss amount has been mentioned which shows that there was huge wrongful loss to the tune of approximately Rs. 50 lacs and corresponding wrongful gain to the accused persons which is a result of criminal conspiracy.

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The learned counsel for the petitioner has submitted that since if the charge which is identical could not be established in the departmental proceeding where the standard of proof required to establish the guilt is quite lesser than the standard of proof required to establish the guilt in criminal case, the criminal proceeding should not be allowed to be continued, rather be quashed.

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Per contra the learned counsel for the CBI has submitted that any finding recorded by the disciplinary authority even if it is there as in the case of the petitioner that the finding of disciplinary

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authority will hardly affect the criminal case which gets decided on the basis of material collected during investigation and therefore, any finding recorded by the disciplinary will have no bearing upon the criminal case.

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In the aforesaid context the seminal question involved in the instant case is whether the proceeding arising out of RC Case no.1(A)/2003(D), which are premised on identical allegations on which disciplinary proceedings were initiated against the present petitioner, are liable to be quashed once the petitioner has been exonerated in the disciplinary proceedings.

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Before appreciating the aforesaid issue, this Court thinks fit to refer herein the article of charges which has been alleged against the present petitioner in departmental proceeding:

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Article of charges :

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Article-I

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Dr. BK Tewary while functioning as Scientist in Central Mining Research Institute, Dhanbad during the year 1999 and onwards committed misconduct inasmuch as, he, in his capacity as HOD & Project Leader, did. not club the requirements for purchase of dispensettes, digital burettes, pipette controllers and pipetters etc. and split their processing by repeatedly recommending on 9.4.99, in June '99, on 7.6.99 and 10.6.99 the names of firms from some of whom the said equipment came to be purchased at prices higher than those in the price list and thereby caused huge pecuniary gains of over Rs. 12.00 lakhs to the concerned firms and conversely losses to CMRI/CSIR and thus violated the Rule 103 of General Financial Rules (GFR) which envisages that Stores should be purchased economically and not in small quantities and thereby exhibited lack of absolute integrity and devotion to duty contravening the Rule 3 (1) (i) and (ii) of CCS (Conduct) Rules, 1964 as made applicable to Council employees.

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Article-II

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That the aforesaid Dr. Tewary while functioning as Scientist in Central Mining Research Institute, Dhanbad during the year 1999 and onwards committed misconduct inasmuch as, he recommended on 28.5.99 and 25.6.99 acceptance of quotations from the firms, M/s. Shivalik Enterprises, Dhanbad, M/s. Vishal Marketing, Calcutta and M/s. Ava Enterprises, Dhanbad which led to purchase from them of dispensettes, digital burettes, pipette controllers and pipetters etc for more than Rs. 7.00 lakhs at prices higher than those in the price list and thereby caused huge pecuniary gains of over Rs.12.0 lakhs to the concerned firms and conversely loss to CMRI/CSIR and thus exhibited lack of absolute integrity and devotion to duty contravening the Rule 3 (1) (i) and (ii) of CCS (Conduct) Rules, 1964 as made applicable to Council employees

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From the aforesaid it is evident that on the aforesaid charges departmental proceeding was initiated and consequently criminal proceeding has also been initiated but it is evident from the record that the charge-sheet has been submitted against the petitioner under Section 120 B IPC also along with the other offences i.e. 420/467/468/471 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and consequently the cognizance of the offence has been taken by the concerned court.

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It needs to refer herein that the course which is to be taken in the matter of departmental proceeding is that the charge is not to be framed on the basis of the allegation of conspiracy but the charge is to be framed on the ground of misconduct in discharge of official duty, therefore the petitioner since has been alleged to have committed offence under Section 120(B) of IPC and the angle of conspiracy since has not been appreciated in the departmental proceeding rather the same can only be appreciated

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in trial on the basis of evidence led by the parties, as such, exoneration in the departmental proceeding, on the issue of accusation of conspiracy in the judicial proceeding will not have any impact applicable.

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It requires to refer herein that conspiracy is not an open affair, therefore, the prosecution has to rely upon the evidence pertaining to the acts of various parties to prove such an agreement of conspiracy on the basis of circumstantial evidence which can be inferred by necessary implication.

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The Hon’ble Supreme Court, in plethora of decisions, has observed that for an offence punishable under Section 120B of the IPC, the prosecution need not necessarily prove that the propagators expressly agree to do or carried to be done an illegal act and such agreement may be proved by necessary implication to be determined from the circumstantial evidence brought on record.

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Further, Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. Reference in this regard may be taken from the judgment rendered by the Hon’ble Apex Court in the case of State of T.N. through

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Superintendent of Police CBI/SIT Petitioner v. Nalini and others; (1999) 5 SCC 253.

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In Bhagwan Swarup Lal Bishan Lal v. State of

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Maharashtra (AIR 1965 SC 682) a three-Judge Bench of the Apex Court held that the offence of conspiracy can be established either by direct evidence or by circumstantial evidence and the section will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to that conspiracy.

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The Hon’ble Apex Court in the case of State of M.P. v. Sheetla

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Sahai (2009) 8 SCC 617 has held as follows:—

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“Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.”

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Thus, from the aforesaid settled proposition of law that offence of conspiracy can be established either by direct evidence or by circumstantial evidence but the Section 120-B of the Indian Penal Code will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong.

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Thus, on the basis of the aforesaid settled legal proposition, it is evident that the angle of conspiracy on behalf of the petitioner may well be appreciated before the trial court only.

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Further, from the record, it appears that during investigation, the C.B.I. has collected several documents and has recorded statement of several witnesses. Some witness namely, Haldhar Mandal, Pradip Kr. Biswas, Ravindra Nath Rana, Rupak Choudhary, Pravir Kumar Rai have been produced and their statement u/s 164 Cr.P.C. has been recorded.

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From investigation, it reveals that the petitioner along with other accused persons were public servant during the year 1999-2000, and several items like Glass Microfibre, Filter paper, Whatman Filter Paper, Digital Burette, and Dis-pensetee Bottle Top Dispensor, Digital Titration Burrette, Digital Burette positive, Displacement Micro-pipetor and several types of chemicals and other equipments were purchased by the C.M.R.I and for such purchase, a conspiracy was made by the accused persons with supplying firms and in pursuance of that conspiracy, false incomplete split indents were initiated and in the most faulty manner it was approved by the Standing Purchase Committee and Purchase Order was placed on the firms and supply was taken at inflated rates on limited tenders.

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The Officials of CMRI have also managed and forged the quotation of various firm and procured the purchase order for various items. It has been alleged that actual supplier was deliberately kept out. The specific items received were not as per

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specification and were of sub-standard even sometimes, were purchased without requirement.

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Thus, prima facie it appears that in the purchase procedure the ideal rules were not followed. Even the investigation further reveals that, even some firms were not remotely connected with the dealing in the specific items and materials. Further, spectrometer, microwave, digestion system were found to be different from the specification and were inferior in quality. Similarly, the other items like filter paper of Whatman 'filter paper, digital burette, Dispensetee bottle and chemicals were purchased from the firms who were not authorized dealers in such matters. From the perusal of order taking cognizance and counter affidavit, it further appears that while making purchase of aforesaid items for C.M.R.I. the rules required for purchase of such items were not followed.

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Thus, from the record, prima facie it appears that there are sufficient material which discloses prima facie case for the offence punishable u/s 120B, 420, 467, 468, 471 IPC and sec. 3(2) r/w 13(1)(d) of the P.C. Act against the present petitioner.

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It also appears that necessary sanction order has been obtained against the present petitioner along with the other accused persons.

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Further it requires to refer herein settled proposition of law that while quashing a charge/proceedings either in exercise of jurisdiction under Section 397 CrPC or Section 482 CrPC or together, the Court cannot take into consideration external

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materials given by an accused for reaching to the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. Reference in this regard may be taken from the ratio rendered by the Hon’ble Apex Court in the case of Supriya Jain v. State of Haryana(supra).

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Further, the Hon’ble Apex Court in the case of Iveco Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024) 2 SCC 86 while referring the ratio of Supriya Jain v. State of Haryana(supra) has observed that those documents/materials on which the appellant seeks to rely have not been admitted or accepted by the complainant and are yet to be proved; hence, the same cannot be looked into while considering a prayer for quashing. For ready reference the same is being quoted as under

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71. Answer to Question (b) must necessarily depend on the facts of each case, meaning thereby the quality of evidence that is led in course of the trial and the weight to be attached to it. At this stage it would not be inappropriate to consider the other line of argument advanced by Mr Taneja that those documents/materials on which the appellant seeks to rely have not been admitted or accepted by the complainant and are yet to be proved; hence, the same cannot be looked into while considering a prayer for quashing. The ratio of the decision in Supriya Jain [Supriya Jain v. State of Haryana, (2023) 7 SCC 711 : (2023) 3 SCC (Cri) 281] finds support from an earlier decision of this Court in Chand Dhawan v. Jawahar Lal [Chand Dhawan v. Jawahar Lal, (1992) 3 SCC 317 : 1992 SCC (Cri) 636] , where it was held that the High Court [Jawahar Lal v. Chand Dhawan, 1991 SCC OnLine P&H 2108] of Punjab and Haryana was not justified in quashing the complaint and the criminal proceedings on the ground of abuse of the process of court by relying on additional material produced by the

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accused, which was not admitted in evidence or accepted by the complainant.

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Further it needs to refer herein that the Division Bench of the Hon’ble Supreme Court when did find that two contrary views are there on the point as to whether exoneration in the departmental proceeding would lead to acquittal in a criminal case in a case of P.S. Rajya vs State of Bihar (supra) and also in a case of Kishan Singh vs.Gurpal Singh [(2010) 8 SCC 775] , referred the matter to a Larger Bench in a case of State (NCT of Delhi) vs. Ajay Kumar Tyagi (2012) 9 SCC 685 where following issue fell for consideration :-

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“ whether the prosecution against an accused notwithstanding his exoneration on the identical charge in the departmental proceeding could continue or not” ?

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The petitioner emphatically relied upon a decision rendered in a case of P.S. Rajya vs State of Bihar (supra). However, their Lordships after taking consideration the fact of the case of P.S. Rajya vs State of Bihar (supra) did find that their Lordships in a case of P.S. Rajya vs State of Bihar (supra) has never derived any proposition that on exoneration of an employee in the departmental proceeding, criminal prosecution on the identical charge or the evidence has to be quashed, rather on the peculiar facts appearing in that case, criminal case was quashed upon exoneration in the departmental proceeding which, according to their Lordships, was evident from the observation made in paragraph-23 of the decision rendered in a case of P.S. Rajya’s case which reads as under:

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“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 can not 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.”

¶158

Thereupon, it was held that that the standard of proof in a departmental proceeding is lower than that of criminal prosecution. But at the same time, it is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of evidence in the departmental proceeding or the report of the enquiry officer based on those evidences. Thereupon, Their Lordships came to the conclusion that exoneration in the departmental proceeding ipso facto would not lead to exoneration or acquittal in criminal case.

¶159

On the basis of discussion made hereinabove, this Court is of the considered view that no consideration can be given to quash the order taking cognizance or entire criminal proceeding on the

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ground of exoneration in the departmental proceeding for the following reasons:

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(i) Exoneration in the departmental proceeding ipso facto would not lead to exoneration or acquittal in criminal case.

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(ii) The question of taking the ground of exoneration in the departmental proceeding for the purpose of quashing the judicial proceeding as has been considered by the Hon'ble Apex Court in the case of P.S. Rajya vs State of Bihar (supra), this Court has found from its consideration that the said judgment was delivered in the peculiar facts of the case and as such, the same is not applicable in the facts of the present case.

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(iii) The day when the cognizance was taken, the departmental proceeding was pending and the Court who has taken the cognizance has based its consideration by applying its judicial mind as per the document available in the case diary which led the order taking cognizance to have a prima facie case of accusation against the petitioner and as such, the cognizance has been taken under Sections 120(B)/420/467/468/471 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act.

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(iv) The principle of exoneration in the departmental proceeding in the present facts of the case will not be applicable since in addition to the penal provision under the Prevention of Corruption Act and the Indian Penal Code, the Section

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120(B) has also been inserted making accusation against the petitioner of allegation of conspiracy and the course which is to be taken in the matter of departmental proceeding is that the charge is not to be framed on the basis of the allegation of conspiracy but the charge is to be framed on the ground of misconduct in discharge of official duty.

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(v) The petitioner since has been alleged to have committed offence under Section 120(B) of IPC and as such, exoneration in the departmental proceeding on the issue of accusation of conspiracy in the judicial proceeding will not be applicable.

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(vi) In the judicial proceeding, if the accusation is also under Section 120(B) of IPC then certainly the trial is to be commenced for the purpose of proving or disproving the charge particularly to consider the accusation of conspiracy which ultimately is not possible to be there in the departmental proceeding.

¶174

Further, the instant petition has been filed under Section 482 of Cr.P.C. questioning the order taking cognizance dated 21.04.2006 and the day when the court took cognizance, a departmental proceeding was pending and as such, the same was not before the concerned court and it cannot be there at the time of taking cognizance in view of the principle that the Court is to take cognizance on the basis of material available as has been surfaced

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in course of investigation as per the case diary based upon that the

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charge-sheet has been submitted.

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The exoneration in the departmental proceeding can only be said to be a foreign document at the stage of taking cognizance which cannot be permitted to be considered by the Court who is to take cognizance, since the same is foreign to the material which has been collected by the investigating officer in course of investigation.

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