Interim Order 13

Order Details: COPY OF ORDER
Pdf Text: C.C. No. 26/2021
FIR No. 50/2007
PS : ACB
State Vs Raj Kumar etc.
08.03.2022 (Physical Hearing)
: O R D E R :
1) This order shall dispose of three applications filed U/s 91 Cr.P.C. read with
section 165 of Evidence Act on behalf of accused persons namely Sunil Kumar,
Rajesh Kumar and Mannu Rana.
2) It has been stated on behalf of the accused Sunil Kumar that all the allegations
made by the complainant are frivolous and in contradiction with the evidence on
record. It is further stated that the accused Sunil Kumar was arrested on
30.11.2007 after the disclosure statement of accused Raj Kumar. It is further
stated that the accused Sunil Kumar has been exonerated in departmental inquiry,
vide report dated 21.02.2009, however, the said report is not part of the
chargesheet and the same is very crucial document for the adjudication of the
present matter and thus, prayed that the report of departmental enquiry dated
21.02.2009 may be called for the adjudication of the case.
3) It is stated on behalf of the accused Rajesh Kumar that the allegations made by
the complainant are frivolous. It is further stated that accused Rajesh Kumar was
arrested on 08.09.2008. It is further stated that accused Rajesh Kumar has been
exonerated in departmental inquiry, vide report dated 27.01.2022, however, the
said report is not part of the chargesheet and the same is very crucial document
for the adjudication of the present matter and thus, prayed that the report of
departmental enquiry dated 27.01.2022 may be called for the adjudication of the
case.
4) It is stated on behalf of the accused Mannu Rana that the allegations made by
the complainant are frivolous. It is further stated that accused Rajesh Kumar
surrendered on 25.09.2008 before the court of Sh. A.S. Yadav, Ld. Special Judge,
Tis Hazari Court. It is further stated that accused Mannu Rana has been
exonerated in departmental inquiry, vide report dated 27.01.2022, however, the
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said report is not part of the chargesheet and the same is very crucial document
for the adjudication of the present matter and thus, prayed that the report of
departmental enquiry dated 27.01.2022 may be called for the adjudication of the
case.
5) Ld. Counsel for accused Mannu Rana and Rajesh Kumar has relied upon (i)
Somari Devi & Ors. Vs Ragwar Singh & Ors., FAO No.884/2003, decided on
22.05.2009 by Hon’ble Delhi High Court and (ii) Special Police
Establishment Vs Umesh Tiwari & Anr., M.Cr.C. No. 60404/2021, decided
on 21.01.2022 by Hon’ble High Court of Madhya Pradesh.
6) I have heard Ld. Addl. PP for the State and Ld. Counsels for the accused persons
and also gone through the material placed on record.
7) Ld. counsels for the accused persons have argued that findings of departmental
proceedings are very relevant for the just decision of the case.
8) The question is that whether the report as well as the departmental findings are
relevant and whether the same should be summoned before the arguments on
charge. It is clear that IO had not collected the documents related to the
departmental proceedings during the investigation. Certainly if the IO would
have collected those documents and documents forms part of unrelied documents
then the IO could have been directed by the court to file them. However, the IO
has not collected those documents.
9) The next question is whether the court should ask the IO to place those
documents on record or whether the Court should summon the
documents/findings relating to departmental inquiry at this stage. Ld. Counsel
for the accused persons have also argued that if the record of the departmental
proceedings is placed on record, the accused persons are entitled for discharge
and charge cannot be framed against the accused persons.
10)In this regard, in Ashoo Surendranath Tewari's case, Hon'ble Supreme Court of
India observed that the appellant has been exonerated by the CVC in the
departmental proceedings and therefore, it observed that:
“............ 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
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same facts appear to be bleak. We, therefore, set aside the judgment of
the High Court and that of the Special Judge and discharge the appellant
from the offences under the Penal Code.”
11)Ld. Addl. PP for the state argued that the facts of the case mentioned by the
accused in case titled as Ashoo Surendranath Tewari Vs. The Dy.
Superintendent of Police, EOW, CBI & Anr., Crl. Appeal No.575 of 2020(SC)
are distinguishable from the facts of the present case as in the case of Ashoo
Surendranath Tewari, the department which had proposed the prosecution of
accused in criminal trial had itself exonerated the accused of the charges on the
same set of facts in the departmental proceedings.
12) As far as the exoneration in the departmental proceedings is concerned, it is a
settled law that merely because the departmental proceedings have culminated in
the favour of the accused, it would not result into discharge of the accused in the
criminal prosecution, in as much as the departmental proceedings and criminal
trial are two different proceedings and standard of proof in both i.e. departmental
proceedings and criminal trial are different. Both the departmental proceedings
and the criminal cases have to be decided only on the basis of evidence led in
the said case and the truthfulness of the evidence can be adjudicated only
after the evidence is led in the present case. The entire case of the prosecution
cannot be rejected only on the basis of evidence and findings in the departmental
proceedings. It is also a settled law that the findings in departmental enquiry are
not binding on the court.
13)Hon'ble Supreme Court of India in State of NCT of Delhi vs Ajay Kumar Tyagi
in Crl. Appeal No. 1334 of 2012 (SLP (Crl.) No. 1383 of 2010) observed as
under :
“…..The facts of the case are that the respondent has been accused of
taking bribe and was caught in a trap case. We are not going into the
merits of the dispute. However, it seems that there are two conflicting
judgments of two Judge Benches of this Court: (I) P.S. Rajya vs State of
Bihar reported in (1996) 9 SCC 1, in which a two Judge Bench held that
if a person is exonerated in a departmental proceeding, no criminal
proceedings can be launched or may continue against him on the same
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subject matter (ii) Kishan Singh Through Lrs vs Gurpal Singh & Others
2010(8) SCALE 205, where another two Judge Bench has taken a
contrary view. We are inclined to agree with the latter view since a crime
is an offence against the State. A criminal case is tried by a Judge who is
trained in law, while departmental proceeding is usually held by an
officer of the department who may be untrained in law. However, we are
not expressing any final opinion in the matter.
“….In view of these conflicting judgments, we are of the opinion that the
matter has to be considered by a larger Bench. This is how the matter is
before us.”
“.... Now we proceed to consider the question of law referred to us , i.e. ,
whether the prosecution against an accused, notwithstanding his
exoneration on the identical charge in the departmental proceeding
could continue or not; Mr. Sharma, with vehemence, points out that this
question has been settled and set at rest by this Court in the case of P.S.
Rajya (supra), which has held the field since 1996, hence at such a
distance of time, it is inexpedient to reconsider its ratio and upset the
same. Mr. Attry, however, submits that this Court in the aforesaid case
has nowhere held that exoneration in the departmental proceeding would
ipso facts terminate the criminal proceeding.
“.... The above discussion is sufficient to allow this appeal on the facts of
this case. Even at the cost of repetition, we hasten to add none of the
heads in the case of P.S. Rajya (Supra) is in relation to the effect of
exoneration in the departmental proceedings on criminal prosecution on
identical charge. The decision in the case of P.S. Rajya (Supra),
therefore does not lay down any proposition that on exoneration of an
employee in the departmental proceedings, the criminal prosecution on
the identical charge or the evidence has to be quashed. It is well settled
that the decision is an authority for what it actually decided and not
what flows from it. Mere fact that in P.S. Rajya (Supra), this Court
quashed the prosecution when the accused was exonerated in the
departmental proceeding would not mean that it was quashed on that
ground. This would be evident from paragraph 23 of the judgment, which
reads as follows:
“.... Even though all these facts including the Report of the Central
Vigilance commission were brought to the notice of the High Court,
unfortunately, the High Court took a view that the issues raised had to be
gone into in the final proceedings and the Report of the Central Vigilance
Commission, exonerating the appellant of the same charge in
departmental proceedings would not conclude the criminal case against
the appellant. We have already held that for the reasons given, on the
peculiar facts of this case, the criminal proceedings initiated against the
appellant cannot be pursued. Therefore, we do not agree with the view
taken by the High Court as stated above. These are the reasons for our
order dated 27.03.1996 for allowing the appeal and quashing the
impugned criminal proceedings and giving consequential reliefs.
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(underlining ours) From the reading of the aforesaid passage of the
judgment it is evidence that the prosecution was not terminated on the
ground of exoneration in the departmental proceedings but, on its
peculiar facts.
“.... In fact, there are precedents, to which we have referred to above
speak eloquently a contrary view i.e. exoneration in departmental
proceeding ipso facto would not lead to exoneration or acquittal in a
criminal case. On principle also, this view commends us. It is well
settled that the standard of proof in department proceeding is lower than
that of criminal prosecution. 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 can not be rejected on the
basis of the evidence in the departmental proceeding or the report of the
Inquiry officer based on those evidence.
“....We are, therefore, of the opinion that the exoneration in the
departmental proceeding ipso facts would not result into the quashing
of the criminal prosecution....”
14)The above judgment of Hon'ble Supreme Court of India is a Division bench
decision (three judges) and the decision in Ashoo Surendranath Tewari's case is
also a division bench (three judges) decision. As both the judgments are of DB,
as per the law of precedents, the judgement prior in time shall have a binding
effect and hence, the judgement/law as laid down in Ajay Kumar Tyagi case shall
prevail and is binding on the present court. Also, the facts in Ashoo
Surenderanath Tewari's case are different from the facts in the present case in as
much as in Ashoo Surendranath Tewari's case, the department itself was the
complainant in the criminal case initiated against the accused and the department
which had proposed the prosecution of the accused had itself exonerated the
accused in the departmental proceedings. However, the present case is a trap case.
15) Also, the chargesheet in the present case has been filed on 15.06.2021and
thefore, the departmental enquiry report dated 27.01.2022 which has been
finalized after the filing of the chargesheet could not have been made part of the
chargesheet. Therefore, the accused persons are not entitled to be discharged on
the ground that they have been exonerated in the departmental proceedings.
However, the accused persons are at liberty to place reliance on the documents of
departmental proceedings at the time of defence evidence. All the three
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applications of the accused persons U/s 91 Cr.P.C. read with section 165 Cr.P.C.
are thus, dismissed with liberty to the accused persons to summon the record
of departmental enquiry at the time of Defence Evidence.
Announced in the open court
on 08th March 2022.
(Kiran Bansal)
Special Judge, PC Act (ACB01)
RADC, New Delhi.
08.03.2022
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