JUDGMENT
M.F. Saldanha, J.
1. This criminal reference arises pursuant to an order dated 29-10-2001 passed by the learned single Judge of this Court, wherein, he has referred the point of law to the Division Bench in the following circumstances. As far as the facts are concerned, it was alleged that on 9-12-1990 at about 4 p.m. the Inspector of Excise, DEIB, Bangalore, was on patrol duty and he received information that I.D. Liquor was loaded in an Ambassador Car bearing Registration N. MEQ 8699 at Bylanarasapura village, and that the same was being transported to Bangalore. The Officer sought the assistance of two panchas and kept a close watch whereupon at about 4.30 p.m. the Ambassador Car came hear Sandi Maidana, Hoskote, the Car was stopped and the contraband was found in the car and the occupants failed to produce any valid licence or permit for transporting the contraband. The occupants of the car were arrested and the car along with the contraband was seized. A charge-sheet was filed in Criminal Case No. 226/1992 on the file of the Munsiff and JMFC at Hoskote ernment as there were reasonable grounds to believe that an excise offence has been committed, insofar as it was involved in transporting of liquor. The accused took up the contention that the car was parked near the market at Hoskote as it had developed engine trouble and secondly, that there was nothing inside the car and the main contention taken up before the Criminal Court was that there was no material to establish any nexus between the accuse and the contraband. The Authorised Officer by his order dated 24-11-1993 recorded an adverse finding to the effect that the car was liable for confiscation.
2. We may mention here that the accused who is the petitioner before the High Court in Criminal Revision 203 of 1999 had taken up the principal legal defence that the departmental proceedings were subservient to the judicial proceedings and where the charges related to the same set of facts that the order of acquittal passed in the criminal proceedings binds the department and that no adverse order could result against the petitioner.
3. Against the order of the Authorised Officer, the petitioner preferred an appeal in Criminal Miscellaneous No. 8/1993 which was dismissed by the learned I Additional Rural District & Sessions Judge, Bangalore District on 15-3-1999 confirming the order of the Authorised Officer under Section 43(E) of the Karnataka Excise Act. Being aggrieved by this decision, the appellant therein filed Criminal Revision 203 of 1999 before this Court. When the petition came up for hearing reliance was sought to be placed on behalf of the petitioner on a decision of a learned single Judge of this Court in Authorised Officer and Deputy Conservator of Forest, Bagalkot v. Ramakrishnappa Kedarba Urnkar, 1997 Cri LJ 4695, though that case was in respect of an analogous provision under the Karnataka Forsest Act, 1964. It was a situation wherein two simultaneous proceedings, one a prosecution before the learned Magistrate for the commission of offence punishable under the Forest Act, and another for confiscation before the Authorised Officer, had been initiated. The criminal case had ended in an acquittal and in the light of this decision M. B. Vishwanath, J. (as he then was) held that since the accused were acquitted, it could not be said that the vehicle in question was used for the commission of any offence, and the vehicle therefore could not have been confiscated by the Authorised Officer. As against this decision, the learned Public Prosecutor relied on the decision of the Supreme Court in Divisional Forest Officer v. G. V. Sudhakar Rao, , which again was a case in respect of an analogous provision of the Andhra Pradesh Forest Act, 1967, but in respect of two separate surroundings i.e. the prosecution before the Magistrate and the departmental adjudication before the Authorised Officer. The Supreme Court held that the two proceedings being independent, that the decision in one would not bind the other. The learned single Judge, in view of the divergent views in these two decisions has referred the point of law to the Division Bench by way of these references for purposes of deciding the correct legal position. We may mention in passing that the second Revision Petition No. 453 of 1999 is a prosecution under the Karnataka Forest Act, where the contraband was the Sandalwood, but the controversy in that case is identical to the one in the first proceedings namely the question as to whether the decision of the criminal Court binds the Department in the adjudication.
4. The learned S.P.P. who has argued on behalf of State has submitted that the prosecution and the Departmental adjudication are two independent and separate proceedings and by their very nature, irrespective of what order is followed, the decision in one does not preclude an independent view being taken in the other one on merits and that therefore, one decision does not bind the other one. He has placed heavy reliance on the law laid down by the Supreme Court in , and he has submitted that this decision is still good law even though the Court in that case was concerned with the question of stay of the Departmental proceedings. The important legal submission canvassed by the learned SPP was that this position recognizes the total independence of the two proceedings and the complete bifurcation of jurisdiction. The learned Counsel went on to demonstrate to us from the compilation that was filed with the relevant provisions under the Karnataka Forest Act and the Karnataka Excise Act, relating to prosecutions and above all, relating to confiscation of vehicles that are involved in the transport of contraband are almost identical with the provisions of the Andhra Pradesh Forest Act, which was under confiscation before the Supreme Court and that the decision would squarely apply. The learned Counsel even pointed out to us that there may be situations in which an accused is acquitted on technical grounds because as far as criminal jurisprudence is concerned the Courts apply very rigorous standards of proof, there may be a situation in which the accused gets the benefit of doubt and the learned S.P.P. was not wrong when he submitted before us that there may be situations in which an accused is acquitted under unhappy circumstances such as where the evidence which ought to have been produced is not produced either out of negligence or out of rank corruption or situations in which witnesses who should be summoned and examined are not produced before the Court or even the extreme cases in which despite the prosecution doing a good job for reasons that one would prefer not to outline, an acquittal still results.
5. We take judicial notice of the submissions because this is a category of cases in which the stakes are high, the accused are invariably rich and powerful and in this background, the statistics have indicated that the acquittal rate is horrifying being in the high 90’s or in other words that the conviction rate is less than 5%. The question that arises is therefore, as to whether the order of acquittal, assuming for a variety of reasons it could indicate the default or it could indicate manipulation becomes final without an appeal being filed or despite an appeal being filed, the appeal has been sabotaged and it fails. The learned Counsel points out that in all of these instances if the contention raised is that the department must mechanically follow that order that it would be an absolute atrocity and that this was the principal reason why the Supreme Court has clarified the position of independence of proceedings.
6. On behalf of the respondent-accused the two learned Counsel advanced very elaborate and detailed submissions wherein over 150 decisions were cited before us, but we refrain from reproducing that entire head of argument for the simple reason that these submissions proceeded on the footing that the relevant Rules and Sections were ultra vires the Constitution and that they were in breach of principles of natural justice and that they were legally vulnerable. Though this is a Division Bench of the High Court there is no challenge to the constitutionality or the legal validity of the provisions of the relevant Acts and Rules before us and we proceed on the principles of law that there is a presumption of validity in respect of all, these and it is on that basis that we have refused to address ourselves to those questions. Learned Counsel even referred to the fact that some of the High Courts and the Supreme Court have admitted petitions challenging these very provisions but again, as long as the operation of these provisions has not been stayed merely because a challenge has been presented, would not justify our either assuming that there is anything wrong with any or all these provisions or going into that question because it is totally outside the scope of these references. We have therefore decided not to burden this judgment with those decisions though we have heard the learned Counsel in depth over the last for more than six months on different dates of hearing for the limited purposes of examining as to whether any of those principles would be relevant for the decision of these references.
7. We confine ourselves only to two decisions and , wherein the Supreme Court did have occasion to observe that the principles analogous to res judicata or in other words issue estoppel does apply to criminal cases also. This is the accepted position of law because even under Section 403, Cr. P.C. the Doctrine of Autrefois acquit postulates that a person who has been tried once on a particular charge irrespective of the result cannot be subjected to a trial once again on the same charge for the same set of facts. Here, the question is not as to whether the decision in one criminal case binds the subsequent criminal case or another criminal case but the short issue is as to whether the Departmental adjudication is bound by the verdict of the criminal Court in the same proceedings.
8. Respondents’ learned Counsel vehemently submitted that the old and well established argument that the criminal Court is after all a Judicial Forum, that it. commands higher respect when it comes to the aspect of credibility insofar as it is presided over by a Judicial Officer and is governed by well defined norms or procedure and that having regard to the most important aspect namely the higher caliber of a member of judiciary who presides over a Court as against the Departmental Officer who is conducting ah adjudication, that undoubtedly the verdict of the Court must be given a higher place of credibility and acceptability and if this is so, it must also bind the department while deciding other issues in the same case. Obviously, the arguments proceed on the footing that the accused is common, the case is one and the same, but the charges are bifurcated, the more serious one being sent to the Court and the remaining or lesser one placed before the departmental authority.
9. Again, what was submitted on behalf of the respondent and which argument again is undoubtedly a good one is that the burden of proof in a criminal proceeding is high, that the prosecution is conducted by a legally qualified mind namely the prosecutor, that witnesses are examined, documents are produced and that the quality of the proceedings is also of a higher caliber and that therefore, once a verdict emerges from such a proceeding that it must ipso facto govern the Departmental adjudication. Lastly, what was submitted before us was that in the adjudication proceedings even if the aspect of recording of evidence is taken up, that the procedure followed is a relatively loose and unrigorous one and in this background, that given a choice, the law must always lean in favour of the record and the decision in the judicial proceeding. It is on the basis of these and several other submissions that a strong plea was advanced that even though the Supreme Court has in the decision referred to by us held that two proceeding are independent and separate, that there is still scope to uphold the view of the learned single Judge of this Court, that the criminal proceedings bind the Departmental adjudication.
10. Before proceeding further, what we wish to point out is that even though the incident giving rise to the two sets of proceedings is common, that the nature of the two proceedings is different. We shall illustrate from the present two cases as to how this position cannot be overlooked, The issue before the criminal Court was as to whether the accused could be said to be in conscious possession of the contraband or in other words, if the material was found in the vehicle and was not on the person of the accused and if no nexus could be established between the accused and the contraband and criminal Court would on the basis of the law acquit the accused as the offence cannot be said to have been established. Again, if any of the vital ingredients in the chain of facts or circumstances was weak, was lacking or was absent or on the other hand if parts of the record contradict each other or again, if a vital ingredient was missing, the accused would still be acquitted possibly even by default. When it comes to the Departmental adjudication, what is required to be established is whether the contraband was found in the vehicle and having regard to the various presumptions under the statute an order of confiscation would be almost automatic. The nature of the charges, mode of proof and the degree of proof defer and consequently, it would be improper to equate the two proceedings or to even contend that the decision in the criminal proceedings must bind the Departmental adjudication.
11. Digressing here very slightly, we need to illustrate the most familiar example that arises before the Courts repeatedly in relation to disciplinary proceedings. In cases where an employee is prosecuted for an offence of misappropriation and the like and for a variety of reasons which we prefer not to recount, everyone of these cases ends in an acquittal, often times because the case is dragged on for so long by which time the witnesses have died, the I.O. has retired and the documents are untraceable. It would be a travesty of justice to hold that the acquittal order even if confirmed by the High Court, for want of adequate material to sustain a conviction would have to bind the Department in holding that the delinquent employee must be cleared of the disciplinary charges. It is open to the department to independently establish these charges and if they succeed in doing so, the consequences would follow regardless of the outcome of the criminal case. We need to therefore lay down very clearly that there is no principle of law which can justify the position that the decision in the criminal proceedings binds the Department. The most important reason for this is that even in the illustrations set out by us the sections and the charges in the departmental adjudication are entirely different to the ones levelled before the Court.
12. More importantly, what we need to emphasise is that merely because the decision of the criminal Court does not bind the departmental authorities, it does not mean to say that the decision is wholly and totally irrelevant. References are possible and permissible and in a given instance, it is certainly open to either of the parties be it the Department or the accused to refer to and rely on the decision of the Court but beyond having persuasive value, it can never be argued that the decision of the Court is binding on the department. In our considered view, the ratio of the decision in 1997 Cri LJ 4695 (Kant) is rather an extreme view which we do not approve of. The references are answered as above.
13. The office is now directed to place the two criminal revision petitions before the learned single Judge presiding over the Court hearing these revision petitions for disposal according to law in the light of the legal position as clarified in these references.
The two criminal references are accordingly disposed of.