Kartar Singh vs State Of Punjab on 20 August, 2009

Punjab-Haryana High Court
Kartar Singh vs State Of Punjab on 20 August, 2009
Criminal Misc. No. M-25757 of 2008 (O&M)                         -1-

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH
                         ****
                            Criminal Misc. No. M-25757 of 2008 (O&M)
                                     Date of Decision:20.8.2009

Kartar Singh
                                                           .....Petitioner
            Vs.

State of Punjab
                                                           .....Respondent


CORAM:- HON'BLE MR. JUSTICE HARBANS LAL

Present:-   Mr. A.S. Kalra, Advocate for the petitioner.

            Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
                         ****
JUDGMENT

HARBANS LAL, J.

This petition has been moved by Kartar Singh under Section

482 of Cr.P.C for quashing of FIR Annexure P.1 bearing No.32 dated

24.5.1996 registered under Sections 13(1) C read with Sections 7, 13(2) of

Prevention of Corruption Act, 1988 (hereinafter to be referred as `the Act’),

409, 465, 466, 471, 120-B of IPC at Police Station Vigilance Bureau,

Patiala as also the proceedings including the charge order/ charge-sheets

Annexures P2, P3, P3/A P3/B and P3/C passed by the learned Special

Judge, Ludhiana on the ground that the petitioner has been exonerated of

the charges against him in the departmental inquiry conducted by District

Development and Panchayat Officer, Sangrur and approved by Divisional

Deputy Director Rural Development and Panchayats, Patiala vide his order

dated 21.12.2001 Annexure P.4.

In the reply filed by the respondent- State, it has been inter-alia

pleaded that in fact the petitioner while working as Panchayat Secretary for
Criminal Misc. No. M-25757 of 2008 (O&M) -2-

the areas of Village Bonkar Gujran, Dholewal, Machhiyan Khurd and

Jhugian Kader falling in Mangat Block had received the grant of

Rs.50,000/- for Gram Panchayat Bonkar Gujran, Rs.1,25,000/- for

Dholewal, Rs.1,90,000/- for Machhiyan Khurd and Rs.80,000/- for Jhugian

Kader in connection with levelling of land under Jawahar Rozgar Yojna to

be carried out in District Ludhiana. The said amount was utilised in a bogus

way by him. The expenditure was shown in writing for levelling the

panchayat land but such work has not been found to have been done or that

if done was very little at some places. Under the said scheme, the amount

received was misappropriated by preparing forged record with bad intention

in connivance with the officers/ employees. After getting information from

some reliable sources, the matter was investigated and the FIR in question

was registered. The challan was presented in the Court in the year 2000.

During the inquiry of this case, 30 witnesses gave statement that no work of

levelling the land was done. The payments were also withdrawn from the

bank by the accused personally and no payment was made through cheque

though it is mandatory in a Government grant. Labourers shown to have

been paid were also fake. Muster rolls have also been forged. The trial

Court has framed the charges in May, 2002. The case is pending in the

Court of learned Additional Sessions Judge, Ludhiana for adjudication.

Now the petitioner after 12 years of registration of the said case, has filed

this petition on false grounds. Indeed, the petitioner did not use the amount

of grant for the purpose it was issued. The Department conducted the

inquiry after registration of the case and report was submitted in the year

2001, i..e, after five years of registration of the case. During this long

period, the facts can be manipulated and defaults can be rectified. The
Criminal Misc. No. M-25757 of 2008 (O&M) -3-

persons named in preliminary submissions, in their statements have stated

before the Investigating Officer that the funds were misappropriated by the

petitioner and his co-accused. Moreover, the departmental inquiries are no

ground to quash the FIR. The matter was only relating to the

misappropriation of funds by the petitioner by not utilising the same for the

purpose, these were granted. The Department took 5 years for concluding

the inquiry. Lastly, it has been prayed that this petition may be dismissed.

I have heard the learned counsel for the parties, besides

perusing the record with due care and circumspection.

Learned counsel for the petitioner submitted with full force that

the Inquiry Officer after giving full opportunity to the parties arrived at the

conclusion that the petitioner did not embezzle any amount of the grant

given to the Gram Panchayat of Bonkar Gujran, Dholewal, Machhiyan

Khurd and Jhugian Kader. That the Divisional Deputy Director considered

the findings of the Inquiry Officer very minutely and came to the conclusion

that the petitioner has been rightly found innocent by the Inquiry Officer

and no misappropriation by the petitioner of any government grant was

found to have taken place. Thus, the petitioner having been exonerated

during inquiry, the FIR in question as well as the subsequent proceedings

are liable to be quashed. He further puts that the F.I.R qua the co-accused

Davinder Singh has been quashed by this Court vide order dated 20.1.2006

Annexure P5. To buttress this stance, he has sought to place abundant

reliance upon the observations rendered in re: V.B. Raikar v. State by

Karnataka Lokayukta Police, Madikeri, Kodagu District, 2004(2)

Recent Criminal Reports (Criminal) 150, PS Rajya v. State of Bihar,

1996(3) Recent Criminal Reports (Criminal) 261 and Saran Singh Jaggi
Criminal Misc. No. M-25757 of 2008 (O&M) -4-

v. State of Punjab, 1995(1) Recent Criminal Reports (Criminal) 624.

As against this, the learned State Counsel reiterating the

averments enshrined in the reply urged that in view of the observations

rendered in re: Sat Pal Joshi v. State of Punjab, 2007(3) Recent Criminal

Reports (Criminal) 193, this petition is liable to be dismissed.

On giving a deep and thoughtful consideration to the rival

contentions, the view I am disposed to take is that the contentions raised by

learned counsel for the petitioner are unsustainable for the discussion to

follow hereunder:

It is apt to be borne in mind that the FIR came into being in

May, 1996. There is no gainsaying the fact that the Department had

conducted the inquiry after registration of the case. The report was

submitted in 2001, which is obviously after 5 years of registration of the

case. The possibility of manipulations or rectifications of defaults during

this interregnum cannot be ruled out. The core issue to be decided herein is

as to whether in the wake of exoneration of an employee during inquiry

proceedings, the FIR as well as subsequent proceedings can be quashed. Of

course, in the authorities relied upon by the learned counsel for the

petitioner, it has been held that if an accused is exonerated in departmental

proceedings and the charges in the departmental proceedings and the

criminal proceedings are one and the same, then nothing remains to be

proceeded against him in the criminal proceedings. These authorities and

the principles laid down therein are inapplicable to the facts of this case.

The powers of proceeding by the High Court under Section 482 of Cr.P.C

are very wide and the very plenitude of the power requires great caution in

its exercise. The inherent power should not be exercised to stifle a
Criminal Misc. No. M-25757 of 2008 (O&M) -5-

legitimate prosecution. It would not be proper for the High Court to analyse

the case of the complainant in the light of all probabilities in order to

determine whether a conviction would be sustainable and on such premises

arrive at a conclusion that the proceedings are to be quashed. It would be

erroneous to assess the material before it and conclude that the complaint

cannot be proceeded with as observed by the Supreme Court in State of

Orissa and another v. Saroj Kumar Sahoo, 2006(1) Recent Criminal

Reports (Criminal) 324. As per averments in the reply, during the inquiry

of this case, as many as 30 witnesses had given statements that no work of

levelling the land was done. The payments were also withdrawn from the

bank by the accused- petitioner personally and no payment was made

through cheque though it is mandatory in a Government grant. The

labourers shown to have been paid were also fake. Furthermore, bogus

muster rolls have been prepared. Vide order dated 8.5.2002 Annexure P.2,

the learned Special Judge, Ludhiana observed that “I am of the opinion that

there are sufficient grounds to frame a prima-facie charge against the

accused and accordingly a prima-facie charge under Sections 120-

B/409/467/471 of IPC and 13-(1)(d) read with Section 13(3) of the

Prevention of Corruption Act have been framed to which they did not plead

guilty and claimed trial.” Vide Annexures P3, P3/A, P3/B, P3/C, the

petitioner along with others has been charge-sheeted. It is the material

collected during the investigation and evidence led in Court, which decides

the fate of the accused person. During investigation, as noted supra, it was

found that the work for which the amount was withdrawn from the bank has

not been done. In re: Shyam Sunder Mathur v. State of Rajasthan, 1998

(4) Recent Criminal Reports (Criminal) 819, it has been held that “merely
Criminal Misc. No. M-25757 of 2008 (O&M) -6-

because the accused has been exonerated in the departmental inquiry is no

ground to discharge him in a criminal case registered under the Corruption

Act. The finding recorded in the departmental inquiry is not relevant under

Sections 40 and 42 of the Evidence Act and such evidence must be regarded

as irrelevant.” In the case at hand, as already noticed, the charge has been

framed against the petitioner on the basis of the material collected during

investigation. The same was submitted to the Court with the report under

Section 173 of the Code of Criminal Procedure.

In Annexure P.4, it has been observed by the Divisional Deputy

Director Rural Development and Panchayat, Patiala that “Therefore, I

understand that Sh. Kartar Singh Panchayat Secretary has performed his

duty as per rules and no fault of his has been established by the Sarpanches

of the concerned panchayats and enquiry officer (District Development and

Panchayat Officer, Sangrur). Therefore, it would not be proper to take any

action against Sh. Kartar Singh Panchayat Secretary. Therefore, keeping in

view no fault of Sh. Kartar Singh on the basis of record annexed with the

enquiry report bearing No.734 dated 25.5.2000 received from the

investigating officer (District Development and Panchayat Officer, Sangrur)

and statements of Sarpanches of Gram Panchayat Rattangarh, Bonkar

Gujran, Dholewal, Machhiyan Khurd and Jhugian Kader having appeared as

witnesses, regarding finding no fault, the complaint pending against Sh.

Kartar Singh Panchayat Secretary, Panchayat Samiti Ludhiana-2 is

consigned to the office.”

As observed by the Apex Court in re: Pankaj Kumar v. State

of Maharashtra & Others, 2008(4) Recent Criminal Reports 890 (S.C.)

“It would suffice to state that though the powers possessed by the High
Criminal Misc. No. M-25757 of 2008 (O&M) -7-

Courts under the said provisions are very wide, but these should be

exercised in appropriate cases, ex-debito justitiae to do real and substantial

justice for the administration of which alone the Courts exist. The inherent

powers do not confer an arbitrary jurisdiction on the High Court to act

according to whim or caprice. The powers have to be exercised sparingly,

with circumspection and in the rarest of rare cases where the Court is

convinced, on the basis of material on record, that allowing the proceedings

to continue would be an abuse of the process of Court or that the ends of

justice require that the proceedings ought to be quashed.” In the instant

case, the facts and circumstances enumerated hereinbefore, reflect that no

rarest of rare case for quashing is made out. The litmus test is that if the

FIR reveals the commission of crime and the prosecution is not barred by

law and continuance of the proceedings would not amount to abuse of

process of law, the FIR is not liable to be quashed. On applying this test, no

case is made out for quashing of the FIR Annexure P.1 as well as the charge

order/ charge sheets, Annexures P2, P3, P3/A, P3/B and P3/C.

Coming to Annexure P.5, order dated 20.1.2006 passed by this

Court in Criminal Revision No.454 of 2003 – Devinder Singh v. State of

Punjab, a glance through the same would reveal that Devinder Singh had

posed a challenge to the order dated 8.5.2002 of Special Judge, Ludhiana. It

has been observed in Annexure P5 that, “However, from the sanction

granted by Director Panchayat Punjab, Chandigarh for prosecution of

Devinder Singh, it would come out that this fact was never considered by

the Director who appears to have given sanction just at the instance of

Vigilance Bureau and after going through their file.” In the present one, the

sanction accorded for prosecution is not under challenge. Thus, in my view,
Criminal Misc. No. M-25757 of 2008 (O&M) -8-

the facts of Devinder Singh’s case can be hardly equated with the one in

hand.

As a sequel of the above discussion, this petition stands

dismissed.

Disposed of accordingly.

August 20, 2009                                ( HARBANS LAL )
renu                                                JUDGE

Whether to be referred to the Reporter? Yes/No
 

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