Criminal Misc. No. M-25757 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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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.
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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
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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
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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
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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
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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
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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
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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,
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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
