IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. M.P. No.534 of 2008
Rajendra Pandey-- -- -- -- -- -- --- -- --Petitioner
Versus
1. The State of Jharkhand
2. Shatrughan Pathak-- -- -- -- -- -- -- -- --Opposite Parties
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate &
Mr. Satya Prakash Sinha, Advocate
For the State : Mrs. Nitu Sinha, A.P.P.
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Reserved on: 5-5-2011 Pronounced on: 07 - 07-2011
D.K. Sinha, J. The petitioner has invoked the inherent power of this Court for
quashment of his entire criminal proceeding and the First Information
Report (FIR) with respect to Khunti P.S. Case No. 83/2006, corresponding
to G.R. No.412/2006 for the alleged offence under Sections 409, 420 and
120(B) of the Indian Penal Code, pending before the Additional Chief
Judicial Magistrate, Khunti.
2. Prosecution story in short was that Shri Shatrughan Pathak,
the Deputy Director, Welfare, South Chotanagpur Division, Ranchi,
presented a written report before the officer-in-charge of Khunti police
station narrating therein that the Tribal Welfare Commissioner, Ranchi
conducted spot inspection on 31.1.2006 of the various projects being
Project Nos. 15/2005-06, 10/2005-06, 8/2005-06, 7/2005-06, 6/2005-06
and 1/2005-06 under Khunti MESO Area and reported that the agent of
the projects Shri Rajendra Pandey, Junior Engineer, MESO Area, Khunti
i.e. the petitioner herein, had withdrawn advance of Rs.7500/- in each of
the projects on 5.4.2005 and without doing measurement of the work
done, again withdrew the second instalment of Rs.60,000/-, Rs.70,000/-
and Rs.80,000/- in one or other projects. It was further alleged in the
written report that as per inquiry report, about Rs.30,000/- to Rs.40,000/-
were embezzled in each of the six projects, referred to above and
accordingly, under the instruction of the Secretary, Welfare Department,
Government of Jharkhand, FIR was directed to be lodged against the
petitioner Rajendra Pandey, Junior Engineer for legal action.
3. Learned senior counsel Mr. P.P.N. Roy, at the outset,
submitted that for the same charge, a departmental proceeding was
initiated against the petitioner and after inquiry, a report was submitted to
the Government and the Government after having been satisfied with the
report of the inquiry officer, exonerated the petitioner from all the charges,
which were levelled against him by the order dated 17.3.2008 with the
copy of the said order forwarded to the petitioner vide memo No.722 dated
17.3.2008
(Annexure-2) on the basis of which he was promoted to the
post of Assistant Engineer, Irrigation Department, Government of
Jharkhand, Ranchi.
4. Mr. Roy, the learned senior counsel, further explained with
reference to Annexure-2 of the petition, referred to hereinabove, that as
many as four charges were framed against the petitioner Rajendra
Pandey in the departmental proceeding, almost with the similar allegation
that was made in the FIR, but the inquiry report indicated that none of the
charges could be established against him and therefore, the Deputy
Secretary of the Government of Jharkhand under the instruction of the
Government observed that after scrutiny of the entire allegations and the
charges levelled against the petitioner , the charges were found not
proved and hence, he was exonerated from all the charges.
5. The learned senior counsel explained that an identical issue
came up for consideration before the Supreme Court in P.S. Rajya versus
State of Bihar, reported in 1996 Supreme Court Cases (Cri) 897, wherein
the Apex Court observed,
“At the outset we may point out that the learned
counsel for the respondent could not but accept the position
that the standard of proof required to establish the guilt in a
criminal case is far higher than the standard of proof required to
establish the guilt in the departmental proceedings. He also
accepted that in the present case, the charge in the
departmental proceedings and in the criminal proceedings is
one and the same. He did not dispute the findings rendered in
the departmental proceedings and the ultimate result of it. On
these premises, if we proceed further then there is no difficulty
in accepting the case of the appellant. For if the charge which is
identical could not be established in a departmental
proceedings and in view of the admitted discrepancies in the
reports submitted by the valuers one wonders what is there
further to proceed against the appellant in criminal
proceedings.”
The Apex Court further observed,
“At the risk of repetition, we may state that the
charge had not been proved and on that basis the appellant
was cleared of departmental enquiry. In this connection, we
may also usefully cite a decision of this Court in State of
Haryana v. Bhajan Lal. This Court after considering almost all
earlier decisions has given guidelines relating to the exercise of
the extraordinary power under Article 226 of the Constitution or
the inherent powers under Section 482 of the Code of Criminal
Procedure for quashing an FIR or a complaint. This Court
observed as follows: (SCC pp. 378-79, paras 102-3)
“In the backdrop of the interpretation of
the various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in
the first information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the
first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or complaint and the
evidence collected in support of the same do not
disclose the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the
FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an
order of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in
the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient
ground for proceedings against the accused.
(6) Where there is an express legal
bar engrafted in any of the provisions of the Code or
the Act concerned (under which a criminal proceeding
is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision
in the Code or the Act concerned, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge.
We also give a note of caution to the
effect that the power of quashing a criminal proceeding
should be exercised very sparingly and with circumspection
and that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court to
act according to its whim or caprice.”
6. A counter-affidavit has been filed on behalf of the State-
opposite party contending, inter alia, that during course of investigation, it
could be gathered that most of the work was done through machine
instead of manual labour and in this regard, a letter was sent to the
Special Secretary, Tribal Welfare Department, Government of Jharkhand
for sending the concerned file as required for verification but the required
file was never sent to the Investigating Officer and therefore, the
investigation was pending. State-opposite party admitted that the
petitioner herein was exonerated in the departmental proceeding but
investigation in criminal case was still pending against him and reliance
has been placed on the principle laid down in P.S. Rajya’s case (supra)
wherein it was observed that the standard of proof required to establish
the guilt in a criminal case is far higher than the standard of proof required
to establish the guilt in the departmental proceedings and hence, the
petitioner, who was the Junior Engineer, cannot be exonerated from his
criminal liability.
7. I find that the State-opposite party has not completed the
observation, which has been made by the Apex Court in P.S. Rajya’s case
(supra) wherein the part of the observation referred to in the counter
affidavit was completed with further observation, “the charge in the
departmental proceedings and in the criminal proceedings is one and the
same. He did not dispute the findings rendered in the departmental
proceedings and the ultimate result of it. On these premises, if we proceed
further then there is no difficulty in accepting the case of the appellant. For
if the charge which is identical could not be established in a departmental
proceedings and in view of the admitted discrepancies in the reports
submitted by the valuers one wonders what is there further to proceed
against the appellant in criminal proceedings.”
8. I find that the State-opposite party has admitted that the
petitioner, the then Junior Engineer has been exonerated from all the four
charges, which were framed against him during his departmental
proceeding, which were of much relevance of the offences alleged in the
FIR. I find that the petitioner has been promoted to the post of Assistant
Engineer in the Irrigation Department of the Government of Jharkhand and
thereby, he has attained the higher post of a public servant. Relying upon
the P.S. Rajya’s case (supra) and following the principles laid down
therein, I find that the criminal proceeding of the petitioner Rajendra
Pandey would tantamount to misuse of the process of the Court.
9. For the reasons discussed above, this petition is allowed and
the criminal proceedings of the petitioner Rajendra Pandey, arising out of
Khunti P.S. Case No. 83/2006, corresponding to G.R. No.412/2006
including the FIR is quashed.
(D.K. Sinha, J.)
S.B./A.F.R.