Jharkhand High Court
Dr. Brajendra Kumar Tiwary @ Dr. B.K. … vs The State Of Jharkhand Through Cbi on 13 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:15448
2019:JHHC:40019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1272 of 2008
---------
Dr. Brajendra Kumar Tiwary @ Dr. B.K. Tewary son of late
Srishtidhar Tewary working in the capacity of Scientist ‘F’ (Deputy
Director) and Head/co-ordinator, Environment Management Group
(EMG) at Central Mining Research Institute (CMRI) Dhanbad under
council of Scientific & Industrial Research ‘CSIR’ New Delhi
presently residing at CMRI Qr No. Type V-/10 CMRI Colony,
Dhanbad, P.S.-CMRS, P.S. + Dist.-Dhanbad.
… … Petitioner
Versus
1. The State of Jharkhand through CBI.
2. Sri P. Ananta Krisnan CBO, CSIR, New Delhi. Son of K. Pakchi
Rajan, posted as Chief Vigilance Officer, Council of Scientific +
Industrial Research Anusandhan Bhawan, 2 Rafi Marg, New Delhi.
… … Opp. Parties
———
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
———-
For the Petitioner : Mr. Mahesh Tewari, Advocate
For the O.P.-CBI : Mr. Deepak Kr. Bharti, Advocate
For the O.P. No.2 : Mr. Abhay Prakash, Advocate
———–
th
C.A.V. on 09 May, 2025 Pronounced on 13/06/2025
Prayer:
1. The instant petition has been filed under Section 482 of the Code
of Criminal Procedure for the following relief(s):
“That in the instant case the petitioner prays for quashing of the
entire criminal case being RC Case No.1(A)/03(D) including
order taking cognizance dated 21.04.2006 wherein cogninzance
of the offences under section 120(B)/420 of IPC and u/s 467, 468,
471 IPC and u/s 13(2) read with section 13(1)(d) of Prevention of
Corruption Act 1988 has been taken as against the present
petitioner in connection with RC Case no.1(A)/2003(D) presently
pending in the court of learned Spl. Judge, CBI-cum-Additional
District Judge VIIIth at Dhanbad. ”
Factual Matrix:
2. The brief facts of the case leading to filing of the present petition
requires to be enumerated herein, as under:
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3. The FIR was registered on 27.01.2003 by the CBI Dhanbad
against the complaint letter no.15(48)/91 viz. dated 23.01.2003 of
Shri P. Ananth Krishnan, CVO, CSIR, Delhi against Dr. T.N.
Singh and others who all are scientists/Ex-Scientists or officials of
CMRI, Dhanbad, wherein it was alleged that there had been a
massive mulching of CSIR Funds by the aforesaid officials of
CMRI during April 1999 to June 1999 in connection with
purchase of various scientific items/equipment. It has been further
alleged in the FIR that during the period of April 1999 to June
1999 accused officials of CMRI Dhanbad in connivance with
some general order supplier firms caused purchase of scientific
equipment items of highly inflated rates on limited Tender basis
wither by splitting the requirement or by keeping the estimated
cost within Rs.2.00 lakhs which is the ceiling for limited tendering
and thus, caused wrongful loss of Rs.50 lacs (fifty lakhs) only
approx. to CMRI Dhanbad in Labourator of CSIR and
corresponding wrongful gain to themselves.
4. Based on the aforesaid allegation RC Case no.1(A)/2003(D) was
instituted.
5. After conducting investigation, charge sheet has been submitted
against the petitioner under Sections 120(B)/420/467/468/471 of
IPC and Section 13(2) read with Section 13(1)(d) of Prevention of
Corruption Act.
6. On the basis of the charge-sheet, cognizance of the offences under
Sections 120(B)/420/467/468/471 of IPC and Section 13(2) read
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with Section 13(1)(d) of Prevention of Corruption Act has been
taken as against the petitioner.
7. The present petition has filed under Section 482 Criminal
Procedure Code for quashing of the entire criminal case being RC
Case No.1(A)/03(D) including order taking cognizance dated
21.04.2006 wherein cogninzance of the offences under section
120(B)/420 of IPC and u/s 467, 468, 471 IPC and u/s 13(2) read
with section 13(1)(d) of Prevention of Corruption Act 1988 has
been taken as against the present petitioner.
Argument on behalf of the learned counsel for the petitioner:
8. Learned counsel for the petitioner has taken the sole ground for
quashing the entire criminal case being R.C. Case No.1(A)/03(D)
including order taking cognizance dated 21.04.2006 on the basis
of exoneration in the departmental proceeding and in support
thereof, reliance has been placed upon the judgment rendered by
the Hon’ble Apex Court in P.S. Rajya vs. State of Bihar, (1996) 9
SCC 1.
9. It has further been submitted that on similar allegations of
purchasing of chemicals by local tender and splitting of the
indents, exactly of the same period i.e., April to June, 1999, CBI
on their source registered a separate case, which was registered as
RC Case No 16(A)/2003 (D against the petitioner and others.
Upon investigation, the CBI did not find any culpability on the
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part of any of the accused persons and thus finding no evidence
and culpability of criminality, closed the case.
10. Learned counsel for the petitioner, on the aforesaid premise, has
submitted that the present petition is fit to be allowed.
Argument on behalf of the learned counsel for the Opp. parties:
11. Learned counsel for the opp. parties has contended that merely
exoneration in the departmental proceeding cannot be a ground for
quashing the entire criminal proceeding.
12. It has further been submitted that though the allegations were there
in R.C. Case No.16(A) of 2003(D) that all the accused persons in
connivance with each other and also the supplier did purchase the
materials at highly inflated rate on limited tender basis either by
splitting the requirement or by keeping the estimated cost within
Rs.2 lakh but no element of criminality was found during
investigation but here in the instant case, element of the
criminality was found on the part of the accused persons including
the present petitioner as it has been found in course of
investigation of R.C. Case No.1(A) of 2003(D)that equipment
which were purchased were of sub-standard and that certain items
were purchased even without requirement and that accused
supplier has paid illegal gratification to some of the accused public
servants and that procedure relating to purchase was completely
ignored, as a result of which huge loss was caused to the CMRI,
Dhanbad.
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13. It has further been submitted that any finding recorded by the
disciplinary authority even if it is there as in the case of the
petitioner, it will hardly affect the criminal case which gets
decided on the basis of material collected during investigation and
therefore, any finding recorded by the disciplinary will have no
bearing upon the criminal case. Learned counsel in order to
buttress this limb of argument has put his reliance on the judgment
rendered by the Hon’ble Apex Court in the case of Supriya Jain v.
State of Haryana, (2023) 7 SCC 711 (para 17) and Iveco
Magirus Brandschutztechnik GMBH v. Nirmal Kishore
Bhartiya, (2024) 2 SCC 86 (para 71).
14. Learned counsel for the opp. parties, on the aforesaid premise, has
submitted that the present petition, therefore, is not fit to be
allowed.
Analysis:
15. This Court has heard the rival submissions advanced on behalf of
the learned counsel for the parties and perused the entire material
available on record.
16. Before adverting into facts of the instant case it will be profitable
to discuss herein the ambit and scope of inherent jurisdiction of
the Court under Section 482 Cr.P.C.
17. The powers under Section 482 Cr.P.C. are the exception and not
the rule. Under this section, the High Court has inherent powers to
make such orders as may be necessary to give effect to any order
under the Code or to prevent the abuse of process of any court or
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otherwise to secure the ends of justice. But the expressions “abuse
of process of law” or “to secure the ends of justice” do not confer
unlimited jurisdiction on the High Court and the alleged abuse of
process of law or the ends of justice could only be secured in
accordance with law, including procedural law and not otherwise.
Reference in this regard may be taken from the judgment as
rendered by the Hon’ble Apex Court in the case of Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191.
18. It is settled proposition of law that to invoke its inherent
jurisdiction under Section 482 CrPC the High Court has to be fully
satisfied that the material produced by the accused is such that
would lead to the conclusion that his/their defence is based on
sound, reasonable, and indubitable facts; the material produced is
such as would rule out and displace the assertions contained in the
charges levelled against the accused; and the material produced is
such as would clearly reject and overrule the veracity of the
allegations contained in the accusations levelled by the
prosecution/complainant. Reference in this regard may be taken by
the judgment rendered by the Hon’ble Apex Court in the case of
Rajiv Thapar and Others v. Madan Lal Kapoor [(2013) 3 SCC
330] which reads as under:
“29. The issue being examined in the instant case is the
jurisdiction of the High Court under Section 482 CrPC, if it
chooses to quash the initiation of the prosecution against an
accused at the stage of issuing process, or at the stage of
committal, or even at the stage of framing of charges. These are
all stages before the commencement of the actual trial. The
same parameters would naturally be available for later stages6 Cr.M.P. No. 1272 of 2008
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as well. The power vested in the High Court under Section 482
CrPC, at the stages referred to hereinabove, would have far-
reaching consequences inasmuch as it would negate the
prosecution’s/complainant’s case without allowing the
prosecution/complainant to lead evidence. Such a determination
must always be rendered with caution, care and circumspection.
To invoke its inherent jurisdiction under Section 482 CrPC the
High Court has to be fully satisfied that the material produced
by the accused is such that would lead to the conclusion that
his/their defence is based on sound, reasonable, and indubitable
facts; the material produced is such as would rule out and
displace the assertions contained in the charges levelled against
the accused; and the material produced is such as would clearly
reject and overrule the veracity of the allegations contained in
the accusations levelled by the prosecution/complainant. It
should be sufficient to rule out, reject and discard the
accusations levelled by the prosecution/complainant, without the
necessity of recording any evidence. For this the material relied
upon by the defence should not have been refuted, or
alternatively, cannot be justifiably refuted, being material of
sterling and impeccable quality. The material relied upon by the
accused should be such as would persuade a reasonable person
to dismiss and condemn the actual basis of the accusations as
false. In such a situation, the judicial conscience of the High
Court would persuade it to exercise its power under Section 482
CrPC to quash such criminal proceedings, for that would
prevent abuse of process of the court, and secure the ends of
justice.”
19. In State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568]
the powers of the High Court under Section 482, Cr. P.C. and
Article 226 of the Constitution of India were highlighted and the
Hon’ble Apex Court observed that:
“29. Regarding the argument of the accused having to face the
trial despite being in a position to produce material of
unimpeachable character of sterling quality, the width of the
powers of the High Court under Section 482 of the Code and
Article 226 of the Constitution is unlimited whereunder in the7 Cr.M.P. No. 1272 of 2008
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interests of justice the High Court can make such orders as may
be necessary to prevent abuse of the process of any court or
otherwise to secure the ends of justice within the parameters
laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426].”
20. In Rukmini Narvekar v. Vijaya Satardekar [(2008) 14 SCC 1],
the Hon’ble Apex Court has observed that the width of the powers
of the High Court under Section 482, Cr. P.C. and under Article
226 of the Constitution of India are unlimited, that the High Court
could make such orders as may be necessary to prevent abuse of
the process of any Court or otherwise to secure the ends of justice.
In a concurring order passed in the very same case, it was
observed in addition that in exercising jurisdiction under Section
482, Cr. P.C., the High Court is free to consider even material that
may be produced on behalf of the accused to arrive at a decision
whether charge as framed could be maintained.
21. In Anand Kumar Mohatta v. State (NCT of Delhi), Department
of Home [(2019) 11 SCC 706], referring to the provisions of
Section 482, Cr. P.C., the Hon’ble Apex Court held as follows:
16. There is nothing in the words of this section which restricts
the exercise of the power of the Court to prevent the abuse of
process of court or miscarriage of justice only to the stage of the
FIR. It is settled principle of law that the High Court can
exercise jurisdiction under Section 482 CrPC even when the
discharge application is pending with the trial court [G. Sagar
Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC
(Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591,
para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237].
Indeed, it would be a travesty to hold that proceedings initiated
against a person can be interfered with at the stage of FIR but
not if it has advanced and the allegations have materialised into
a charge-sheet. On the contrary it could be said that the abuse
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of process caused by FIR stands aggravated if the FIR has taken
the form of a charge-sheet after investigation. The power is
undoubtedly conferred to prevent abuse of process of power of
any court.”
22. Thus, it is settled position in the exercise of this wholesome
power, the High Court is entitled to quash a proceeding if it comes
to the conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends of justice
require that the proceeding ought to be quashed. The saving of the
High Court’s inherent powers, both in civil and criminal matters, is
designed to achieve a salutary public purpose which is that a court
proceeding ought not to be permitted to degenerate into a weapon
of harassment or persecution. In a criminal case, the veiled object
behind a lame prosecution, the very nature of the material on
which the structure of the prosecution rests and the like would
justify the High Court in quashing the proceeding in the interest of
justice.
23. As can be gathered from the above, Section 482 Cr.P.C.
recognizes the inherent powers of the High Court to quash
initiation of prosecution against the accused to pass such orders as
may be considered necessary to give effect to any order under the
Cr. P.C. or to prevent abuse of the process of any court or
otherwise to secure the ends of justice. It is a statutory power
vested in the High Court to quash such criminal proceedings that
would dislodge the charges levelled against the accused and based
on the material produced, lead to a firm opinion that the assertions
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contained in the charges levelled by the prosecution deserve to be
overruled.
24. While exercising the powers vested in the High Court under
Section 482, Cr. P.C., whether at the stage of issuing process or at
the stage of committal or even at the stage of framing of charges,
which are all stages that are prior to commencement of the actual
trial, the test to be applied is that the Court must be fully satisfied
that the material produced by the accused would lead to a
conclusion that their defence is based on sound, reasonable and
indubitable facts. The material relied on by the accused should
also be such that would persuade a reasonable person to dismiss
the accusations levelled against them as false.
25. In the backdrop of the aforesaid settled proposition of law this
Court is now adverting to the fact of the case in order to adjudicate
the claim of the petitioner that he has no role in the alleged
commission of crime.
26. This Court has gone through the order taking cognizance as well
as various paragraph of the counter affidavit, wherefrom it is
evident that C.B.I., S.P.E., Dhanbad has instituted the case against
16 persons and other unknown on the basis of a report of the “Job
Chief Vigilance” officer Counsel of Scientific and Industry
Research, New Delhi bearing R.C.1(A)/03-D dt.28.01.2003 for the
offences u/s 120-B, 420 IPC and Section 13(2) r/w 13(1)(d) P.C.
Act.
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27. The Chief Vigilance Officer had alleged that Dr. T.N. Singh, Ex.
Director, C.M.R.I and few other officials of C.M.R.I., Dhanbad
during the period of April, 1999 had purchased many items like
equipment, filter papers, digital burette etc. and chemicals on
limited tender by splitting the requirement or by keeping the
estimate-cost, below Rs. 2 lacs. The ceiling for limited tendering.
The enquiry Letters were sent to only few selected firms and this
was done with motive of personal gains resulting price difference
between the price that which the purchases were affected and the
actual price of the items.
28. The details of the payment made price as per price list and loss
amount has been mentioned which shows that there was huge
wrongful loss to the tune of approximately Rs. 50 lacs and
corresponding wrongful gain to the accused persons which is a
result of criminal conspiracy.
29. The learned counsel for the petitioner has submitted that since if
the charge which is identical could not be established in the
departmental proceeding where the standard of proof required to
establish the guilt is quite lesser than the standard of proof
required to establish the guilt in criminal case, the criminal
proceeding should not be allowed to be continued, rather be
quashed.
30. Per contra the learned counsel for the CBI has submitted that any
finding recorded by the disciplinary authority even if it is there as
in the case of the petitioner that the finding of disciplinary
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authority will hardly affect the criminal case which gets decided
on the basis of material collected during investigation and
therefore, any finding recorded by the disciplinary will have no
bearing upon the criminal case.
31. In the aforesaid context the seminal question involved in the
instant case is whether the proceeding arising out of RC Case
no.1(A)/2003(D), which are premised on identical allegations on
which disciplinary proceedings were initiated against the present
petitioner, are liable to be quashed once the petitioner has been
exonerated in the disciplinary proceedings.
32. Before appreciating the aforesaid issue, this Court thinks fit to
refer herein the article of charges which has been alleged against
the present petitioner in departmental proceeding:
Article of charges :
Article-I
Dr. BK Tewary while functioning as Scientist in Central Mining
Research Institute, Dhanbad during the year 1999 and onwards
committed misconduct inasmuch as, he, in his capacity as HOD
& Project Leader, did. not club the requirements for purchase of
dispensettes, digital burettes, pipette controllers and pipetters
etc. and split their processing by repeatedly recommending on
9.4.99, in June ’99, on 7.6.99 and 10.6.99 the names of firms
from some of whom the said equipment came to be purchased at
prices higher than those in the price list and thereby caused
huge pecuniary gains of over Rs. 12.00 lakhs to the concerned
firms and conversely losses to CMRI/CSIR and thus violated the
Rule 103 of General Financial Rules (GFR) which envisages
that Stores should be purchased economically and not in small
quantities and thereby exhibited lack of absolute integrity and
devotion to duty contravening the Rule 3 (1) (i) and (ii) of CCS
(Conduct) Rules, 1964 as made applicable to Council
employees.
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Article-II
That the aforesaid Dr. Tewary while functioning as Scientist in
Central Mining Research Institute, Dhanbad during the year
1999 and onwards committed misconduct inasmuch as, he
recommended on 28.5.99 and 25.6.99 acceptance of quotations
from the firms, M/s. Shivalik Enterprises, Dhanbad, M/s. Vishal
Marketing, Calcutta and M/s. Ava Enterprises, Dhanbad which
led to purchase from them of dispensettes, digital burettes,
pipette controllers and pipetters etc for more than Rs. 7.00 lakhs
at prices higher than those in the price list and thereby caused
huge pecuniary gains of over Rs.12.0 lakhs to the concerned
firms and conversely loss to CMRI/CSIR and thus exhibited lack
of absolute integrity and devotion to duty contravening the Rule
3 (1) (i) and (ii) of CCS (Conduct) Rules, 1964 as made
applicable to Council employees
33. From the aforesaid it is evident that on the aforesaid charges
departmental proceeding was initiated and consequently criminal
proceeding has also been initiated but it is evident from the record
that the charge-sheet has been submitted against the petitioner
under Section 120 B IPC also along with the other offences i.e.
420/467/468/471 of IPC and Section 13(2) read with Section
13(1)(d) of Prevention of Corruption Act and consequently the
cognizance of the offence has been taken by the concerned court.
34. It needs to refer herein that the course which is to be taken in the
matter of departmental proceeding is that the charge is not to be
framed on the basis of the allegation of conspiracy but the charge
is to be framed on the ground of misconduct in discharge of
official duty, therefore the petitioner since has been alleged to
have committed offence under Section 120(B) of IPC and the
angle of conspiracy since has not been appreciated in the
departmental proceeding rather the same can only be appreciated
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in trial on the basis of evidence led by the parties, as such,
exoneration in the departmental proceeding, on the issue of
accusation of conspiracy in the judicial proceeding will not have
any impact applicable.
35. It requires to refer herein that conspiracy is not an open affair,
therefore, the prosecution has to rely upon the evidence pertaining
to the acts of various parties to prove such an agreement of
conspiracy on the basis of circumstantial evidence which can be
inferred by necessary implication.
36. The Hon’ble Supreme Court, in plethora of decisions, has
observed that for an offence punishable under Section 120B of the
IPC, the prosecution need not necessarily prove that the
propagators expressly agree to do or carried to be done an illegal
act and such agreement may be proved by necessary implication to
be determined from the circumstantial evidence brought on record.
37. Further, Offence of criminal conspiracy is complete even though
there is no agreement as to the means by which the purpose is to
be accomplished. It is the unlawful agreement, which is the
gravamen of the crime of conspiracy. The unlawful agreement
which amounts to a conspiracy need not be formal or express, but
may be inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. Reference in
this regard may be taken from the judgment rendered by the
Hon’ble Apex Court in the case of State of T.N. through
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Superintendent of Police CBI/SIT Petitioner v. Nalini and
others; (1999) 5 SCC 253.
38. In Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra (AIR 1965 SC 682) a three-Judge Bench of the
Apex Court held that the offence of conspiracy can be established
either by direct evidence or by circumstantial evidence and the
section will come into play only when the Court is satisfied that
there is reasonable ground to believe that two or more persons
have conspired to commit an offence or an actionable wrong, that
is to say, there should be prima facie evidence that a person was a
party to that conspiracy.
39. The Hon’ble Apex Court in the case of State of M.P. v. Sheetla
Sahai (2009) 8 SCC 617 has held as follows:–
“Criminal conspiracy is an independent offence. It is punishable
separately. Prosecution, therefore, for the purpose of bringing
the charge of criminal conspiracy read with the aforementioned
provisions of the Prevention of Corruption Act was required to
establish the offence by applying the same legal principles
which are otherwise applicable for the purpose of bringing a
criminal misconduct on the part of an accused.”
40. Thus, from the aforesaid settled proposition of law that offence of
conspiracy can be established either by direct evidence or by
circumstantial evidence but the Section 120-B of the Indian Penal
Code will come into play only when the Court is satisfied that
there is reasonable ground to believe that two or more persons
have conspired to commit an offence or an actionable wrong.
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41. Thus, on the basis of the aforesaid settled legal proposition, it is
evident that the angle of conspiracy on behalf of the petitioner
may well be appreciated before the trial court only.
42. Further, from the record, it appears that during investigation, the
C.B.I. has collected several documents and has recorded statement
of several witnesses. Some witness namely, Haldhar Mandal,
Pradip Kr. Biswas, Ravindra Nath Rana, Rupak Choudhary, Pravir
Kumar Rai have been produced and their statement u/s 164
Cr.P.C. has been recorded.
43. From investigation, it reveals that the petitioner along with other
accused persons were public servant during the year 1999-2000,
and several items like Glass Microfibre, Filter paper, Whatman
Filter Paper, Digital Burette, and Dis-pensetee Bottle Top
Dispensor, Digital Titration Burrette, Digital Burette positive,
Displacement Micro-pipetor and several types of chemicals and
other equipments were purchased by the C.M.R.I and for such
purchase, a conspiracy was made by the accused persons with
supplying firms and in pursuance of that conspiracy, false
incomplete split indents were initiated and in the most faulty
manner it was approved by the Standing Purchase Committee and
Purchase Order was placed on the firms and supply was taken at
inflated rates on limited tenders.
44. The Officials of CMRI have also managed and forged the
quotation of various firm and procured the purchase order for
various items. It has been alleged that actual supplier was
deliberately kept out. The specific items received were not as per
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specification and were of sub-standard even sometimes, were
purchased without requirement.
45. Thus, prima facie it appears that in the purchase procedure the
ideal rules were not followed. Even the investigation further
reveals that, even some firms were not remotely connected with
the dealing in the specific items and materials. Further,
spectrometer, microwave, digestion system were found to be
different from the specification and were inferior in quality.
Similarly, the other items like filter paper of Whatman ‘filter
paper, digital burette, Dispensetee bottle and chemicals were
purchased from the firms who were not authorized dealers in such
matters. From the perusal of order taking cognizance and counter
affidavit, it further appears that while making purchase of
aforesaid items for C.M.R.I. the rules required for purchase of
such items were not followed.
46. Thus, from the record, prima facie it appears that there are
sufficient material which discloses prima facie case for the offence
punishable u/s 120B, 420, 467, 468, 471 IPC and sec. 3(2) r/w
13(1)(d) of the P.C. Act against the present petitioner.
47. It also appears that necessary sanction order has been obtained
against the present petitioner along with the other accused persons.
48. Further it requires to refer herein settled proposition of law that
while quashing a charge/proceedings either in exercise of
jurisdiction under Section 397 CrPC or Section 482 CrPC or
together, the Court cannot take into consideration external
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materials given by an accused for reaching to the conclusion that
no offence was disclosed or that there was possibility of his
acquittal. The Court has to consider the record and documents
annexed therewith by the prosecution. Reference in this regard
may be taken from the ratio rendered by the Hon’ble Apex Court
in the case of Supriya Jain v. State of Haryana(supra).
49. Further, the Hon’ble Apex Court in the case of Iveco Magirus
Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024)
2 SCC 86 while referring the ratio of Supriya Jain v. State of
Haryana(supra) has observed that those documents/materials on
which the appellant seeks to rely have not been admitted or
accepted by the complainant and are yet to be proved; hence, the
same cannot be looked into while considering a prayer for
quashing. For ready reference the same is being quoted as under
71. Answer to Question (b) must necessarily depend on the facts
of each case, meaning thereby the quality of evidence that is led
in course of the trial and the weight to be attached to it. At this
stage it would not be inappropriate to consider the other line of
argument advanced by Mr Taneja that those
documents/materials on which the appellant seeks to rely have
not been admitted or accepted by the complainant and are yet to
be proved; hence, the same cannot be looked into while
considering a prayer for quashing. The ratio of the decision
in Supriya Jain [Supriya Jain v. State of Haryana, (2023) 7 SCC
711 : (2023) 3 SCC (Cri) 281] finds support from an earlier
decision of this Court in Chand Dhawan v. Jawahar Lal [Chand
Dhawan v. Jawahar Lal, (1992) 3 SCC 317 : 1992 SCC (Cri)
636] , where it was held that the High Court [Jawahar
Lal v. Chand Dhawan, 1991 SCC OnLine P&H 2108] of Punjab
and Haryana was not justified in quashing the complaint and
the criminal proceedings on the ground of abuse of the process
of court by relying on additional material produced by the18 Cr.M.P. No. 1272 of 2008
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accused, which was not admitted in evidence or accepted by the
complainant.
50. Further it needs to refer herein that the Division Bench of the
Hon’ble Supreme Court when did find that two contrary views are
there on the point as to whether exoneration in the departmental
proceeding would lead to acquittal in a criminal case in a case of
P.S. Rajya vs State of Bihar (supra) and also in a case of Kishan
Singh vs.Gurpal Singh [(2010) 8 SCC 775], referred the matter to
a Larger Bench in a case of State (NCT of Delhi) vs. Ajay Kumar
Tyagi (2012) 9 SCC 685 where following issue fell for
consideration :-
” whether the prosecution against an accused
notwithstanding his exoneration on the identical charge in
the departmental proceeding could continue or not” ?
51. The petitioner emphatically relied upon a decision rendered in a
case of P.S. Rajya vs State of Bihar (supra). However, their
Lordships after taking consideration the fact of the case of P.S.
Rajya vs State of Bihar (supra) did find that their Lordships in a
case of P.S. Rajya vs State of Bihar (supra) has never derived any
proposition that on exoneration of an employee in the
departmental proceeding, criminal prosecution on the identical
charge or the evidence has to be quashed, rather on the peculiar
facts appearing in that case, criminal case was quashed upon
exoneration in the departmental proceeding which, according to
their Lordships, was evident from the observation made in
paragraph-23 of the decision rendered in a case of P.S. Rajya’s
case which reads as under:
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“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 can not 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 27.3.1996 for allowing the appeal and quashing
the impugned criminal proceedings and giving consequential
reliefs.”
52. Thereupon, it was held that that the standard of proof in a
departmental proceeding is lower than that of criminal
prosecution. But at the same time, 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
cannot be rejected on the basis of evidence in the departmental
proceeding or the report of the enquiry officer based on those
evidences. Thereupon, Their Lordships came to the conclusion
that exoneration in the departmental proceeding ipso facto would
not lead to exoneration or acquittal in criminal case.
53. On the basis of discussion made hereinabove, this Court is of the
considered view that no consideration can be given to quash the
order taking cognizance or entire criminal proceeding on the
20 Cr.M.P. No. 1272 of 2008
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ground of exoneration in the departmental proceeding for the
following reasons:
(i) Exoneration in the departmental proceeding ipso facto
would not lead to exoneration or acquittal in criminal case.
(ii) The question of taking the ground of exoneration in the
departmental proceeding for the purpose of quashing the
judicial proceeding as has been considered by the Hon’ble
Apex Court in the case of P.S. Rajya vs State of Bihar
(supra), this Court has found from its consideration that the
said judgment was delivered in the peculiar facts of the case
and as such, the same is not applicable in the facts of the
present case.
(iii) The day when the cognizance was taken, the departmental
proceeding was pending and the Court who has taken the
cognizance has based its consideration by applying its
judicial mind as per the document available in the case diary
which led the order taking cognizance to have a prima facie
case of accusation against the petitioner and as such, the
cognizance has been taken under Sections
120(B)/420/467/468/471 of IPC and Section 13(2) read with
Section 13(1)(d) of Prevention of Corruption Act.
(iv) The principle of exoneration in the departmental proceeding
in the present facts of the case will not be applicable since
in addition to the penal provision under the Prevention of
Corruption Act and the Indian Penal Code, the Section
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120(B) has also been inserted making accusation against thepetitioner of allegation of conspiracy and the course which
is to be taken in the matter of departmental proceeding is
that the charge is not to be framed on the basis of the
allegation of conspiracy but the charge is to be framed on
the ground of misconduct in discharge of official duty.
(v) The petitioner since has been alleged to have committed
offence under Section 120(B) of IPC and as such,
exoneration in the departmental proceeding on the issue of
accusation of conspiracy in the judicial proceeding will not
be applicable.
(vi) In the judicial proceeding, if the accusation is also under
Section 120(B) of IPC then certainly the trial is to be
commenced for the purpose of proving or disproving the
charge particularly to consider the accusation of conspiracy
which ultimately is not possible to be there in the
departmental proceeding.
54. Further, the instant petition has been filed under Section 482 of
Cr.P.C. questioning the order taking cognizance dated 21.04.2006
and the day when the court took cognizance, a departmental
proceeding was pending and as such, the same was not before the
concerned court and it cannot be there at the time of taking
cognizance in view of the principle that the Court is to take
cognizance on the basis of material available as has been surfaced
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in course of investigation as per the case diary based upon that the
charge-sheet has been submitted.
55. The exoneration in the departmental proceeding can only be said
to be a foreign document at the stage of taking cognizance which
cannot be permitted to be considered by the Court who is to take
cognizance, since the same is foreign to the material which has
been collected by the investigating officer in course of
investigation.
56. On the basis of the discussion made hereinabove, this Court is of
the considered view that the instant petition is not fit to be
allowed.
57. Accordingly, the present petition stands dismissed.
58. Pending interlocutory application(s), if any, also stands disposed
of.
(Sujit Narayan Prasad, J.)
Saurabh/-
A.F.R.
23 Cr.M.P. No. 1272 of 2008