Jammu & Kashmir High Court – Srinagar Bench
Waseem Qureshi vs State Of J&K And Another on 4 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 05.06.2025
Pronounced on:04.07.2025
CRMC No.179/2018
WASEEM QURESHI ...PETITIONER(S)
Through: - Mr. Salih Pirzada, Advocate, with
Ms. Sharaf Wani, Advocate,
Mr. Bhat Shafi, Advocate.
Vs.
STATE OF J&K AND ANOTHER ...RESPONDENT(S)
Through: - Mr. Mohsin Qadiri, Sr. AAG, with
Ms. Nadiya Abdullah, Assisting Counsel.
Mr. Mohammad Saleem Qureshi (Inspector, I.O. ACB,
South Wing)
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner, through the medium of present
petition, has challenged FIR No.28/2010 registered with
Police Station Vigilance Organization, Kashmir, alleging
commission of offences under Section 5(1)(c) and 5(1)(d) of
J&K Prevention of Corruption Act read with Section 120-B,
409, 468 and 471 RPC.
2. As per the impugned FIR, a Joint Surprise Check
(JSC) was conducted into the allegations of
misappropriation of public revenue by Shri Mohammad
Amin Nazki Cashier and other officers/officials of SMHS
Hospital, Srinagar, during the period 01.04.2007 to
16.03.2010. During the JSC, it was found that public
CRMC No.179/2018 Page 1 of 30
revenue was collected by the office of Medical
Superintendent, SMHS Hospital, Srinagar, from different
sources, namely, investigation charges, parking charges,
rent of the canteen of the hospital through Deputy Medical
Superintendent/Medical Record Officer and was being
handed over to Cashier of SMHS Hospital, Srinagar, for its
remittance/deposition under three heads, namely,
Hospital Development Fund (HDF), 0210 (Government
Revenue) and 8443 (Revolving Fund Deposit). It was found
that the revenue collected under the head ‘HDF’ was
supposed to be deposited in J&K Bank Ltd. Branch Office
Medical College, Srinagar, and the revenue collected under
other two heads was supposed to be deposited in
Government Treasury, Tankipora, Srinagar. It was also
found during the JSC that account head 0210 was
maintained by Accounts Officer as DDO and other two
heads i.e. 8443 and HDF, were being operated by Medical
Superintendent, SMHS Hospital, Srinagar, as Drawing
and Disbursing Officer.
3. It is further alleged in the impugned FIR that JSC
conducted revealed that during the period prior to April
2007 to March 2010, an amount of Rs.1,43,89,360/ was
realized as revenue under different heads from the public
and the same was handed over to Shri Mohammad Amin
CRMC No.179/2018 Page 2 of 30
Nazki, Cashier, for its remittance to Government
Treasury, Tankipora, and J&K Bank. However, Shri
Mohammad Amin Nazki, Cashier, unauthorizedly and
illegally incurred an expenditure of Rs.63,52,514/ on
different components, namely, salary, refunds and
refreshment charges out of the aforesaid amount. It was
also found that Shri Mohammad Amin Nazki, Cashier,
willfully retained an amount of Rs.80,36,846/ and did not
deposit the same in the Government Treasury/J&K Bank
for a considerable period with criminal intent to
misappropriate the same. It was found that Shri
Mohammad Amin Nazki, Cashier, had resorted to
manipulation of records, namely, Cash Book etc. Thus, it
was found that Shri Mohammad Amin Nazki, Cashier, in
league with concerned DDOs and other officials of SMHS
Hospital, Srinagar, has misappropriated public revenue of
Rs.80,36,846/.
4. It is further alleged in the impugned FIR that Shri
Mohammad Amin Nazki, Cashier, subsequently, after
detection of misappropriation, deposited an amount of
Rs.52,89,113/ in Government Treasury leaving behind an
amount of Rs.27,47,733/. It is alleged that Shri
Mohammad Amin Nazki, Cashier, and others, by abusing
their official position and in league with each other,
CRMC No.179/2018 Page 3 of 30
dishonestly misappropriated public revenue of
Rs.80,36,846/. Thus, they have committed offences
under Section 5(1)(c) and 5(1)(d) of J&K PC Act read with
Section 120-B, 409, 468 and 471 RPC.
5. The petitioner has challenged the impugned FIR and
the investigation conducted pursuant thereto on the
grounds that he, in his capacity as Head of SMHS Hospital
at the relevant time, cannot be made vicariously liable for
any illegal action committed by the accused named in the
FIR. It has been submitted that the hospital management
is dichotomized into Administrative Management and
Financial Management. According to the petitioner, the
administration is run by Medical Superintendent whereas
the financial wing is headed by the Accounts Officer,
therefore, misappropriation of finances by the Accounts
wing cannot be attributed to the petitioner, who was
serving as the Medical Superintendent during the relevant
period. It has been contended that there is a huge and
inexplicable delay in lodging of the FIR. It has been further
contended that the petitioner has been subjected to
regular departmental enquiry in respect of similar charges,
whereafter he has been exonerated of the charges. Once
the petitioner has been exonerated of the charges which
are basis of the impugned FIR and the investigation
CRMC No.179/2018 Page 4 of 30
emanating therefrom, he cannot be prosecuted for the
same charges.
6. The petitioner has further submitted that while being
posted as Medical Superintendent, SMHS Hospital,
Srinagar during the year 2009-2010, he incurred
expenditure of Rs.16.45 lacs out of the Hospital
Development Fund in the interest of patient care to meet
the exigency that arose due to outbreak of general law and
order disturbance in the wake of Amarnath land row which
was followed by long series of curfews, strikes and road
blockades. It has been submitted that in terms of
Government Order No.954-HME of 2000 dated
21.12.2000, Medical Superintendent, SMHS Hospital, is
competent to utilize Hospital Development Fund subject
to certain conditions and in the present case, in
accordance with the mandate of aforesaid Government
Order, the action regarding utilization of funds to the tune
of Rs.16.45 lacs by the petitioner was regularized/ratified
by the Committee envisaged under the Government Order
dated 21.12.2000(supra). On the basis of these
contentions, it has been submitted that the impugned FIR
and the proceedings emanating therefrom are liable to be
quashed.
CRMC No.179/2018 Page 5 of 30
7. The respondents have filed a series of status reports
indicating therein the status of the investigation. In their
status reports, the respondents, besides reiterating the
allegations made in the impugned FIR, have submitted
that the investigation conducted revealed that from April,
2007 to December, 2009, an amount of Rs.1,02,55,020/
was found to be embezzled by the accused officers/officials
in furtherance of a criminal conspiracy. It was also found
that Cashier Mohammad Amin Nazki, had remitted an
amount of Rs.54,10,285/, thus reducing the embezzled
amount to Rs.48,44,735/. According to the respondents,
it was found that the Cashier had manipulated the cash
books by overwriting and cuttings.
8. It has been contended that that the petitioner, who
was Medical Superintendent, SMHS Hospital, Srinagar,
was entrusted with the responsibility of having overall
control of the accounts section and, thus, entrustment of
Government revenue stands established against him as
also against the Accounts Officer of SMHS Hospital,
Srinagar. On this basis it has been submitted that
involvement of the petitioner in commission of the offence
is established. It has been further submitted that the Chief
Accounts Officer, SMHS Hospital was asked to provide
details of vouchers depicting nature of procurement of
CRMC No.179/2018 Page 6 of 30
items etc. relating to expenditure of Rs.16.45 lacs out of
the Hospital Development Fund. It has been submitted
that as per the communication of Chief Accounts Officer,
SMHS Hospital, Srinagar, amount of Rs.16.45 lacs has not
been released by the Government as yet and the same has
not been re-couped in the Hospital Development Fund as
yet.
9. It has been further indicated in the latest status
report that attested copies of list of vouchers, number,
date and amount have been provided but the original
vouchers are not available in the office of Medical
Superintendent as the same have got damaged in the
floods of 2014. The latest status report filed by the
respondents gives the details about the vouchers
pertaining to expenditure of amount out of Hospital
Development Fund, which, according to the details,
aggregates to an amount of Rs.16,83,913. According to the
Investigating Agency, scrutiny of the record and the list of
vouchers reveals that the amount has been spent for
payment of commercial tax, HSD/repair charges/loading
un-loading charges, telephone bills, refreshment charges,
purchase of electric lamps, polythene, torches, steel
trunks, stationary items, biding charges, carpenter items,
sign boards, soap, repairing of computer, grass cutting
CRMC No.179/2018 Page 7 of 30
machine, welding charges, room heater, crockery, repair
of type writer, plumber items, cartridges etc.
10. It has been submitted that the petitioner along with
other officials, who were working in SMHS Hospital,
Srinagar, at the relevant time, had hatched a conspiracy
between themselves and effected misappropriation of an
amount of Rs.48,44,735/ thereby causing loss to the state
exchequer by abusing their official positions. Thus,
according to the respondents, offences under Section
5(1)(c), (d) of J&K Prevention of Corruption Act read with
Section 120-B, 409, 468 and 471 of RPC are made out
against the petitioner and the co-accused.
11. I have heard learned counsel for the parties and
perused record of the case including the Case Diary.
12. The star ground that has been urged by learned
counsel for the petitioner for impugning the criminal
proceedings against the petitioner is that the petitioner
has been exonerated of the charges which are basis of the
criminal prosecution against him in a regular
departmental enquiry and the enquiry report has been
accepted by the Government, therefore, he cannot be
subjected to criminal prosecution for the same charges. In
order to support his argument, the learned counsel has
CRMC No.179/2018 Page 8 of 30
placed strong reliance upon the judgment of the Supreme
Court in the case titled Ashoo Surendranath Tewari vs.
Deputy Superintendent of Police, EOW, CBI & anr.
2020 SCC OnLine SC 739.
13. It has been contended that criminal proceedings
against the petitioner cannot go on because the standard
of proof in criminal proceedings is higher than the
standard of proof in a departmental enquiry. Thus, if the
charges could not be proved on the touchstone of
preponderance of probability, there is no chance of proof
of said charges in a proceeding where the same are
required to be proved beyond reasonable doubt.
14. In the present case, the record available in the Case
Diary as well as the documents annexed to the petition
tend to show that vide Government Order No.273-HME of
2014 dated 28.05.2014, Dr. Parvez Ahamd Shah was
appointed as Enquiry Officer to enquire into the charges
framed against the petitioner. Accordingly, a regular
departmental enquiry in terms of Rule 33 of the J&K Civil
Services (Classification, Control and Appeal) Rules, 1956
came to be initiated against the petitioner. As many as six
charges were framed against the petitioner. As per Article
of Charge-1, it was alleged that the petitioner, in his
capacity as Medical Superintendent of SMHS Hospital,
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was involved in financial mismanagement and
embezzlement of Government money under Hospital
Development Fund in SMHS Hospital, Srinagar. As per
Article of Charge-2, it was alleged that the petitioner had
not bothered to exercise a proper check and control over
the Cashier. Vide Article of Charge-3, it was alleged that
the petitioner had spent an amount of Rs.16.45 lacs out of
Hospital Development Fund on purchase of medicines etc.
in view of road blockades during Amarnath land row of
2008 without seeking prior approval of the competent
authority, which act of the petitioner tantamounts to
abuse of official position. As per Article of Charge-4, the
petitioner had failed to perform his duties efficiently,
inasmuch as he had violated the guidelines with regard to
Hospital Development Fund as contained in Government
Orde dated 21.12.2000(supra). As per Article of Charge-5,
the petitioner had failed to keep a close watch on the
working of accounts/cash section which resulted in
misappropriation/embezzlement of Government funds. As
per Article of Charge-6, the petitioner had managed
absolute dishonesty in discharge of his official duties with
a view to misappropriate/embezzle the government funds.
15. The Enquiry Officer vide his report dated 11.07.2014,
exonerated the petitioner from all the six charges. The
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Government feeling dissatisfied with the report of enquiry,
issued Government Order No.295-HME of 2015 dated
04.08.2015, thereby constituting another Enquiry
Committee comprising Dr. Samir Mattoo, Director Health
Services, Kashmir, Dr. Yashpal Sharma, Mission Director,
National Health Mission, and Shri Zahoor Ahmad Wani,
Director Finance, Health and Medical Education
Department. The Enquiry Committee was directed to
submit its findings/recommendation within a period of
one month. The said Enquiry Committee submitted its
report vide communication dated 27.04.2016, making the
following observations:
“The perusal of all the enquiry reports and
due consideration of the averments made
by Dr. Qureshi, the committee observes
that Dr. Qureshi has not been found
responsible for the embezzlement. The
procurement of medicine/POL from HDF in
violation of rules thereto during the
Amarnath agitation of 2008 has been
confirmed/ratified by the Hospital
Development Committee (HDC). The rest
of the outstanding embezzled amount
against the delinquent cashier, Mr.
Mohammad Ami Nazki, needs to be
recovered forthwith after complete
reconciliation, of all the receipt pertaining
to the period, by the Accounts officers,
Associated Hospital Srinagar Supervisory
laps on HDF account and the HDF cashier
needs to be looked into as Qureshi during
the course of hearing stated that
maintaining the HDF accounts w the
responsibility of the DDO (Accounts
Officer). However, the committee observes
the Dr. Qureshi’s statement though
plausible yet not tenable.”
CRMC No.179/2018 Page 11 of 30
16. The aforesaid report of the Enquiry Committee has
been accepted by the Government in terms of Government
Order No.508-HME of 2016 dated 16.09.2016 whereby
charges levelled against the petitioner have been decided
to be dropped. However, he has been warned to remain
careful in future during the conduct of any assignment. It
has also been observed that in future the petitioner should
not be posted to any such assignment which requires
accounting supervision.
17. From the foregoing analysis of the facts relating to
the present case, it is clear that none of the charges leveled
against the petitioner including those related to
embezzlement of funds have been established during the
departmental enquiry conducted against him. It, however,
seems that the Government is not satisfied with the
manner in which the petitioner has exercised his power of
supervision over the accounts wing of the SMHS Hospital,
Srinagar, at the relevant time. The question that begs for
answer is as to whether in the facts and circumstances of
the case, the petitioner, in view of the ratio laid down by
the Supreme Court in Ashoo Surendranath Tewari’s case
(supra) deserves to be let off from the criminal prosecution
on the ground that for identical charges he has been
exonerated in regular departmental enquiry by as many as
CRMC No.179/2018 Page 12 of 30
two Enquiry Committees and report of the second enquiry
committee stands accepted by the Government.
18. This Court had an occasion to survey the legal
position on the issue as to in what circumstances
exoneration in departmental proceedings would lead to
quashment of criminal proceedings on identical charges in
the case of Sarwan Singh vs. State, 2020 SCC OnLine
J&K 736. It would be apt to refer to the relevant
paragraphs of the said judgement which are reproduced
as under:
7. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1, the
Supreme Court has 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. In the said case,
which pertained to the charges of disproportionate
assets, the Engineers had prepared valuation report of the
house of the petitioner for income tax purposes depicting
its valuation @Rs. 4.67 lakhs, whereas, same Engineers
prepared valuation of the same house during the
investigation of the case by the CBI @ Rs. 7, 69, 300/-. The
appellant in that case was cleared of the charges in the
departmental enquiry by the Central Vigilance
Commission, which was accepted by the UPSC. The
Court, on the peculiar facts of the case, held that criminal
proceedings initiated against the appellant on the same
charges cannot be pursued.
8. In a later judgment of the Supreme Court in Kishan
Singh (D) through LRs v. Gurpal Singh, (2010) 8 SCC 775, a
contrary view has been taken by the Supreme Court to the
effect that the findings of fact recorded by Civil Court do
not have any bearing so far as criminal case is concerned
and vice-versa. The Court observed that there is neither
statutory nor any legal principal that findings recorded by
the Court either in Civil or Criminal proceedings shall be
binding between the parties while dealing with same
subject matter and both the cases have to be decided on
the basis of the evidence adduced therein.
CRMC No.179/2018 Page 13 of 30
9. The two contrary views taken by the Supreme Court in
the aforesaid two cases came up for consideration before
a three Judge Bench of the Supreme Court in the case
of State (NCT of Delhi) v. Ajay Kumar Tyagi, (2012)
9 SCC 685. The Court, after noticing the facts and
observations of the Supreme Court in P.S. Rajya‘s case,
concluded as under:–
“Even at the cost of repetition, we hasten to add
none of the heads in the case of P.S. Rajya (Supra) is in
relation to the effect of exoneration in the departmental
proceedings on criminal prosecution on identical charge.
The decision in the case of P.S. Rajya (Supra), therefore
does not lay down any proposition that on exoneration of
an employee in the departmental proceeding, the criminal
prosecution on the identical charge or the evidence has to
be quashed. It is well settled that the decision is an
authority for what it actually decides and not what flows
from it. Mere fact that in P.S. Rajya (Supra), this Court
quashed the prosecution when the accused was
exonerated in the departmental proceeding would not
mean that it was quashed on that ground. This would be
evident from paragraph 23 of the judgment, which reads
as follows:
“23. 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
cannot 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.”
From the reading of the aforesaid passage of the
judgment it is evident that the prosecution was not
terminated on the ground of exoneration in the
departmental proceeding but, on its peculiar facts”.
10. The Court further referred to the observations of the
Supreme Court in State v. M. Krishna Mohan, (2007)
14 SCC 667 that exoneration in departmental
CRMC No.179/2018 Page 14 of 30
proceeding ipso facto would not lead to acquittal of the
accused in criminal trial and that decision in P.S. Rajya’s
case was rendered on peculiar facts obtaining therein.
11. The Supreme Court also referred to the case
of Central Bureau of Investigation v. V.K. Bhutiani, (2009)
10 SCC 674, wherein the Court had noted with approval
its observations in M. Krishna Mohan‘s case (supra) that
exoneration in departmental proceedings would not lead
to automatic exoneration in criminal proceedings. It was a
case where the accused had challenged his prosecution
before the High Court relying on the decision of the
Supreme Court in P.S. Rajya‘s case and the High Court
quashed the prosecution. On a challenge by the CBI, the
decision was reversed and after relying on the decision in
the case of M. Krishna Mohan, the Supreme Court came
to the conclusion that quashing of the prosecution is
illegal.
12. The Supreme Court in Ajay Kumar Tyagi‘s case (supra)
after discussing the whole law on the subject, came to the
conclusion that exoneration in departmental
proceedings ipso facto would not lead to acquittal of the
accused in criminal trial. While holding so, the Court
observed as under:–
“Therefore, in our opinion, the High court quashed
the prosecution on total misreading of the
judgment in the case of P.S. Rajya (Supra). In fact,
there are precedents, to which we have referred to
above speak eloquently a contrary view i.e.
exoneration in departmental proceeding ipso facto
would not lead to exoneration or acquittal in a
criminal case. On principle also, this view
commends us. It is well settled that the standard of
proof in department proceeding is lower than that
of criminal prosecution. 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 the
evidence in the departmental proceeding or the
report of the Inquiry Officer based on those
evidence.
We are, therefore, of the opinion that the
exoneration in the departmental proceeding ipso
facto would not result into the quashing of the
criminal prosecution. We hasten to add, however,
that if the prosecution against an accused is solely
CRMC No.179/2018 Page 15 of 30
based on a finding in a proceeding and that finding
is set aside by the superior authority in the
hierarchy, the very foundation goes and the
prosecution may be quashed. But that principle will
not apply in the case of the departmental
proceeding as the criminal trial and the
departmental proceeding are held by two different
entities. Further they are not in the same
hierarchy”.
13. Learned counsel for the petitioner has vehemently
contended that the judgment of the Supreme Court
in Ashoo Surendranath Tiwari ‘s case being later in point of
time would hold the field. In the said case, the Supreme
Court has, after relying upon the ratio laid down in P.S.
Rajya‘s case as also the ratio laid down by the Supreme
Court in Radheshyam Kejriwal v. State of West
Bengal, (2011) 3 SCC 581, culled out the following
principles:–
“38. The ratio which can be culled out from these
decisions can broadly be stated as follows:–
(i) Adjudication proceeding and criminal
prosecution can be launched
simultaneously;
(ii) Decision in adjudication proceeding is not
necessary before initiating criminal
prosecution;
(iii) Adjudication proceeding and criminal
proceeding are independent in nature to
each other;
(iv) The finding against the person facing
prosecution in the adjudication proceeding
is not binding on the proceeding for criminal
prosecution;
(v) Adjudication proceeding by the Enforcement
Directorate is not prosecution by a
competent court of law to attract the
provisions of Article 20 (2) of the Constitution
or Section 300 of the Code of Criminal
Procedure;
(vi) The finding in the adjudication proceeding in
favour of the person facing trial for identical
violation will depend upon the nature of
finding. If the exoneration in adjudication
proceeding is on technical ground and not on
merit, prosecution may continue; andCRMC No.179/2018 Page 16 of 30
(vii) In case of exoneration, however, on merits
where allegation is found to be not
sustainable at all and person held innocent,
criminal prosecution on the same set of facts
and circumstances cannot be allowed to
continue underlying principle being the
higher standard of proof in criminal cases.”
14. The Court went on to opine that the yardstick would be
to judge as to whether the allegation in the adjudication
proceedings as well as the proceedings for a prosecution
is identical and the exoneration of the person concerned
in the adjudication proceedings is on merits. In case it is
found on merit that there is no contravention of the
provisions of the Act, in the adjudication proceedings, the
trial of the person concerned shall be an abuse of the
process of the Court.
15. From careful analysis of the law discussed by the
Supreme Court in the aforesaid judgments, it is clear that
there is diversion of opinion expressed by the Supreme
Court in Ajay Kumar Tyagi‘s case and Ashoo Surendranath
Tiwari’s case. While in the former judgment, the Supreme
Court has, after discussing the earlier case law on the
subject, observed that the exoneration in departmental
proceedings would not result in quashing of the criminal
prosecution, whereas in the Ashoo Surendranath Tiwari ‘s
case, it has been laid down that if the allegations in the
adjudication proceedings as well as in the proceedings for
prosecution are identical and the exoneration of the
person concerned in the adjudication proceedings is on
merits, the trial of the person concerned shall be an abuse
of the process of the Court. It is to be noted here that
in Ashoo Surendranath Tiwari’s case (supra), the
judgment delivered by the Supreme Court in State v. Ajay
Kumar Tyagi (supra) has neither been referred nor
considered by the Court. Both the aforesaid judgments
have been delivered by Benches of co-equal strength.
16. The question arises as to what is the course open to
this Court in this situation. A five Judge Bench of the
Supreme Court has, in the case of Atma Ram v. State of
Punjab, AIR 1959 SC 519, observed that when confronted
with two contrary decisions of equal authorities, the
subordinate Court is not necessarily obliged to follow the
later, but would have to perform the embarrassing task of
preferring one view to another. A Full Bench of the Bombay
High Court in the case of Kamleshwarkumar Ishwardas
Patel v. Union of India, (1994) 2 Mah LJ 1669, while
considering the issue regarding the course to be followed
by the High Court when confronted with contrary
decisions of the Supreme Court, observed as under:
CRMC No.179/2018 Page 17 of 30
14. It has been pointed out by one of us, while
speaking for a Special Bench of the Calcutta High
Court in Bholanath v. Madanmohan, AIR 1988 Cal
57 on the question as to the course to be followed
by the High Court when confronted with contrary
decisions of the Supreme Court emanating from
Benches of co-equal strength, as hereunder:
“….. When contrary decisions of the Supreme
Court emanate from Benches of equal strength, the
course to be adopted by the High Court is, firstly, to
try to reconcile and to explain those contrary
decisions by assuming, as far as possible, that they
applied to different sets of circumstances. This in
fact is a course which was recommended by our
ancient Jurists – “Srutirdwaidhe Smritirdwaidhe
Sthalaveda Prakalapate” – in case there are two
contrary precepts of the Sruties or the Smritis,
different cases are to be assumed for their
application. As Jurist Jaimini said, contradictions or
inconsistencies are not to be readily assumed as
they very often be not real but only apparent
resulting from the application of the very same
principle to different sets of facts – “Prayoge Hi
Virodha Syat”. But when such contrary decisions of
co-ordinate Benches cannot be reconciled or
explained in the manner as aforesaid, the question
would arise as to which one the High Court is
obliged to follow.”
“One view is that in such a case the High Court has
no option in the matter and it is not for the High
Court to decide which one it would follow but it
must follow the later one. According to this view, as
in the case of two contrary orders issued by the
same authority, the later would supersede the
former and would bind the subordinate and as in
the case of two contrary legislations by the same
Legislature, the later would be the governing one,
so also in the case of two contrary decisions of the
Supreme Court rendered by Benches of equal
strength, the later would rule and shall be deemed
to have overruled the former. P. B. Mukharji, J. (as
his Lordship then was) in his separate, though
concurring, judgment in the Special Bench decision
of this Court in Pramatha Nath v. Chief Justice, AIR
1961 Cal 545 at p.55, para 26, took a similar view, S
P. Mitra, J. (as his Lordship then was) also took such
a view in the Division Bench decision of this Court
in Sovachand Mulchand v. Collector, Central
Excise, AIR 1968 Cal 174 at 186, para 56. To the
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same effect is the decision of a Division Bench of
the Mysore High Court in New Krishna
Bhavan v. Commercial-tax Officer, AIR 1961 Mys
3 at p. 7 and the decision of the Division Bench of
the Bombay High Court in Vasant v. Dikkaya, AIR
1980 Bom 341. A Full Bench of the Allahabad High
Court in U.P. State Road Transport Corpn. v. Trade
Transport Tribunal AIR 1977 All 1 has also ruled to
that effect. The view appears to be that in case of
conflicting decisions by Benches of matching
authority, the law is the latest pronouncement
made by the latest Bench and the old law shall
change yielding place to new.”
“The other view is that in such a case the High Court
is not necessarily bound to follow the one which is
later in point of time, but may follow the one which,
in its view, is better in point of law. Sandhawalia,
C.J. in the Full Bench decision of the Punjab &
Haryana High Court in Indo-Swiss Time
Ltd. v. Umarao, AIR 1981 P&H 213 took this view
with the concurrence of the other two learned
Judges, though as to the actual decision, the other
learned Judges differed from the learned Chief
Justice. In the Karnataka Full Bench decision
in Govinda Naik v. West Patent Press Co., AIR 1980
Kar 92 the minority consisting of two of the learned
Judges speaking through Jagannatha Shetty, J. also
took the same view (supra, at p. 95) and in fact the
same has been referred to with approval by
Sandhawalia, C.J. in the Full Bench decision
in Indo-Swiss Time (supra).”
“This later view appears to us to be in perfect
consonance with what our ancient Jurist Narada
declared-Dharmashastra Virodhe Tu Yuktiyukta
Vidhe Smrita – that is, when the Dharmashastras or
Law Codes of equal authority conflict with one
another, the one appearing to be reasonable, or
more reasonable is to be preferred and followed. A
modern Jurist, Seervai, has also advocated a
similar view in his Constitutional Law of India,
which has also been quoted with approval by
Sandhwalia, C.J. in Indo-Swiss Time (supra, at p.
220) and the learned Jurist has observed that
“judgments of the Supreme Court, which cannot
stand together, present a serious problem to the
High Courts and Subordinate Courts” and that “in
such circumstances the correct thing is to follow
that judgment which appears to the Court to stateCRMC No.179/2018 Page 19 of 30
the law accurately or more accurately than the
other conflicting judgment.”
“It appears that the Full Bench decision of the
Madras High Court in R. Rama
Subbnarayalu v. Rengammal AIR 1962 Mad 480
would also support this view where it has been
observed (at p. 452) that “where the conflict is
between two decisions pronounced by a Bench
consisting of the same number of Judges, and the
subordinate Court after a careful examination of
the decisions came to the conclusion that both of
them directly apply to the case before it, it will then
be at liberty to follow that decision which seems to
it more correct, whether such decision be the later
or the earlier one”. According to the Nagpur High
Court also, as would appear from its Full Bench
decision in D.D. Bilimoria v. Central Bank of
India, AIR 1943 Nag 340 at p. 343, in such case of
conflicting authorities, “the result is not that the
later authority is substituted for the earlier, but that
the two stand side by side conflicting with each
other”, thereby indicating that the subordinate
Courts would have to prefer one to the other and,
therefore, would be at liberty to follow the one or
the other.”
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
“…. We are, however, inclined to think that no
blanket proposition can be laid down either in
favour of the earlier or the later decision and, as
indicated hereinbefore, and as has also been
indicated by the Supreme Court in Atma
Ram (supra), the subordinate Court would have to
prefer one to the other and not necessarily obliged,
as a matter, of course, to follow either the former or
the later in point of time, but must follow that one,
which according to it, is better in point of law. As old
may not always be the gold, the new is also not
necessarily golden and ringing out the old and
bringing in the new cannot always be an invariable
straight-jacket formula in determining the binding
nature of precedents of co-ordinate jurisdiction.”
17. From the aforesaid enunciation of the law relating to
the application of two apparently contrary decisions of the
Supreme Court, it is clear that the High Court has to firstly
consider the facts and circumstances involved in the
decisions rendered by the Supreme Court and then
decide as to which of the two decisions is applicable to
the facts of the case which is subject matter of
CRMC No.179/2018 Page 20 of 30
adjudication before the High Court. In the backdrop of this
legal position, let us now consider as to which of the
aforenoted two Judgments of the Supreme Court would
apply to the facts of the instant case.”
19. In the face of aforesaid legal position on the subject,
it is evident that for determination of the question as to
whether criminal proceedings against an accused deserve
to be quashed once it is shown that he has been
exonerated in departmental proceedings on identical
charges, ultimately boils down to the facts and
circumstances of each case. If from the facts and
circumstances involved in a particular case, it is shown
that the findings of the enquiry report made in the
disciplinary proceedings have been accepted by the
Disciplinary Authority and the accused has been
exonerated of the same very charges which form basis of
his criminal prosecution, then it may be a case for
quashing the criminal proceedings against him but in a
case where the Disciplinary Authority has not finally
accepted the exoneration of the accused in departmental
proceedings, the criminal proceedings cannot be quashed
merely because the enquiry report made in the disciplinary
proceedings is in his favour. Similarly, where a clean chit
has not been given to the accused in the disciplinary
proceedings or where he has been let off in the disciplinary
proceedings on technical grounds, the same may not form
CRMC No.179/2018 Page 21 of 30
a good enough reason for quashing the proceedings
against him. It is not that in every case where an accused
has been exonerated of charges in departmental
proceedings, it could lead to his automatic let off from the
criminal proceedings on identical charges. No straight
jacket formula can be laid down for taking a particular
view of the matter. It all depends upon the facts and
circumstances of each case.
20. With the aforesaid legal position in mind, let us now
advert to the facts of the present case. The allegation of the
prosecution is that there has been embezzlement of
Rs.1,02,55,020/ during the period from April 2007 to
December, 2009, out of which co-accused Mohammad
Amin Nazki, Cashier, has remitted an amount of
Rs.54,10,285/ thereby reducing the embezzled amount to
Rs.48,44,735/. Out of the alleged embezzled amount, the
allegation against the petitioner is that he has utilized an
amount of Rs.16.45 lacs against the norms without
previous approval from the competent authority and so far
as the other portion of the embezzled amount is
concerned, he, being the administrative head of the
hospital, was supposed to have control and supervision
over the accounts wing and, therefore, he is responsible
for embezzlement of the amount.
CRMC No.179/2018 Page 22 of 30
21. In so far as embezzlement of the amount on account
of non-remittance of cash receipts in the Treasury under
account heads 0210 and 8443 is concerned, the DDO in
respect of these two account heads is the Accounts Officer
and not the Medical Superintendent. This is clear from the
report of the Enquiry Committee constituted pursuant to
the report of the audit party of the AGs office, which is
available in the Case Diary. In the said report, it is clearly
indicated that the Accounts Officers of the relevant time,
namely, Mohammad Shafi, G. M. Bhat, S. M. Kakroo, M.
Y. Hamdani, A. S. Mir, M. Y. Hamdani and M. A. Baba were
the drawing and disbursing officers during the period
January, 2007 to December, 2009. It is also indicated in
the said report that the petitioner, in his capacity as
Medical Superintendent, was custodian of Hospital
Development Fund and he had overall control and
supervision over the accounts section.
22. Thus, the petitioner in view of the material available
on record of the Case Diary, though had a supervisory
control over the accounts section, yet he was not the
drawing and disbursing authority nor the immediate
controlling officer of the accounts wing of SMHS Hospital.
Obviously, he was neither responsible for maintaining the
cash book nor was he responsible for remittance of cash
CRMC No.179/2018 Page 23 of 30
into the Treasury or to sign the cash book, which is the
responsibility of drawing and disbursing officer and in this
case, the Accounts Officer. To the extent of embezzlement
in relation to account heads 0210 and 8443, the conduct
of the petitioner, at worst, can be a case of lack of
supervision but on that basis, it cannot be stated that he
had conspired with the cashier or any other officials of the
accounts wing for commission of misappropriation of
funds.
23. So far as liability of the petitioner to account for the
amount of Rs.16.45 lacs, which he has incurred as
expenditure on several items out of the Hospital
Development Fund, is concerned, his explanation is that
he had incurred this expenditure to meet the extreme
exigencies which had arisen due to the situation arising
on account of Amarnath land row in the year 2008, which
resulted in large scale disruption in traffic, law and order
problem in whole of the erstwhile State of Jammu and
Kashmir.
24. We have on record of the Case Diary, copy of
Government Order No. 945-HME of 2000 dated
21.12.2000, which provides for creation of Hospital
Development Fund out of the amount collected from OPD
ticket charges. As per the said Government Order, the
CRMC No.179/2018 Page 24 of 30
fund has to be maintained/utilized by the Medical
Superintendent for minor repairs/maintenance of hospital
concerned and while spending money out of this fund,
minimum of two MLAs/MLCs in the case of SMHS Hospital
have to be associated by the concerned Medical
Superintendent.
25. In the Case Diary, there is also a copy of office
memorandum, the contents whereof are reproduced as
under:
“In order to run the Health care services
effectively during the year 2007-08, 2008-09,
there were untoward circumstances like Road
blockade due to AMARNATH LAND ROW
followed by series of strickes and curfews for
months together, the Hospital has to get the
employee during the period of agitation and
drop them nearly for 4 months as was advised
by Divisional Authorities and then Hon’ble
Health Minister and then. His Excellency the
Governor to provide free 24 hour. Ambulatory
services to each and every patient and vehicles
to every Doctor and Paramedical / Nurses so
that Hospital services shall run efficiently and
smoothly.
It is on record that due to Road Blockage of
AMARNATH LAND ROW, the Valley fell short of
Medicines and Medicines were purchased to
keep the store inventory up dated. Further it was
followed by State Legislative Assembly Election
and then parliamentary elections when Valley
observed frequent strikes /bands curfews and
Hospital was run in spite of all these difficulties
without any extra budgetary support from the
Government, when this office has demand an
additional budget in all the units of
appropriation to meet out the liabilities but the
additionality was never given which compelled
this office to incur expenditure of Rs.
16,45,000/-.
CRMC No.179/2018 Page 25 of 30
Now, in order to satisfy the financial discipline it
was decided that an amount of Rs. 16,45000/-
will be recouped out of approved funds for the
year 2010-2011 without seeking any
additionality or creating any further liability.”
26. The aforesaid office memorandum is, inter-alia,
signed by two members of Legislative Assembly, namely,
Shri Mubarak Gul and Dr. Sheikh Mustafa Kamal. It is
clear from the said memorandum that the amount of
Rs.16.45 lacs was decided to be recouped out of approved
funds for the year 2010-2011. In the Case Diary, we have
another document which is signed, inter-alia, by the
aforenamed two MLAs and as per the said document, the
action taken by the Hospital Development Committee in
2008-2009 during Amar Nath land row while spending
Rs.16.45 lacs for purchase of essential drugs/P.O.L etc.
has been regularized/ratified. There are also
communications on record from Principal, Government
Medical College, Srinagar, addressed to the Secretary to
the Government, Health and Medical Education
Department, seeking regularization of expenditure of
Rs.16.45 lacs in respect of Hospital Development Fund.
27. From the aforesaid documents, it is clear that the
action of the petitioner of spending amount of Rs.16.45
lacs out of the Hospital Development Fund on patient care,
repairs, expenditure on account fuel etc. for ambulances
CRMC No.179/2018 Page 26 of 30
has been ratified by Hospital Development Committee. As
per the investigation conducted by the respondent
Investigating Agency, even the vouchers in respect of an
amount of Rs.16,83,913/ have been collected during the
investigation of the case, though the original vouchers are
stated to have been damaged/destroyed in the floods of
2014. Therefore, it is a case where after investigation of the
case it has been found that the petitioner has incurred
expenditure of Rs.16.45 lacs out of the Hospital
Development Fund in the interests of patient care and in
extraordinary circumstances which had arisen on account
of Amar Nath land row and his action in this regard has
been ratified by the Hospital Development Committee.
28. As per Government Order No.954-HME of 2000
dated 212.12.2000, Hospital Development Fund is meant
for effecting minor repairs/maintenance of hospital
concerned and the money out of this fund can be spent
with the approval of the Hospital Development Committee.
There may be procedural infractions on the part of the
petitioner while taking action of incurring expenditure out
of the Hospital Development Fund but that, by itself,
cannot be a ground to subject him to criminal prosecution.
29. The question, whether violation of rules and
departmental norms would amount to an offence under
CRMC No.179/2018 Page 27 of 30
the Prevention of Corruption Act, was considered by the
Supreme Court in the case of C. K. Jaffer Sharief vs.
State, (2013) 1 SCC 205. The Supreme Court in the said
case held as under:
“If in the process, the rules or norms
applicable were violated or the decision taken
shows an extravagant display of redundance
it is the conduct and action of the appellant
which may have been improper or contrary to
departmental norms. But to say that the same
was actuated by a dishonest intention to
obtain an undue pecuniary advantage will not
be correct. That dishonest intention is the gist
of the offence under Section 13(1)(d) is
implicit in the words used i.e. corrupt or illegal
means and abuse of position as a public
servant.”
30. In the present case, the prosecution records reveal
that the petitioner may have violated departmental norms
while incurring expenditure out of the Hospital
Development Fund but, nonetheless, the only intention of
the petitioner in doing so was to take care of extreme
urgency that had arisen on account of peculiar
circumstances which had prevailed pursuant to Amarnath
Land row and the said action of the petitioner was even
ratified by the Hospital Development Committee.
Similarly, the petitioner may have also been found lacking
in exercising a proper control over the accounts wing of
the hospital but because he was not the Drawing and
Disbursing Officer of those two particular accounts,
therefore, it cannot be inferred that he was a part of the
CRMC No.179/2018 Page 28 of 30
conspiracy in so far as embezzlement of funds out of those
two account heads is concerned. Mere lack of supervision
on the part of the petitioner cannot form a basis for roping
him in the conspiracy, particularly when he is not a
signatory to the account books pertaining to those two
account heads.
31. It is in the face of aforesaid facts and circumstances
that the both the Enquiry Committees have exonerated the
petitioner of the charges levelled against him and the
Government has only issued a warning against him on
account of his lack of supervision over the accounts wing.
In such circumstances, the ratio laid down by the
Supreme Court in Ashoo Surendranath Tewari’s case
(supra) would apply on all fours to the present case.
Therefore, the petitioner, on the basis of the material
collected by the Investigating agency during the
investigation of the case and on account of the fact that he
has been fully exonerated by the two enquiry committees
in the regular departmental proceedings, cannot be made
to suffer the criminal prosecution emanating out of the
impugned FIR. In these circumstances, this Court finds
the present case as the fit one for exercising its powers
under Section 482 of Cr. P. C for quashing the criminal
CRMC No.179/2018 Page 29 of 30
proceedings against the petitioner so as to secure the ends
of justice and to prevent abuse of process of law.
32. Accordingly, the petition is allowed and the
impugned FIR and the proceedings emanating therefrom
to the extent of petitioner only, are quashed.
33. The Case Diary be returned to learned counsel for
respondents.
(Sanjay Dhar)
Judge
Srinagar,
04.07.2025
“Bhat Altaf”
Whether the judgment is reportable: YES/NO
CRMC No.179/2018 Page 30 of 30