Mohd.Aslam Khan vs State Of U.P.
2013 Latest Caselaw 4993 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R           
 
Reserved     
 
                                                                            
 
                    High Court of judicature at Allahabad,
 
                               Lucknow Bench, Lucknow
 
			        
 

 
  Criminal Miscellaneous No. - 644 of 2007
 
(U/s 482 Cr.P.C.)
 

 
Mohd. Aslam Khan, aged about 54 years, son of Late Asghar Khan, Accounts Clerk, Nagar Palika Parishad, Bilgram, district, Hardoi, resident of Mohalla-Malkanth, Qasba, Post Office, Police Station, Pargana and Tehsil-Bilgram, District Hardoi
 
                  ..................... Applicants/Petitioners
 
                                            Vs.
 
State of U.P.       	     ....................... Opposite Parties
 
 
 
Counsel for Applicant :- Sri Mohd.Adil Khan, Sri Mohiuddin Khan 
 
Counsel for Opposite Party :- Govt. Advocate, 
 

 
Hon'ble Vishnu Chandra Gupta, J.

Judgement

1. By means of this petition under Section 482 Cr.P.C. the petitioner who was the then accounts clerk challenged the prosecution under Sections 409, 406 IPC in Criminal Case No. 6423 of 2005 relating to Case Crime No.261 of 2005, under Sections 409, 406 IPC, P.S.-Bilgram, District Hardoi pending in the court of Chief Judicial Magistrate, Hardoi in pursuance of issuing summon to the petitioner in the light of the chargesheet filed by the police.

2. Relevant facts for deciding the case are that some irregularities in construction carried out by Nagar Palika Parishad, Bilgram was noticed. A preliminary inquiry was conducted under the instruction of the State Government. A report has been submitted along with letter dated 20th October, 2005 issued by Secretary, Urban Development Department, State of U.P. A decision has been taken on the basis of aforesaid report that first information report be lodged against the wrong doers found prima facie guilty in the preliminary report. In furtherance of this order a first information came into existence on 31.10.2005 (annexure 2 to this petition) against 14 persons including the present petitioner. The investigation was carried out and ultimately chargesheet has been filed against petitioner and three others under sections 409 and 406 IPC. The petitioner was summoned to face the trial. This order of summoning as well as proceedings initiated against the petitioner in pursuance of the aforesaid chargesheet has been challenged in this petition.

3. The ground for challenge is that the petitioner has been exonerated in departmental proceedings initiated against him on the identical charges which are subject matter of the present prosecution. Hence, the continuance of the present prosecution against the present petitioner would be an abuse of process of law.

4. The question before this Court is that after exoneration of the petitioner in the departmental proceeding prosecution of the present petitioner may be quashed?

5. I have heard learned counsel for the petitioner and learned AGA.

6. Learned counsel for the petitioner in support of his contention relied upon judgments of the Apex Court in P.S.Rajya Vs. State of Bihar 1996 (9) SCC 1 and in Radheshyam Kejriwal Vs. State of West Bengal and another 2011 (3) SCC 581. It has been contended by the learned counsel for the petitioner on the strength of these authorities that if for identical charges the petitioner has been exonerated the criminal prosecution cannot be allowed to continue.

7. Counter affidavit has been filed by the State and alleged therein that petitioner has been found prima facie guilty for complaint No.2, 7, 12, 14 which has been formed part of the first information report and these changes have been substantiated during course of investigation. Rejoinder affidavit has been filed annexing therein the report of departmental proceeding wherein he was exonerated from the charges levelled against him and the letter by which the same was accepted by the directorate concerned. Consequently departmental proceedings were terminated without inflicting any punishment.

8. It has been submitted by learned AGA that mere exoneration in departmental proceeding would not sufficient to drop the proceedings pending before a competent criminal court. The adjudication of the departmental proceeding would not be an adjudication by a competent court hence the prosecution cannot be quashed.

9. I have gone through the record of this case and the law referred by the counsel for the petitioner in Radheshyam Kejriwal' case (supra). The Apex Court by majority view after considering the several authorities of the Hon'ble Supreme Court propounded the following ratio in para 38 and 39;

"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; and

(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 can not be allowed to continue underlying principle being the higher standard of proof in criminal cases.

39. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be an abuse of the process of the court."

10. In P.S. Rajya's case (supra) in para 17 given certain facts which are reproduced hereinbelow;

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.

11. In view of these authorities and ratio propounded therein three things has to be considered by this Court.

(i)Whether the charges levelled in the departmental proceedings were identical to the charges found prima facie proved during investigation conducted in a criminal case?

(ii)The prosecution shall continue or not against the person after exoneration in departmental proceedings would be considered on the findings recorded in the departmental proceedings and in the light of the facts of criminal case?

(iii) In case the exoneration in departmental proceedings is on technical ground and not on merit the prosecution shall continue.

12. It is well settled that in case of exoneration on merit in departmental proceedings if based on the finding that allegation levelled against the person are found to be not sustainable at all and the person found innocent the criminal prosecution on the same set of facts and circumstances normally could not be allowed to continue. It is also well settled that higher standard of proof is required in criminal case to substantiate the charges beyond all reasonable doubt. However, the departmental proceedings are decided on the preponderance of probability.

13. The law it is necessary to look into the factual matrix of the case.

14. Admittedly, the documents relied upon by the prosecution has not been filed along with this petition. For what latches and acts of the petitioner the petitioner was found responsible for prosecution during investigation is not before this Court.

15. The report of inquiry is there but merely by perusing of the inquiry report it cannot be concluded that the report exonerating the petitioner is based on identical charges which are levelled against the petitioner in criminal case. In absence of the those records and other cogent evidence collected during investigation, it would not be proper to this Court to quash the entire proceedings pending against the petitioner. The petitioner have a right to raise the protest and take all those plea which he has raised before this Court, before trial court. The trial court before further proceeding in the matter may decide the same but not later than than the stage of framing of the charges.

16. In view of above, the petition lacks merit and is accordingly dismissed.

17. However, if petitioner Mohd. Aslam Khan surrenders before the court below within two weeks from today and move bail application, the same shall be considered and disposed of expeditiously in accordance with law and also keeping in view the directions contained in the judgment delivered by the Apex Court reported in 2009 (3) ADJ 322 (SC) (Lal Kamlendra Pratap Singh Vs. State of U.P.).

18. For two weeks or till the date of surrender, whichever is earlier, no coercive steps shall be taken against the petitioner.

19. With this observation, the petition is finally disposed of.

Date:- 08.08.2013

Ajay