Sampurna Nand Tiwari vs State Of U.P. Thru. Prin.Secy., ...
2015 Latest Caselaw 2914 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

1.      This petition seeks issuance of a writ in the nature of certiorari  for quashing Case Crime No.0259 of 2015, under Sections 409, 419, 420 I.P.C., Police Station Tarun, District Faizabad.
 
2.     In view of  concurrence of the counsel for the parties, this petition is being disposed of at this stage.
 
3.     Perusal of the impugned F.I.R. indicates that the criminal proceedings have been initiated in context of observations made in award dated 16.1.2015 rendered by Lokpal, Mahatma Gandhi National Rural Employment Guarantee Act, Faizabad (for short 'MGNREGA'), and an order passed by this Court dated 15.5.2015.   
 
4.    The award has been placed on record as Annexure No.2.   In the award, it has been recorded that purportedly, the petitioner and other accused embezzled funds meant for spending in MGNREGA scheme. Certain goods were purchased without maintaining any vouchers/ registers.  Certain goods allegedly were purchased for which there was no provision under the MGNREGA scheme.  Under the circumstances, the petitioner and other accused have committed offence.   Criminal proceedings be initiated. 
 
5.     Order passed by this Court dated 15.5.2015 is available on record as Annexure  No.3.  The order has been passed  in Writ  Petition No.4098 (M/B)  (PIL) of 2015 : Bali Ram Vs. State of U.P. and others, in the following terms :-
 
"The petitioner has stated that the irregularities committed by the respondents in development work have been investigated and the respondent nos. 4 to 11 have been held guilty in award dated 16 January 2015 passed by the Lokpal, Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), Faizabad. On the basis of investigation report, the Lokpal, MGNREGA has recommended for necessary action to be taken against them but till date, as has been averred by the petitioner, no action has been taken. 

In view of the aforesaid discussion, we issue direction to the District Magistrate, Faizabad to initiate necessary proceeding in terms of award dated 16 January 2015 passed by the Lokpal, MGNREGA, Faizabad.

The writ petition is, accordingly, disposed of." 

6.      Perusal of the above extracted order indicates that a direction has been issued to District Magistrate, Faizabad to initiate necessary proceedings in terms of award dated 16.1.2015 passed by Lokpal, MGNREGA, Faizabad.  

7.   The contention of learned counsel for the petitioner is that award dated 16.1.2015 rendered by Lokpal, MGNREGA is the basis of initiating impugned criminal proceedings. The said award, however, is subject matter of challenge in civil jurisdiction in Writ Petition No.4292 (S/S) of 2015. In case the petitioner succeeds on the civil side, award dated 16.1.2015 would be quashed. Irreparable injury would be caused to the petitioner if criminal proceedings are allowed to go on. Under the circumstances, the impugned criminal proceedings be quashed.

8. It has been argued that civil and criminal proceedings in regard to common incident/transaction cannot continue. Order passed by a court of law on the civil side will prevail over criminal proceedings/order.

9. We have taken note of the fact that order passed by this court dated 19.8.2015 (Annexure-4) in Writ Petition No.4292 (S/S) of 2015 (supra) came to be passed, in view of an earlier order dated 31.3.2015 passed by this Court at Allahabad in Writ (C) No.16887 of 2015. The said earlier order has been extracted in order dated 19.8.2015 (supra).

10. On perusal of order dated 19.8.2015, we find that reference to order passed by the Division Bench in Writ Petition No.4098 (M/B) (PIL) of 2015 (supra), extracted above, was not made.

11. The issue whether simultaneous civil and criminal proceedings can continue in regard to a common incident/ transaction, has been considered by the Hon'ble Supreme Court of India in (2005) 4 SCC 370 : Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another (5 JJ), Paragraph 32 of the said judgement reads as under :-

"32.Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. The State of Madras and others give a complete answer to the problem posed [AIR 1954 SC 397] (AIR p. 399, paras 15-16) :

"(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

(16) Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

(Emphasis supplied by us)

12. From the above extracted portion of the judgement rendered in Iqbal Singh Marwah's case(supra), it becomes evident that the standard of proof required in civil proceedings and criminal proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case, the entire burden of proving that offence has been committed lies on the prosecution, and proof beyond reasonable doubt is required to be shown to the court. Because both the cases have to be decided on the basis of the evidence adduced in each of the cases, findings recorded in one proceeding cannot be treated as final or binding on the other.

13. It has further been elucidated by the Hon'ble Supreme Court of India that criminal matter should be given precedence. Civil litigation often drags on for long time whereas it is undesirable that a criminal prosecution should wait. It has been suggested that in case criminal prosecution is stayed, evidence is likely to be lost or destroyed. Public interest demands that the criminal justice should be swift and sure ; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with fair and impartial trial. It has further been said that this however, is not a hard and fast rule. Special circumstances might require a different course of action. In given circumstances, it might be expedient to stay a particular proceeding.

14. Applying the above noted principle of law to the facts of this case, we find that at the time of consideration of facts and circumstances of the matter being adjudicated, the Lokpal found interpolation of record and commission of certain cognizable offence. Under the circumstances, it has been observed by the Lokpal that criminal proceedings be initiated.

15. In the considered opinion of this court, in case a matter is being taken up by a public authority/ public servant, and in the course of proceedings, facts and circumstances prima facie indicate commission of cognizable offence, ordinarily, it is desirable for such authority to issue appropriate directions to initiate criminal proceedings.

16. Perusal of provisions of Section 39 of Code of Criminal Procedure also shows that a duty has been cast on every person aware of commission of an offence or intention of any other person of committing offence, to give information to the nearest Magistrate or police officer of such commission or intention. The relevant portion of Section 39 Cr.P.C. Reads as under :

"39. Public to give information of certain offences.-- (1). Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely:-

(i) ................

(ii) ................

(iii) ................

(iv) .................

(v) .................

(v-a). .....................

(vi) ....................

(vii) .....................

(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.)

(ix) ................

(x) .....................

(xi) .....................

(xii) ......................

shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.

(2). For the purposes of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India."

( Emphasised by us)

17. Challenge to the award dated 16.1.2015 on the civil side is entirely on different grounds. In the course of considering the issue, the Lokpal, MGNREGA came across certain events/facts which prima facie indicated commission of cognizable offence. Under the circumstances, it has been suggested by Lokpal, MGNREGA that criminal proceedings be initiated. Consequently, impugned proceedings have been initiated. The action of the Lokpal is also in conformity with the provisions of Section 39 Cr.P.C., as extracted above. Under the circumstances no jurisdictional error can be traced in the action of Lokpal, MGNREGA issuing directions for initiating criminal proceeding.

18. This Court, under the circumstances, is not in a position to accept the contention of learned counsel for the petitioner to the effect that because operation of the award passed by Lokpal, MGNREGA, has been stayed, even the criminal proceeding initiated in view of the observations in the award, be stayed or quashed. De hors the jurisdiction of Lokpal, MGNREGA, in case offence has been committed, the accused must be brought to book. It is for the investigating agency to consider, after collecting evidence, whether offence has been committed. In case evidence is deficient, a report under Section 169 Cr.P.C. would be prepared. In case sufficient evidence is collected in the course of investigation, a report under Section 170 Cr.P.C. would be filed.

19. We find that the offence itself is of serious nature of interpolating public records so as to dishonestly misappropriate public money (Section 409 I.P.C. Read with Section 405 I.P.C.) alongwith cheating. The offence becomes even more serious because the petitioner purportedly was entrusted with dominion over public funds, however, through dishonest actions, has misappropriated them.

20. Investigation is still at inceptive stage, and therefore it cannot be determined that no such incident/transaction took place or that the petitioner is not involved in commission of the offence.

21. In view of the above, we see no irregularity in initiating investigation under the impugned F.I.R.  

22.   Considering the totality of the facts and circumstances of the case, we find no ground to interfere in the investigation process.  It is settled law that civil and criminal proceedings in regard to an incident can co exist.  In case in the course of some proceedings pending before an authority/ public authority/public servant, certain facts and circumstances are brought to the notice of that authority indicating prima facie commission of cognizable offence and on the basis of that information, criminal proceedings are directed to be initiated, jurisdictional error cannot be spelt in the action of the authority in directing initiation of criminal proceedings.

23. For the above given reasons, this petition is dismissed.

Order Date :- 6.10.2015/Shukla