Kaushal Kumar vs State Of U.P. And Another
2022 Latest Caselaw 14330 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on :- 12.10.2022
 
Delivered on :-19.10.2022 
 

 
Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 24054 of 2022
 

 
Applicant :- Kaushal Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sanjay Maurya,Manish Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Mr. Sanjay Maurya, learned counsel for the applicant, learned A.G.A. for the State.

2. Applicant has approached this Court to quash the entire criminal proceeding arising out of charge sheet dated 11.05.2019 in Case No.2416194/2019 (State Vs. Kaushal Kumar) arising out of Case Crime No.0051/2019, under Sections 420, 467, 468, 471, 409 I.P.C., P.S.- Rakabganj, District- Agra as well as summoning order dated 13.05.2019 passed by the SCJM, Agra pending in the Court of Special C.J.M., Agra.

3. In the present, after investigation, a charge-sheet was submitted wherein two witnesses were made proposed prosecution witnesses. However, statement of only one witness is placed on record as well as other important documents collected during investigation are also not brought on record meaning thereby this is nothing but selective filing, which is not appreciated by this Court.

4. Mr. Sanjay Maurya, learned counsel for the applicant has submitted that on same allegation departmental proceedings was also initiated in which after the departmental inquiry, punishment of dismissal from the service was awarded, the appeal and revision thereto were dismissed. However, challenge to the said order before this Court was allowed by way of judgment passed by a co-ordinate Bench of this Court on 17.10.2021 which was challenged by the State in a Special Appeal,  however, the same was also dismissed.

5. Learned counsel for the applicant has further submitted that since the applicant has been now exonerated from all the charges framed in departmental proceedings, therefore, criminal proceeding can be quashed and placed reliance upon the judgment passed by Hon'ble the Supreme Court in the case of Ashoo Surendranath Tewari Vs. The Deputy Superintendent of Police, EOW, CBI & ANR : (2020) 9 SCC 636 wherein the Supreme Court has made the below-mentioned observation:-

" 12. After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:- (Radhey Shyam Kenwal Case (2011) 3 SCC 58.

"38. The ratio which can be culled out from these decisions can broadly be stated as follows:-

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings 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 proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."

13. It finally concluded:

"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for 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."

From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated"

6. The aforesaid submissions made by learned counsel for the applicant were opposed by the learned A.G.A. stating that the evidence is still to be led before the trial Court and the applicant was exonerated by this Court, though punishment was awarded in Departmental Inquiry, therefore, criminal proceeding initiated against the applicant cannot be quashed.

7. I have heard learned counsel for the parties and perused the record.

8. A co-ordinate Bench of this Court vide judgment and order dated 07.10.2021 in writ petition being Writ A No.1384 of 2020 (Kaushal Vs. State of U.P. & 4 others) while quashing the orders passed in departmental proceedings against the applicant has held as under:-

"Considering the submissions made at the bar what emerges is that the sole charge framed against the petitioner, Kaushal was that he supplied forged allotment orders to persons and pursuant to the said forged allotment orders, the persons were in unauthorised occupation of the premises. It is worthy to notice that the forgery was alleged to have been committed in the allotment orders that is a ''document', which was given to the allottees who resided in the said houses pursuant to the said orders in case of Kaushal. There were no charge that the petitioner had siphoned off or committed theft of the register in the office of the Senior Superintendent of Police or had stolen the forged allotment order from the said persons, thus, without there being any charge against the petitioner, in respect of, siphoning off or tempering with the allotment orders/registers, it was incumbent upon the respondents to have placed the said allotment orders as an evidence to carry home the charge against the petitioner which was admittedly not done. To establish forgery of a document, it is essential that the document should be in existence, which in the present case has not seen the light of the day. Assuming the findings that the register pertaining to the application for allotment and the register pertaining to house allotment orders was destroyed by the petitioner, there should have been specific charge to that effect which admittedly is not a charge levelled against the petitioner.

The Court has also gone through the oral testimonies which do not categorically state that there was any tempering or forgery in the allotment orders given to the three persons. The only statement of the said persons is that the allotment order was given by the petitioner. The issuance of a forged allotment order or otherwise could have been proved only in the presence of allotment order being on record and after recording the evidence or testimonies of the author of the said document which has not been done in the present case, as admittedly the officer whose signatures were alleged to have been forged or the Stenographer or Personal Assistant of the Senior Superintendent of Police, Agra were not even summoned as witness.

On perusal of the evidence, it is clear that none of the witnesses supported the charge, as such, there is no evidence to establish that the petitioner could be held guilty of issuing forged allotment orders in favour of the three persons as alleged. The conclusion of the Enquiry Officer, on the reading of the evidence, is clearly perverse to that extent .

The enquiry otherwise also suffers from the vice of non-payment of subsistence allowance after the suspension of the petitioner which is clearly in violation of Article 21, rights of the petitioner.

Although it is true that the nature of evidence as applicable in criminal cases is not to be applied in the case of disciplinary proceedings, however, it is essential that the charge levied should be established on preponderance of probabilities which has not been done in the present case as none of the witnesses has even stated that there was any forgery in the allotment order issued to them which was said to be done by the petitioner.

The proceedings against the petitioners are further bad in law in view of the judgement of the Supreme Court in the case of Managing Director, ECIL Hyderabad vs. B. Karunakar (supra) (1993) 4 SCC 727 had admittedly no show cause notice was served after the enquiry report, thus the proceedings are contrary to the law laid down by the Supreme Court in the case of M.D. ECIL (supra)."

9. As referred in the aforesaid order, the document alleged to be forged i.e. allotment letter was not placed on record in departmental proceeding, however, the entire case diary has not been placed before this Court as the applicant has filed selective documents, therefore, the Court cannot come to definite conclusion that forged document is not on record of the case diary also.

10. The Supreme Court in Ashoo Surendranath Tewari (Supra) has held that in case of exoneration, however, on merit where the allegation was found to be not sustainable at all and person held innocent, criminal prosecution on the set of facts and circumstances cannot be allowed to be continue reason being higher standard of proof in criminal cases, however in absence of all documents which are part of case diary and were placed before the Court at the time of cognizance, this Court cannot venture to consider arguments based on surmises and conjuncture and come up to a conclusion that since this Court has exonerated the applicant, the criminal proceeding may also be quashed.

11. There is another factor which goes against the applicant that cognizance was taken on 13.05.2019, however, one or another reason, trial Court does not proceed and it appears that till date even the charges were not framed and on many dates the applicant does not appear before the Court. It appears that applicant wanted to linger on the criminal case so that his writ petition be decided.

12. The outcome of the above discussion is that in absence of entire material of the case diary including statements of witnesses recording during investigation and documents being not filed along with the application, therefore, without considering the same, this Court cannot come to the conclusion that the ground on which the coordinate Bench of this Court has exonerated the applicant would be sufficient to quash the criminal proceeding pending against him. In these circumstances, to quash the criminal proceedings the Court has to consider that criminal prosecution was on same set of facts but it could not be done in present facts and circumstances of the case as entire material was not placed on record.

13. In view of the above, this Court cannot allow the application filed on behalf of the applicant.

14. It is accordingly, dismissed.

Order Date :- 19.10.2022

Sachin/AK