Bombay High Court
Anil Raibhanji Sarve And Another vs Central Investigation Department ... on 29 July, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
1 apl613.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.613/2024
1. Anil Raibhanji Sarve,
aged 60 years, Retd. Head Constable, RPF,
Central Railway, R/O, Sai Nagar No.2,
Hudkeshwar Road, Nagpur-440034.
2. Peter Colleghan Alexander Garvin,
aged 60 years, Retd. Inspector, RPF,
R/O, Anant Apartment, Flat No. 5/3,
Plot No. 68, Khare Town, Dharampeth,
Nagpur-440010. .....APPLICANTS
...V E R S U S...
1. Central Investigation Department,
(Anti-Corruption Bureau), Through,
D.I.G., C.B.I., Nagpur, 23, Telankhedi Road,
Wasurkar Lay out, Civil Lines, Nagpur-440001.
2. Union of India, through, Secretary,
Ministry of Home Affairs, New Delhi- 110001.
3. Nitin Sitaram Meshram,
Samta Nagar, Ward no.4, Wardha-442001 ...NON APPLICANTS
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Mr. B. Lahiri, Advocate for applicants.
Mr. P. K. Sathianathan, Advocate for non applicant No.1.
Mr. P. Navlani, Advocate for non applicant No.2.
Ms S. Jadhao, Advocate for non applicant No.3.
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CORAM:- ANIL L. PANSARE AND M. M. NERLIKAR, JJ.
DATED :- 29.07.2025
ORAL JUDGMENT (Per: Anil L. Pansare, J.)
Issue Rule, returnable forthwith. Mr. P. K. Sathianathan,
learned counsel waives service for non applicant No.1, Mr. P. Navlani,
learned counsel waives service for non applicant No.2 and Ms S.Jadhao,
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learned counsel waives service for non applicant No.3. With consent of
learned counsel for the parties, the application is taken up for final
hearing.
2. The applicants have been put to trial under Sections 7 and
13 of the Prevention of Corruption Act, 1988 in Special Case
No.3/2016. Argument is that the departmental inquiry was commenced
against the applicants for same charges and detailed inquiry was
conducted. Various witnesses were examined before the inquiry officer.
Opportunity to cross-examine was also given. Witnesses examined in
the departmental inquiry are the same which the prosecution intends to
examine in the trial. The inquiry officer has considered the evidence
and documents in detail and arrived at a finding that the charges
against the applicants were not proved. Conclusion in the departmental
inquiry reads thus:
"11. CONCLUSION:
After going through the complete Enquiry in
the subject Departmental Case, the Examinations and
Cross Examinations of the Ps, All the Exhibits and the Final
Statements of both the 'Parties Charged' it appears that
none of the 'Parties Charged' had expressly demanded the
bribe amount of Rs.5000/- as alleged in the complaint of
Shri Nitin S Meshram. The story told by both the 'Parties
Charged' that the complainant's wife was a Cancer patient
and Inspector Peter had therefore compassion for the
complainant's family and therefore he gave him Rs.6000/-
as a personal loan and that he was repaying the partial
loan as Rs.5000/- and promising to pay the remaining
Rs.1000/- in the next month may or may not be true. The
technical lacuna like unsigned FIR, absence of the
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complainant in Post Trap formalities, not turning up of the
key prosecution witness the CBI Trap Laying Officer, the
Panchas not confirming whether the right hand which was
washed after the trap was of Inspector Peter's or otherwise
creates so many doubts about acceptance of bribe amount
of Rs.5000/- by Inspector Peter. Moreover, there is no
demand of bribe of Rs.5000/- from the side of Inspector
Peter. When there was no demand there cannot be
acceptance too. About Head Constable Anil; Sarve, the
second 'Party Charged' has clearly neither demanded nor
accepted the bribe amount of Rs.5000/-. The second
charge of demanding Rs.3500/- as his share of bribe is also
not substantiated.
The evidences that have come before me
during the Departmental Enquiry are not very clear and
create lot of doubts. The balance of convenience and the
benefit of doubts should go to the 'Parties Charged'. The
basic principle of Jurisprudence is "No innocent person
should be punished only on the basis of certain doubts". In
Department's case of the preponderance of probabilities
should be such that a prudent person should feel that the
'Party Charged' must have committed the offence.
Therefore, I conclude that both the 'Parties
Charged' i.e. IPF shri Peter Garvin and Head Constable
Shri Anil Sarve are found "NOT GUILTY" of the charges
levelled against them in the subject Charge sheet."
3. As could be seen, the finding that the applicants are not
guilty of the charges levelled against them, is based on preponderance
of probabilities. There is no dispute that the applicants are being tried
for same charges before the Special Judge.
4. Counsel for the applicants has invited our attention to the
judgment of the Supreme Court in the case of Ashoo Surendranath
Tewari .VS. The Deputy Superintendent of Police, EOW, CBI & Anr.;
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[(2020) 9 SCC 636]. The Supreme Court has relied upon its earlier
judgment in the case of Radheshyam Kejriwal Vs. State of West Bengal
and anr.; (2011) 3 SCC 581 , wherein the Court, after having referred to
the various judgments, culled out the ratio in following terms:
"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."
5. Thus, the Supreme Court in the year 2011 itself has held
that in case of exoneration on merits in adjudication proceedings,
where the allegation is found to be not sustainable at all and the person
is held innocent, criminal prosecution on the same set of facts and
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circumstances cannot be continued. The only requirement is that the
allegations in adjudication proceedings as well as proceedings for
prosecution is/are identical and the exoneration of the person
concerned in the adjudication proceedings is on merits.
6. We find that, in the present case, the allegations against the
applicants in the departmental proceedings as well as criminal
prosecution are identical. The non applicants have not disputed such
status. What non applicant No.1's counsel has done is that he has
referred to the judgment of the Supreme Court in the case of State of
NCT Vs. Ajay Kumar Tyagi; [2012 AIR SCW 4815] , to contend that the
exoneration in departmental proceeding ipos facto would not lead to
the acquittal of the accused in criminal case.
7. We have gone through the said judgment to find that the
judgment passed in Radheshyam's case, has been not considered. We
have also noticed that the view taken in Radheshyam's case has been
followed in various other judgments by the Supreme Court, including
the judgment which is referred to by the applicants' counsel which is
passed in the year 2020. Thus, there are consistent views on this point
which run in tune with the law laid down in Radheshyam's case.
8. It will be worth mentioning here that the prosecution has
examined its first witness in the trial before the Special Judge. The
witness is informant. Learned counsel for applicants submits that the
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witness has supported theory of the applicants. Counsel for informant is
present, who would agree with the said proposition. Thus, the prime
witness has not supported the prosecution story.
9. That being so, since the charges levelled against the
applicants in departmental proceeding and criminal prosecution are
identical and further since the witnesses are the same, the applicants
have made out a case for grant of relief. The continuation of
prosecution in such a situation, where the final outcome is sealed,
would amount to abuse of process of law. Thus, we find no reason why
should criminal proceedings be continued.
10. The application is accordingly allowed in terms of prayer
clause (a), which reads thus:
"(a) Quash and set aside criminal proceeding
lodged against the applicants in the Court of Hon'ble
Additinoal Sessions Judge, Wardha in Special Case No.03
of 2016 under FIR No.RC0282015A0010, dated
29.09.2015."
Rule is made absolute in the above terms.
(M. M. Nerlikar,J.) (Anil L. Pansare, J.)
kahale
