Delhi High Court
Guru Narayan Mishra vs Central Bureau Of Investigation & ... on 23 July, 2018
$~20 to 22
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 23rd July, 2018
+ CRL.M.C. 1250/2016 and Crl. M.A. 5359/2016, 5361/2016,
10361/2016, 8606/2018, 8607/2018
GURU NARAYAN MISHRA ..... Petitioner
Through: Mr. Babu Lal, Mr. Lokesh Kumar
and Mr. Harish Nigam, Advocates
versus
CENTRAL BUREAU OF INVESTIGATION
& ORS ..... Respondents
Through: Mr. Narender Mann, Spl. PP for
CGI with Mr. Manoj Pant, Advocate
Mr. Ajay Digpaul, CGSC and Ms. Madhuri
Dhingra, Advocates for R-2 & 3
+ CRL.M.C. 2209/2016 and Crl. M.A. 9298/2016 and
10366/2016
GURU NARAYAN MISHRA ..... Petitioner
Through: Mr. Babu Lal, Mr. Lokesh Kumar
and Mr. Harish Nigam, Advocates
versus
CBI ..... Respondent
Through: Mr. Narender Mann, Spl. PP for
CGI with Mr. Manoj Pant, Advocate
+ CRL.M.C. 1390/2017 and Crl. M.A. 5672/2017
GURU NARAYAN MISHRA ..... Petitioner
Through: Mr. Babu Lal, Mr. Lokesh Kumar
and Mr. Harish Nigam, Advocates
Crl. M.C. No.1250/2016 & ors Page 1 of 7
versus
CBI ..... Respondent
Through: Mr. Narender Mann, Spl. PP for
CGI with Mr. Manoj Pant, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. These three petitions have been filed by the same public servant
in relation to different orders of the Special Judge passed in the
context of the criminal case (CC 01/15) arising out of the First
Information Report (RC No.55A/89/CBI/ACB/New Delhi) involving
offences punishable under Sections 120B Indian Penal Code, 1860
(IPC), Sections 7 and 13 of Prevention of Corruption act, 1988, the
prayer being for this court to intervene and quash the said proceedings
and the said impugned orders passed therein, in exercise of the
inherent power of this court under Section 482 of the Code of
Criminal Procedure, 1973.
2. The FIR of the Central Bureau of Investigation (CBI) was
registered on 20.11.1989. It was based on the complaint of one Satish
Chand Gupta, a civil contractor. The petitioner was working in the
concerned department of the government as Junior Engineer at the
relevant point of time, one K.S. Warriach, being the Assistant
Engineer. It was alleged that in the context of certain work order that
had been awarded to the said contractor, illegal gratification was
demanded both by the petitioner and the said Assistant Engineer for
finalization of the second bill. It is further shown by the record of
investigation that the CBI arranged a trap in the course of which both
the petitioner and the said other public servant were apprehended,
evidence confirming demand and acceptance of bribe having been
gathered. The CBI, however, submitted a closure report (dated
25.11.2005) on 26.11.2005 pointing out certain discrepancies. The
said closure report was rejected by the Special Judge by her order
dated 09.03.2006 whereupon the CBI stood directed to conduct further
investigation. Nine years thereafter, CBI submitted a second closure
report (01/15) which was considered in the light of evidence that had
been gathered. By the order dated 07.08.2015, the Special Judge
rejected the closure request observing, inter alia, that the said second
report was verbatim the same as had been filed earlier in 2005,
expressing opinion to the effect that there were grounds to proceed
against the petitioner in as much as there was evidence to show that he
had accepted the money that had been offered during the trap, it
having been recovered statedly at his instance from his office table
drawer. The Special Judge, however, was unable to proceed further
since the CBI had not taken any steps for sanction for prosecution to
be obtained in terms of Section 19 of the Prevention of Corruption
Act, 1988.
3. By the aforesaid order dated 07.08.2015 which is assailed in the
first captioned petition, the Special Judge directed the CBI to place the
evidence gathered during investigation before the sanctioning
authority to consider as to whether sanction for prosecution was to be
granted.
4. The sanctioning authority i.e. the Director General, Central
Public Works Department (CPWD), by his order dated 02.02.2016,
accorded sanction for prosecution of the petitioner under Section 19 of
the Prevention of Corruption Act, 1988, which is also assailed in the
second captioned petition and, on that basis, CBI filed a charge-sheet
seeking prosecution of the petitioner on 22.03.2016 on which the
Special Judge took cognizance and issued process against the
petitioner for offences punishable under Sections 7 and 13(2) read
with Section 13(1)(d) of Prevention of Corruption Act, 1988. The
validity of the order for sanction for prosecution and the order
whereby summons were issued to the petitioner are challenged by the
second captioned petition.
5. The petitioner having been summoned as accused moved an
application before the Special Judge seeking dropping of proceedings
on the ground that in the disciplinary proceedings, also initiated
against him, he had already been exonerated, his submission being that
upon exoneration, the criminal action in the court of the Special Judge
was unwarranted and in the nature of abuse of process of the court.
He placed reliance on the rulings in P.S. Rajya Vs. State of Bihar,
(1996) 9 SCC 1; Radheshyam Kejriwal Vs. State of West Bengal and
Anr., (2011) 3 SCC 581; Lokesh Kumar Jain Vs. State of Rajasthan,
(2013) 11 SCC 130. The Special Judge, however, rejected the prayer,
by order dated 14.03.2017, basing his decision on the ruling of the
Supreme Court in State (NCT of Delhi) Vs. Ajay Kumar Tyagi, (2012)
9 SCC 685. The said order is challenged by the third captioned
petition.
6. At the hearing on these petitions, the learned counsel for the
petitioner raised only one plea viz. that in the face of exoneration in
the disciplinary action, the proceedings in the criminal case arising out
of FIR under the Prevention of Corruption Act, 1988 in the court of
the Special Judge cannot survive. It is the argument of the learned
counsel that the facts on the basis of which disciplinary action was
initiated, it having ended in exoneration, are same as the facts on the
basis of which the present proceedings have been initiated in the court
of the Special Judge. He also places reliance on Videocon Industries
Ltd. and Anr. Vs. State of Maharashtra and Ors., (2016) 12 SCC 315
whereby the view taken by a bench of three Hon'ble Judges in
Radheshyam Kejriwal (supra) was endorsed.
7. In Ajay Kumar Tyagi (supra), a bench of three Hon'ble Judges
of Supreme Court has ruled thus :
24. Therefore, in our opinion, the High court quashed
the prosecution on total misreading of the judgment in the
case of P.S. Rajya case. In fact, there are precedents, to
which we have referred to above, that 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 can not be rejected
on the basis of the evidence in the departmental
proceeding or the report of the Inquiry Officer based on
those evidence.
25. 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 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.
(emphasis supplied)
8. In the considered opinion of this court, the view taken by the
Special Judge at this stage of the process is correct. As was pointed
out by the learned counsel representing CBI, as is also taken note of
by the sanctioning authority in the order granting sanction, that the
exoneration in the departmental proceedings vide order dated
22.11.1995 by the Director General, CPWD was essentially based on
the then decision of the CBI (investigating agency) not to file charge-
sheet against the petitioner in the criminal court. It was a decision
influenced by the opinion indicated by the investigating agency.
There is nothing brought before this court in these proceedings to
show that the evidence led during the disciplinary inquiry was same as
the one presented before the criminal court on which dis-satisfaction
with the closure reports was recorded twice. In these circumstances,
mere dropping of the disciplinary action cannot automatically result in
dropping of the criminal action in the court of the Special Judge.
9. The opinion of the Special Judge that sufficient grounds exist to
proceed against the petitioner will have to prevail. It will, however, be
open to the petitioner to raise all defences as are available to him in
law at the time of consideration of the charge and further, if charge is
framed, during the trial.
10. There is no occasion at this stage for this court to intervene.
The petitions and the applications filed therewith are, thus, dismissed.
R.K.GAUBA, J.
JULY 23, 2018
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