Jharkhand High Court
Biswajit Gorai vs The State Of Jharkhand on 20 September, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1777 of 2021
Biswajit Gorai ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Manoj Tandon, Advocate
Ms. Sneha Kumari, Advocate
Ms. Neha Bhardwaj, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
8/Dated: 20/09/2022
Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mrs.
Priya Shrestha, learned counsel for the State.
2. This criminal miscellaneous petition has been filed for quashing of entire
criminal proceeding including order taking cognizance dated 05.12.2018 in connection
with Dumka (Town) P.S. Case No. 74 of 2017, corresponding to G.R. No. 357 of 2017,
pending in the Court of learned Judicial Magistrate, Ist Class, Dumka.
3. F.I.R. has been lodged alleging therein that by departmental letter dated
12.04.2017 the matter was examined in connection with the order dated 25.01.2017
passed by the Hon'ble court in W.P.(S) No. 2414 of 2009 and W.P. (S) No. 2415 of
2009. The Committee submitted its report in terms of enquiry report where it was
found that the appointment of this petitioner on the post of clerk in Primary Health
Centre, Banskuli, Raneshwar, Dumka, the then Clerk in Civil Surgeon Office, Dumka
was illegal. This petitioner has been receiving salary for years together from State
Exchequer by committing forgery for which he was not entitled to and in the light of
the same the petitioner was removed from service and his name was also struck off
from the working strength from the office of Civil Surgeon, Dumka and it was declared
that the petitioner would not be entitled for any post in future in the Health
Department and therefore, Officer-in-Charge, was requested by the Civil Surgeon-
cum-Chief Medical Officer, Dumka to lodge the F.I.R.
4. Mr. Manoj Tandon, learned counsel appearing for the petitioner submits
that the petitioner was appointed on 01.04.1988 on the post of vaccinater by the
competent authority and time to time the services of the petitioner was found to be
in order and therefore his pay was revised as per the Pay Revision Committee reports.
He further submits that on the ground of taking payment illegally the petitioner was
terminated by order dated 27.04.2017 vide annexure-3 to this petition. He further
submits that the said termination order was challenged before this Court in W.P(S)
No. 2776 of 2017 which was allowed vide order dated 09.03.2021 whereby
termination order of the petitioner has been set aside by this Court. He further
submits that pursuant to writ court's order the authority concerned implemented the
said order and the petitioner has been reinstated in the service by order dated
20.04.2021 vide annexure-5 to this petition. He further submits that writ court's order
has not been challenged by the State and the said order has been implemented, to
allow the criminal proceeding against the petitioner would amount to abuse of
process of law.
5. On the other hand, Mrs. Priya Shrestha learned counsel for State
submits that there are allegations against the petitioner of taking payment illegally
that is why F.I.R. has been lodged which has been investigated thereafter the learned
court has taken cognizance.
6. In view of above submissions of the learned counsel for the parties, the
Court has gone through the materials on record. The F.I.R. has been lodged alleging
therein that fraudulently payment has been obtained by the petitioner. The learned
court has taken cognizance after submission of chargesheet. The petitioner has
moved before this Court in W.P.(S) No. 2776 of 2017 in which he challenged
termination order and the said termination order was passed on the same ground.
The said writ petition was allowed by order dated 09.03.2021 and termination order
was set aside and the said order has been implemented by order dated 20.04.2021.
The petitioner has been reinstated in service. The writ court's order attained its finality
that is why the respondent-State reinstated the petitioner in service. The termination
order was on the same charge which was subject matter in the writ petition. F.I.R. has
been lodged on the same charge. There is no contravention of the provisions of the
Act in the adjudicating proceedings, the trial of the person concerned shall be an
abuse of the process of the court as held by the Hon'ble Supreme Court in the case of
"Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW,
CBI and Another" reported in (2020) 9 SCC 636 wherein paras 13 and 14 the
Hon'ble Supreme Court has held as under:-
13. It finally concluded (Radheshyam Kerjriwal case, SCC p. 598, para 39)
"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.
14. 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."
7. The Court has perused the cognizance order dated 05.12.2018 and finds
that order taking cognizance is also bad in law. What are the prima facie materials
against the petitioner, has not been disclosed in the said order. In view of applying
the aforesaid judgment in the case of Ashoo Surendranath Tewari (supra),
chance of conviction in criminal trial involving the same facts appears to be bleak
as the petitioner has been reinstated in service by the respondent-State.
8. In view of the aforesaid facts, entire criminal proceeding including order
taking cognizance dated 05.12.2018 in connection with Dumka (Town) P.S. Case No.
74 of 2017, corresponding to G.R. No. 357 of 2017, pending in the Court of learned
Judicial Magistrate, Ist Class, Dumka, are hereby quashed.
9. This petition stands allowed and disposed of. Interim order is vacated.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/
