Karnataka High Court
Sri. D. Nagaraja vs The State By Lokyuktha Police on 21 November, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC:41818
WP No. 22955 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 22955 OF 2023 (GM-RES)
BETWEEN:
SRI. D. NAGARAJA,
S/O LATE DODDAIAH,
AGED ABOUT 59 YEARS,
WORKING AS HEAD ACCOUNTANT,
SUB TREASURY OFFICE, BELTHANGADY,
DAKSHINA KANNADA DISTRICT 574 214.
...PETITIONER
(BY SRI. SATISH K, ADVOCATE)
AND:
THE STATE BY LOKYUKTHA POLICE
REPRESENTED BY ITS POLICE INSPECTOR,
CHIKMAGALUR 577 101.
...RESPONDENT
(BY SRI. B B PATIL, ADVOCATE)
Digitally signed by B
K
MAHENDRAKUMAR THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
Location: HIGH CONSTITUTION OF INDIA, 1950 READ WITH SECTION 482 OF THE
COURT OF
KARNATAKA CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO CALL FOR
RECORDS FROM THE RESPONDENT QUASH THE IMPUGNED CHARGE
SHEET DTD 01.09.2017 FILED BY THE RESPONDENT BEFORE THE
HONBLE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKAMAGALUR IN SPECIAL CASE NO.106/2017 FOR THE OFFENCES
U/S 7 AND 13(1)(d) OF PREVENTION OF CORRUPTION ACT, 1988
ANNEXURE-E AGAINST THE PETITIONER/ACCUSED AND ALL
FURTHER PROCEEDINGS THEREON IN SPECIAL CASE NO.106/2017
PENDING BEFORE THE HONBLE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, CHIKAMAGALUR ANNEXURE-F AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:41818
WP No. 22955 of 2023
ORDER
The petitioner is charge sheeted for the offences
punishable under Sections 7 and 13 (1) (d) of Prevention of
Corruption Act, 1988.
2. The allegation against the petitioner is that he had
taken gratification amount to clear the medical bills of the
defacto-complainant who had remained absent for two months
as he was suffering from Jaundice. After registering the FIR,
the trap was conducted and in the said trap, the petitioner was
caught red handed while accepting the gratification amount.
3. The learned counsel for the petitioner submits that
against the same set of allegation, a departmental enquiry was
conducted by the Lokayukta and the Enquiry Officer, after
conducting the enquiry, submitted a report stating that the charge
against the petitioner is not proved and exonerated the petitioner
of the charges leveled against him on merits, therefore, the
petitioner having been exonerated on merits in the departmental
enquiry, the continuation of the criminal proceedings will be an
abuse of the process of law.
4. In support, he places reliance on the decision of the
Co-ordinate Bench of this Court in Crl.P.No.391/2017 and other
connected cases disposed of on 16.3.2023 and also the decision of
the Hon'ble Apex Court in the case of Ashoo Surendranath
Tewari vs. Deputy Superintendent of Police, EOW, CBI and
another reported in (2020) 9 SCC 636.
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5. On the other hand, learned counsel for respondent
Lokayukta submits that, merely because the petitioner has been
exonerated in the departmental enquiry, it would not lead to
exoneration or acquittal in criminal cases.
6. Considered the submissions made by the learned
counsel for the parties.
7. The Hon'ble Supreme Court in the case of
Radheshyam Kejriwal Vs. State of West Bengal, reported
in (2011) 3 SCC 581 has laid the principle which reads thus:
"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
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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."
8. The Hon'ble Supreme Court consisting of three
learned Judges in the case of the State (NCT of Delhi) (supra)
without reference to the decision in the case of Radheshyam
Kejriwal (supra) has held that the High Court misread the
judgment in P S Rajya -vs- State of Bihar ((1996) 9 SCC 1))
and exoneration in departmental proceeding ipso facto would
not lead to exoneration or acquittal in a criminal case. It was
further noted that the decision of P S Rajya case which was
rendered by the Bench consisting of two learned Judge was
distinguished in a subsequent decision in the case of State -vs-
L. Krishnamohan which was again by a two Judges and
accordingly held that the decision in P S Rajya was not an
authority for the presumption that exoneration in departmental
proceeding ipso facto would lead to a judgment of acquittal in a
criminal trial.
9. The Hon'ble Apex Court in Hyder Consulting (UK)
Ltd. v. State of Orissa, (2015) 2 SCC 189 has held that a
decision can be said to be given per incuriam when the court of
record has acted in ignorance of any previous decision of its
own, or a subordinate court has acted in ignorance of a decision
of the court of record. Therefore the decision of State (NCT of
Delhi) which has not taken into account and consideration of
the earlier decision of the Supreme Court in Radheshyam is
said to be per incuriam.
NC: 2023:KHC:41818
10. The Full Bench of this Court in the case of
Govindanaik G Kalaghatigi -vs- West Patent Press Co. Ltd. has
held that where there is a conflict between two decisions of the
Hon'ble Supreme Court of the same Bench strength, it is latter
of the decision that would prevail. The decision of the Bench
consisting of three Judges in the case of Ashoo Surendranath
Tewari would prevail over the decision in the case of State (NCT
of Delhi) rendered by consisting of three Judges which is a
latter judgment. Though the decision of the State (NCT of
Delhi) was unanimous and whereas in the case of Radheshyam
Kejriwal it was a majority of 2:1, the total strength of the
Bench that they decided the case is deemed to be the Bench
strength of that decision despite dissenting opinion as held by
the Hon'ble Supreme Court in the case of Shanti Fragrances -
vs- Union of India (2018) 11 SCC 305.
11. In Crl.P.No.6857/2020, the co-ordinate Bench of
this Court at para 14 has held as follows:
14. xxxxxxxx The unamended proviso to Section 17
of the Act indicates that an offence referred to in Clause (e)
of sub-Section (1) of Section 13 shall not be investigated
without the order of a police officer not below the rank of a
Superintendent of Police. To put it simply, the offence
under Clause (e) of sub-Section (1) of Section 13 shall be
investigated only on an order passed by the Superintendent
of Police. In the absence of any power to authorize the
registration of the FIR, the order passed by the
Superintendent of Police concerned authorizing the Police
Inspector to register the FIR is one without authority of law.
12. In the instant case, the departmental enquiry was
initiated against the petitioner-accused and after conducting
NC: 2023:KHC:41818
the enquiry, the Enquiry Officer submitted a report stating that
the charges against the delinquent have not been proved.
Hence, in view of the ratio enunciated by the Hon'ble Apex
Court, the impugned criminal proceeding cannot be continued
against the accused, who has been exonerated on identical
charges in the departmental enquiry, the underlying principle
being higher standard of proof in criminal cases.
13. Accordingly, I pass the following:
ORDER
i) The criminal petition is allowed;
ii) The impugned proceedings in Spl.C.C.No.106/2017,
on the file of the Principal District and Sessions
Judge, Chikkamagaluru, insofar it relates to
petitioner herein stands quashed.
Sd/-
JUDGE
HR
