Karnataka High Court
T M Chandramouleshwara vs The Station House Officer on 5 September, 2023
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC:32281
CRL.P No. 9960 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 9960 OF 2021
BETWEEN:
T M CHANDRAMOULESHWARA
Digitally signed by B
K
MAHENDRAKUMAR
S/O LATE MAHADEVAPPA
Location: High
Court of Karnataka
AGED ABOUT 46 YEARS
RESIDENT OF NO.30, 11TH BLOCK
1ST FLOOR, JSS LAYOUT
MYSURU CITY - 570 019.
...PETITIONER
(BY SRI. K. ANANDARAMA, ADVOCATE)
AND:
THE STATION HOUSE OFFICER
NANJANGUD TOWN POLICE
MYSURU DISTRICT- 571 301.
...RESPONDENT
(BY SMT. WAHEED M.M., HCGP)
THIS CRL.P IS FILED U/S. 482 CR.P.C PRAYING TO
QUASH THE FINAL REPORT DATED 09.04.2013 FILED IN
C.C.NO.725/2021 (CR.NO.88/2013) ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, NANJANGUD IN
CR.NO.88/2013.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
-2-
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CRL.P No. 9960 of 2021
ORDER
The petitioner is sought to be prosecuted for the offences
punishable under Sections 467, 468, 471, 474, 420, 120B of IPC.
2. The case of the prosecution is that the accused
herein, who was working as Village Accountant, conspired with
other accused and created a document to mutate the name of
accused No.1 in the revenue records in respect of the subject
property. The cognizance taken of the aforesaid offences is
impugned in this petition.
3. The learned counsel for the petitioner submits that
against the similar 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
on merits. In support, he places reliance on the decision of 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.
4. On the other hand, learned High Court Government
Pleader for the respondent-State submits that, merely because
the petitioner has been exonerated in the departmental enquiry, it
would not lead to exoneration or acquittal in criminal cases. In
support, he places reliance on the decision of the Honble Supreme
Court in the case of State (NCT of Delhi) vs. Ajay Kumar Tyagi
reported in 2012 (9) SCC 685.
5. Considered the submissions made by the learned
counsel for the parties.
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CRL.P No. 9960 of 2021
6. The Hon'ble Supreme Court in the case of
Radheshyam Kejriwal Vs. State of West Bengal (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
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."
7. 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
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CRL.P No. 9960 of 2021
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.
8. 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.
9. 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
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CRL.P No. 9960 of 2021
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.
10. In the instant case, the departmental enquiry was
initiated against the petitioners-accused and after conducting
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.
11. In view of the aforesaid, I am of the considered
view that the petitioner having been exonerated in the
departmental enquiry on merits, it would be an abuse of
process of law to continue the criminal proceedings against the
petitioner, since the probability of conviction of the petitioner is
remote and bleak. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
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CRL.P No. 9960 of 2021
ii) The impugned proceedings in C.C.No.725/2021,
pending on the file of learned Senior Civil Judge and JMFC,
Nanjangud insofar as it relates to the petitioner - accused No.2
is hereby quashed.
Sd/-
JUDGE
BKM
