2021 (7) TMI 1493

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....that the petitioner along with four others had indulged in certain irregularities in the admissions given to students belonging to different States for the first year bachelor degree in Unani Medical Sciences and further alleged that the petitioner had indulged in creation of documents for eligibility of those students for professional courses notwithstanding the fact that those students did not have any eligibility to enter professional courses. The said complaint resulted in registration of a FIR against the petitioner in Crime No. 659 of 2015 for offences punishable under Section 34, 408, 420, 465, 468 and 471 of the Indian Penal Code. The Government by an order dated 19-12-2015 referred the matter to the 3rd respondent/Criminal Investigation Department ('CID' for short) for investigation and report. 3. During the pendency of the aforesaid criminal proceedings, the 1st respondent/Government decided to initiate a departmental enquiry against the petitioner and in furtherance of the said decision, issued a charge sheet and later, a retired District Judge was appointed as the Inquiry Officer in terms of Government Order dated 18-07-2016. The Inquiry Officer after holding....

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.... stating that once an interim order gets vacated, the criminal proceedings will have to be continued and taken to its logical end and therefore would submit that, there is no warrant for interference at this stage. 8. I have given my anxious consideration to the rival submissions made by the respective learned counsel and have perused the material on record. 9. Certain undisputed facts are that, the complainant lodges a complaint before the 1st respondent/Police which results in FIR being registered against the petitioner in Crime No.659 of 2015 for offences indicated supra. The petitioner is accused No.3 along with others in the said criminal case, which is pending investigation at the hands of the CID. During the pendency of these proceedings, the competent authority in the Government decides to initiate departmental inquiry against the petitioner and others and charge sheet was issued on  20-01-2016. In terms of the decision of the competent authority, a Government order was issued on 18-07-2016, appointing a retired District Judge to hold the inquiry against the petitioner and others and submit his report. The charge sheet was issued in terms of Rule 11 of the Karnat....

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....oving the allegations for the offences under criminal law, where the guilt has to be proved beyond all reasonable doubt, is bleak. Since chances are bleak for the reasons indicated hereinabove, it would be improper to permit the criminal trial to proceed any further. 13. This view of mine in this regard, is fortified by the judgment of the Apex Court in the case of P.S. RAJYA v. STATE OF BIHAR [(1996) 9 SCC 1], wherein the Apex Court has held as follows: "17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental....

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....he report as "partly framed structure and partly load being walls, floor heights 3.20 mm. Further Shri S.N. Jha on p. 54 of Ex. D-1 had adopted a rate of Rs 290 per sq. mtr. for ground floor and adding for extra height he had estimated ground floor including mezzanine floor at Rs 2,02,600. But for the report at Ex. S-20 the rate has been raised to 365 per sq. mtr. There is no explanation for this increase of rate by Rs 75 per mtr. It is also observed that for the updating of the cost of index 5% was added to the rate of Rs 290 as per p. 55 of Ex. D-1 by Shri S.N. Jha but this has been raised to 97% as an escalation to the cost of index in Ex. S-20 without explaining or giving the reasons therefor. It is surprising that same set of engineers have adopted different standard for evaluating the same property at different occasions. Obviously, either of the report is false and it was for the prosecution to suitably explain it. In the absence of it the only inference to be drawn is that report at Ex. S-20 is not authentic. Since the same set of engineers have done the evaluation earlier and if subsequently they felt that there was some error in the earlier report, they should have explai....

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....cised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person....

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....g to P.S. RAJYA held in identical lines in the case of Radheshyam Kejriwal v. State of W.B [(2011) 3 SCC 581], that standard of proof in a criminal case is much higher than that of adjudication in a departmental enquiry. If in a departmental inquiry, the competent authorities have failed to drive home the charge, it would be improper to permit criminal trial any further. This view of the Apex Court in the aforesaid case is reiterated in the later three Judge Bench in the case of Ashoo Surendranath Tewari v. CBI [(2020) 9SCC 636], wherein the Apex Court has held as follows: "8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya v. State of Bihar [P.S. Rajya v. State of Bihar, (1996) 9 SCC 1 : 1996 SCC (Cri) 897], the question before the Court was posed as follows: (SCC pp. 2-3, para 3) "3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant un....

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....iminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [B.N. Kashyap v. Crown, 1944 SCC OnLine Lah 46 : AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (SCC OnLine Lah: AIR p. 27) ' ... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined.'....

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....inal 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." 13. It finally concluded: (Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721], 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." ... ... ... ... 15. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22-12-2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment [Ashoo Surendranath Tewari v. CBI, 2014 SCC OnLine Bom 5042] of the High Cou....

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.... 17. For the aforesaid reasons, I pass the following: ORDER (1) The writ petition is allowed. (2) The complaint dated 26-10-2015, FIR dated 28-10-2015 and Government Order dated 19-12-2015, are quashed and all further proceedings are also quashed qua the petitioner. (3) The petitioner would be entitled to all such consequential benefits that would flow from the obliteration of the aforesaid proceedings. (4) The terminal benefits, if any, withheld on account of pendency of these proceedings shall be released in favour of the petitioner within 8 weeks from the date of receipt of a copy of this order. ============= Document 1 "à®² 21 à®…à®²à¯à®²à®¾à®²à¯ OF à®²à¯ˆ à®µà®¿à®°à¯à®šà¯à®¸à¯ à®¸à¯à®•à¯‚à®²à¯à®ªà®¸à¯à®•à¯ˆ à®‰à®²à®•à¯ˆ à®²à®©à®¾à®²à¯ à®•à¯‚à®¸à¯ à®ªà®¾à®¸à¯à®•à®°à¯ˆà®š à®²à¯ˆ à®®à¯€à®¤à¯à®²à®•à¯ˆ à®²à®©à¯à®•à®³à¯ TONOON. 2 003 456 à®µà®•à¯ˆà®•à®²à¯ à®šà¯à®šà®µà¯€à®š à®....

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