1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.M.O. No. 6 of 2006. Reserved on: 15.7. 2007. Date of Decision: 16. 07.2007. ____________________________________________________________ Ashok Sharma. Petitioner. Versus State of Himachal Pradesh. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Mr. Atul Jhingan, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. _________________________________________________________ Surinder Singh, J . Petitioner herein is an accused in F.I.R. No. 17 of 1997 dated 27-11-1999 registered under Section 420, 209, 218, 109, 120 (B) of the Indian Penal Code read with Section 13 (1) (d) (2) of the Prevention of Corruption Act, 1988, in Police Station Enforcement Shimla. On 20-1-2006, the petitioner filed a petition under Section 482 of the Code of Criminal Procedure for quashing the F.I.R. On 3.7.2006, the learned Deputy Advocate General informed the Court that the challan in terms of Section 173 of the Code of Criminal Procedure was prepared and presented in the Court of learned Special Judge {Sessions Judge (Forest)} Shimla. In view of the intervening development, learned counsel for the petitioner sought time. Vide order dated 18.8.2006, he was permitted to amend the petition to enable the petitioner to pray for quashing of the proceedings in the challan. Thus the amended petition was filed and the State Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 was allowed to file the reply. The challan pending in the court of the Ld. Special Judge was requisitioned vide order passed on 8.12.2006 in Cr.M.P. No. 531 of 2006. Further proceedings in the trial Court were ordered to be stayed in the matter vide order dated 22.8.2007. Now the matter has been finally heard. As a matter of fact, the petitioner herein was a Member Secretary of the Himachal Pradesh Pollution Control Board, Shimla with effect from 1993 to 1998. A secret information was received against him, by the Enforcement Wing that in his capacity as a Member-Secretary of the Board he had committed criminal misconduct and certain serious administrative lapses etc. On this information the record of the said Board was scrutinized. Inquiry was held which prima-facie disclosed the commission of the cognizable offences thus an F.I.R. under the aforesaid sections was registered and the Enforcement Wing of the State Police started investigation into the allegations. The record, which was seized from the different quarters, was sent to the Examiner of Questioned Documents for his expert opinion. The investigation officer(s) collected the evidence and sought the prosecution sanction in the year 2001. In the meantime the petitioner made a representation to the enforcement department and prayed for the re- investigation. The Enforcement department again started verifying the facts in view of the points raised. In the meantime the petitioner filed the petition in this court to quash the FIR. The case was expedited by the investigation officer on the intervention of the court as is evident from the Zimni order dated 5-6-2006. On the completion of the investigation the involvement of the petitioner was found in the commission of the alleged offences that the petitioner had embezzled, misappropriated and mis-used the Board funds to the tune of Rs. 2, 631,286/- on various counts as detailed in the challan e.g. on entertainments, gifts, liquor and tips to the waiters etc. against the financial 3 norms which were not at all permissible. It was also found that the relevant registers were forged and fabricated to cover up the story. To be very precise the liability of the petitioner was high-lighted along-with his co-accused in the report submitted in the court under Section 173 of the Code of Criminal Procedure. He being the Member Secretary of the Board had fraudulently and dis-honestly mis-used his official position in connivance with other accused Shri R.C. Puri and mis-used the board funds and obtained the pecuniary advantage/personal benefits unto himself and committed criminal misconduct, being a public servant and forged the documents/registers thus made himself liable for offences under Section 13 (2) of the Prevention of Corruption Act, 1988 and 420, 209, 218, 109 and 120 (B) I.P.C. Against the above back-ground, the learned counsel for the petitioner has vehemently argued:- (i) The case was registered on a secret information and no preliminary inquiry was conducted which was mandatory and as per the vigilance Manual, no action should have been taken on anonymous and pseudonymous complaint further clause 10 of the Vigilance Manual provides that when in the offences under the Prevention of Corruption Act public servants are involved, investigation should be conducted by the Anti Corruption Unit. (ii) FIR was lodged in the year 1997 but the chalaln was not filed till 2006; (iii) The petitioner was subjected to prolonged trial; (iv) Prima facie, no case is made out against the petitioner; (v) Procedure for getting the prosecution sanction was not followed; (vi) Allegations against R.C. Puri were dropped; 4 (vii) The Chairman of the Board admittedly accorded ex- post-fact sanction to the expenditure as per rules. THEREFORE, in the above circumstances no case is made out against the petitioner and the criminal proceedings against him deserves to be quashed. Contra, Shri J.S. Guleria, learned Law Officer has countered the aforesaid arguments that the points raised cannot be accepted as these are essentially a matter for trial. The clauses of the Vigilance Manual are only the administrative instructions which are only directory and are applicable to the Vigilance Department and not to the Enforcement Department of the police. Further on the conclusion of the investigation, the evidence and the documents appended to the challan prima-facie make out a case against the petitioner. Therefore, this Court cannot go into the reliability of the evidence at this stage and the allegations of malafide are wrong, inconsistent and cannot by themselves be the basis for quashing the proceedings. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone trough the points raised. On the consideration of the matter I find no force in the arguments advanced by the learned counsel for the petitioner, for the reasons that a). the very narration of the FIR says that on receiving the secret information, the enquiry was conducted and the record which ever was available in the Board was taken into custody and was scrutinized. b). The Vigilance Manual Contains the instructions. These are only for the consumption of the vigilance department and are the broad guidelines and. Its compliance is not mandatory nor does its infraction vitiate the criminal 5 trial/proceedings. d). The FIR was lodged in the years 1999 and the prosecution sanction was obtained in the years 2001 and the investigation was complete. However, the matter was re-investigated on the representation of the petitioner, but the fate of the case did not change. Reasonable delay in the matter is bound to there because the investigation involves the examination of the documents by the experts and also depends on the availability of the accused to assist the investigation of the case. Now, the challan stands filed in the court and there is no unreasonable delay but owing to the above circumstances. e). On the perusal of challan the liability of the petitioner has been highlighted and his contention that there was an administrative approval and the petitioner acted within the financial rules, thus he was within his power to spend the amount, is the ultimate defense of the petitioner which has to be proved during the trial of the case and this court cannot go into these questions on its merits at this stage. f). It is also a settled law that no parallel proceedings can be initiated under section 482 Cr,P.C. when the matter is pending in the trial court and there is provision for seeking discharge. g) the plea that the prosecution sanction was obtained earlier to finalization of the investigation can also not be looked into at this stage as it is a matter which requires discussion on merits. h) There is nothing on record to show that Mr. R.C. Puri co-accused was exonerated and the charge-sheet was filed only against the petitioner and i) The petitioner cannot take the defense, at this stage that for all the expenditure made by him, the chairman had accorded the ex-post facto sanction. In fact, the illegality cannot be legalized subsequently. The matter has been tested on the touch stone of the judgment of the apex court: State of Haryana –v- Bhajan Lal AIR 6 1992 Supreme Court 604, the case is not the rarest of the rare which requires the indulgence of this court to quash the proceedings.. (Please also see: 2006 SCC 359). The question of the reliability of the evidence collected at the time of investigation cannot be looked into these proceedings. In State of Orissa and another –v- Saroj Kumar Sahoo (2005) 13 Supreme Court Cases 540, the Supreme Court has held that the High Court should not ordinarily embark upon an enquiry as to reliability of evidence to sustain the allegations which is the function of the trial Judge and further that the powers under Section 482 of the Code of Criminal Procedure is to be ex debito justitiae, to do real and substance justice for the administration of which the courts alone exists and not to stifle a legitimate prosecution and the allegations of a malafide cannot by themselves be the basis for quashing the proceedings. When the factual scenario in this case is considered in the background of the legal principles set out above, it is inevitable conclusion that in this petition, the High Court cannot look into the evidence on record vis-à-vis the contention of the petitioner which can ultimately be done by the trial Court at the time of considering the matter on merits because the points raised herein above by the learned counsel for the petitioner can only be adjudicated upon during the trial of the case, at the appropriate stage. The case of the petitioner does not fall within the parameters of section 482 Cr.P.C. and article 227 of the Constitution of India. Therefore, the petition is dismissed. The record of the trial Court be returned forthwith. The petitioners are hereby directed to be present before the learned trial Court on 21-8-2008. 7 The learned trial Court is directed to complete the trial expeditiously, as far as possible, on or before 31st December, 2009. The petition is accordingly disposed of. (Surinder Singh) Judge, July 16.7.2008 , 2008. (bm)