1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Rohitashwa Kumar Vs. State of Raj. & anr. S.B.CRIMINAL MISC.PETITION NO.344/1997 UNDER SECTION 482 OF THE CRIMINAL PROCEDURE CODE. Date of Judgment: 17th March, 2009 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.J.K.Mishra, for petitioner. Mr.Anil Joshi, Public Prosecutor. Mr.M.K.Garg ) Mr.Niranjan Singh) for complainant. BY THE COURT : 1. A Criminal trial of an incident of 29.3.1985 is still pending for the last 24 years against the petitioner, who was then posted as Superintendent of Police, Bikaner and is now stayed in pursuance to the order passed by this Court in the present Criminal Miscellaneous Petition filed in the year 1997, despite 2 dismissal of four previous Criminal Misc. Petitions filed by the present petitioner in pursuance to the order passed in the Criminal Case pending against him. By this instant petition, the petitioner has prayed for setting aside the order dated 15.3.97 passed in Criminal Case No.77/87 “State vs. Rohitashwa Kumar” pending before the learned ACJM, Ratangarh and consequently to quash the proceedings of the said case. 2. The main ground of this petition is that the petitioner has been exonerated in the Departmental Enquiry vide order of the State Government dated 13.12.89 (Annex.3) passed in the light of the report of the Enquiry Officer (Annex.2), which is the same subject matter of the FIR No.80/85, Police Station Sadar, Bikaner (Annex.1). In this FIR, the allegation against the petitioner was that while he was posted as Superintendent of Police, Bikaner, he telephoned to his subordinate Addl.S.P. that he was coming to his house with his wife for a social visit. Petitioner came alone and was seated in the drawing room, where drinks were offered, as desired. The complainant Addl.S.P. Sh.R.D.Goyal was sitting in the drawing room and watching T.V. The petitioner SP sent out orderly Umesh 3 Kumar to bring `paan' (beetle) and asked the complainant R.D.Goyal to get his vehicle parked and to listen to a complainant one Peeru Khan, who was standing outside the boundary wall. When the complainant Goyal went outside, petitioner finding the wife of Addl.S.P. alone, pressed her breasts with an intention to outrage her modesty and informed about his intention to come again on the next day. The lady slapped the petitioner culprit, who, on seeing the resistance, immediately ran out of the house. When the complainant Goyal returned to the drawing room, she narrated the story to him, which was overheard by the orderly Umesh Kumar and Driver. A complaint to this effect was sent by the Addl.S.P. to the DIG, Bikaner and DGP, Rajasthan, Jaipur on the same day and on 25.3.85 respectively. A preliminary enquiry was conducted by an officer of the rank of Inspector General of Police and after investigation by the CID CB, the challan was filed in the court of learned Judicial Magistrate, Bikaner on 24.4.85 under sections 451 & 354 IPC against the petitioner. The charges were accordingly framed on 23.4.86. Against this order of framing charges, petitioner moved S.B.Cr.Misc.Petition No.132/86 u/s.482 CrPC before this Court, which was dismissed on 4 21.7.86. When the learned Magistrate started the evidence of the prosecution, the petitioner moved an application for transfer of the case before this Court and the case was transferred by the order of this Court dt.13.3.87 passed in S.B.Cr.Transfer Misc. Petition No.227/87 before the ACJM, Ratangarh. In between the years 1987 and 1989, ten prosecution witnesses were examined and the complainant R.D.Goyal was called for evidence but after several adjournments, the cross examination was deferred for one or the other reason. Ultimately, the Court closed the cross examination of R.D.Goyal (PW 11) on 20.7.89 and the case was fixed for statement of the accused u/s.313 CrPC. However, by another S.B.Cr.Misc. Petition No.339/89, the cross examination of the complainant witness was again opened. Further, the adjournments were sought and ultimately the cross examination was closed on 11.1.1994. That order was also challenged before this Court by way of filing S.B.Cr.Misc. Petition No.131/94 and vide order dt.4.7.94, this Court granted last chance of cross examination of the complainant witness (PW 11) but the witness was not cross examined and the Court again closed the cross examination and recorded the statement u/s.313 CrPC. Then the long list of 35 5 witnesses was produced by the defence, out of which 6 witnesses were examined. During the pendency of this trial, the departmental enquiry was also ordered against the petitioner and the charge in the departmental enquiry was as under: “That the said Shri Rohitashwa Kumar while posted as Superintendent of Police Bikaner on the evening of 23r d March, 1985 at the residence of Shri R.D.Goyal, Addl. Superintendent of Police, Bikaner committed indecent acts on the person of Shrimati Suraj Devi wife of Shri R.D.Goyal to outrage her modesty. He also made indecent proposal to her of speaking on phone to her the next day.” 3. But in the said departmental enquiry, the petitioner was exonerated vide Annex.3 dt.13.12.89 against which he filed S.B.Cr.Misc. Petition No.447/91, which came to be dismissed on 13.11.91 on the ground that the criminal proceedings cannot be quashed merely on the basis of exoneration by the Disciplinary Authority. On the same ground, the accused petitioner filed another S.B.Cr.Misc. Petition No.528/1995, which was dismissed as withdrawn on 21.7.2005. During the pendency of these petitions, the petitioner also approached this Court for stay of the trial but the same was denied vide order dated 10.3.95 and 19.12.95. 6 Despite dismissal of the two Misc. Petitions on the ground of exoneration, this third Misc. Petition has been filed on 9.5.97 for quashing the FIR as well as the Criminal trial pending in the court of learned ACJM, Ratangarh in Criminal Case No.77/87 “State vs. Rohitashwa Kumar”. The main ground of this third Misc. Petition is that Annex.6, the order of the learned trial Magistrate dt.15.3.97, whereby he rejected the application of the petitioner, Annex.5, which was moved on the basis of the judgment of the Hon'ble Supreme Court in P.S.Rajya vs. State of Bihar, reported in 1996 CrLR (SC ) 497 and the ground of argument in this Misc. Petition is also this judgment. In the cited case, it has been held by the Hon'ble Supreme Court that if the departmental proceedings are on identical charges, then the criminal proceedings should be quashed, as it requires higher degree of proof. 4. I have gone through this judgment as well as the order passed in the departmental enquiry against the petitioner. So far as the cited case is concerned, in that case, the Special Judge took cognizance against the petitioner P.S.Rajya under section 5(2) r/w section 5(1) (e) of the Prevention of Corruption Act on account of 7 having assets, disproportionate to the known sources of income. The order of cognizance was challenged in the High Court and the High Court directed to conduct the preliminary enquiry by a higher authority of the petitioner or to do it himself before taking cognizance of the matter. The preliminary enquiry was conducted by the Central Vigilance Commission and also by the Union Public Service Commission and on the basis of their reports, the President exonerated the petitioner Shri Rajya, who was Income Tax Inspector and later on promoted as Income Tax Officer, whereas the facts of the present case are altogether different. This is a case, which relates to house trespass with an intention to outrage the modesty of a lady, who was wife of subordinate to the petitioner and that too, in a department of Disciplined Force like the Police. In the cited case of P.S.Rajya (supra), the question was purely related to the saving of the petitioner and value of the house for the purpose of assets in a corruption case, whereas the facts of the present case can be looked into, only by proper appreciation of evidence in a judicial way. The appreciation of evidence in a criminal trial relating to an offence of moral turpitude is altogether different, than ascertaining the value of 8 assets, which is based on technicalities like cost of the land and the market value prevailing at the relevant time. The departmental enquiries are conducted on the question of misconduct, whereas the Criminal trial is held on the basis of mens rea. When an offence is proved, the punishment in a Criminal trial is the deprivation of life and liberty to a citizen, whereas in the departmental enquiry, it confines only to losing service career. The departmental enquiry rests on the subjective punishment on an employee and its subsequent effect on his family members, whereas the punishment in the Criminal trial has the effect on the Society at large. Therefore, as a universal rule, it cannot be accepted that exoneration in the departmental enquiry must always result in termination of the Criminal trial. It depends upon the facts of each individual case. In the present case, as discussed above, the manner in which the petitioner has tried to prolong the trial, is absolutely shocking and it defeats the ends of justice. Rather, instead of there being the abuse of the process of the court as alleged in this Misc. Petition, it is an abuse of the process of law by the petitioner himself. If he has been exonerated in the departmental enquiry, he ought to have taken this 9 document in his defence and could have contradicted the evidence brought during trial. Despite dismissal of petitions twice on the same grounds by this Court, filing of this petition and withholding the trial is nothing but to put a clock on the expeditious disposal of the Criminal trial and that too, for the third time under the pretext of judgment of the Hon'ble Supreme Court, which, as discussed above, has no bearing on the facts of the present case. 5. Consequently, this Misc. Petition is dismissed and the learned trial Court is directed to conclude the trial of the case without any further delay. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS