IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.942 of 2009 MUKESH KUMAR CHAKHAIYAR Versus STATE OF BIHAR & ANR ----------- For the Petitioner: Mr. Rajesh Mohan, Advocate For the State : Mr.Rajani Kant Mishra, Advocate For the Vigilance: Mr. Prashant Pratap, Advocate 11 23.6.2010 The petitioner seeks quashing of the order contained in memo no.3290 Patna dated 27.9.2007 by which the Secretary, Personnel and Administrative Reforms, Govt. of Bihar in exercise of its power under section 197 Cr.P.C. and section 19(2) of the Prevention of Corruption Act has accorded sanction for prosecution of the petitioner under sections 409, 467, 468, 471, 472, 420, 120(B) of the Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 in connection with Gardanibagh P.S. Case No.595 of 1996. Learned counsel for the petitioner assails the impugned order on two grounds; firstly the criminal prosecution would not continue against the accused if he is absolved in the departmental proceeding on similar charges. Secondly the sanction order contained in Annexure-4 had made no detail discussions of evidence justifying its satisfaction. In support of his first contention, he relied upon a decision of the Hon’ble Apex Court in the case of P.S. Rajya Vs State of Bihar, reported in (1996) 9 SCC 1. In the aforesaid case the Hon’ble Apex Court held that criminal prosecution on identical charge should not continue if he has been acquitted of the same charges in departmental proceedings. The Apex Court further observed 2 therein that 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. Counsel for the State submits that charges are not identical and the period is also different. He submits that there is no prohibition that once a person is absolved in the departmental proceeding he cannot be tried in the criminal offence. In support of his contention, he relied upon a decision of the Hon’ble Apex Court in the case of Superintendent of Police (C.B.I.) v. Deepak Chowdhary, reported in 1996 Cri. L.J. 405. It appears that the Hon’ble Apex Court in the case of P.S. Rajya (supra) has held that if a person is acquitted in the departmental proceeding in respect of certain charges then in respect of the same charges the criminal prosecution should not proceed. In the case of Superintendent of Police (C.B.I.) v. Deepak Chowdhary (supra), the High Court had quashed the criminal prosecution on the ground that the delinquent has been exonerated in the departmental proceeding. The Hon’ble Apex Court setting aside the order of the High Court observed that quashing the order of sanction on the ground that the delinquent was exonerated in the disciplinary authority, is not proper. In the case of State through SPE & CBI, Andhra Pradesh Vs M.Krishna Mohan & anr., reported in (2007)14 SCC 667, the Hon’ble Apex Court was also seized with the issue whether a person should be acquitted of criminal charges, once he is absolved of the same charge in the departmental 3 proceeding. In the aforesaid case after considering the decision in the case of P.S. Rajya (supra), the Hon’ble Apex Court observed that the aforesaid judgment was rendered in the facts and circumstances of that case and it cannot be said to be an authority that exoneration in the departmental proceeding should not lead to the conclusion that he was not guilty of commission of the offence wherefor he was charged. It would be useful to quote paragraphs 32 and 33 of that judgment which reads as under: “32. Mr.Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of Bihar. The fact situation obtaining therein was absolutely different. In that case, in the vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an application for quashing of the proceedings was filed before the High Court under Section 482 of the Code of Criminal Procedure which was allowed relying on State of Haryana v. Bhajan Lal holding: (P.S. Rajya case, SCC p.9, para 23) “23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, 4 the criminal proceedings initiated against the appellant cannot be pursued”. “33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial”. In case of CBI Vs. V.K.Bhutiani, reported in (2009) 10 SCC 674, again the issue was whether it would be proper to quash criminal prosecution on the ground that delinquent was absolved in criminal proceeding. The Apex court after examining both P.S. Rajya case and case of M.Krishn Mohan (Supra) observed that though the report in the departmental proceeding would be a relevant factor, it cannot be held to be the “be all or end all” when accused is being prosecuted for serious offences. (The underlining is mine for emphasis). In this case the accused Bhutiani was given almost clean cheat by the Central Vigilance Commission. As Bhutaini was absolved in departmental proceeding, the High court quashed the criminal prosecution relying on judgment in P.S.Rajya case. The appeal was carried to Apex court. The C.B.I. being aggrieved by the order of the High Court went in appeal before the Hon'ble Apex Court and the Hon’ble Apex Court in para 6 of its judgment, quoted para 8 of impugned order of the High Court in case of P.S.Rajya case, which is as follows:- 8. we have carefully gone through the aforesaid 5 ruling. In para 8 of the impugned order, the Court opined as under: “In my opinion, this judgment squarely applies in the present case. The basic factors to establish conspiracy of the petitioner were all before the Central Vigilance Commission. After tasking all these factors into consideration, it found that the petitioner was not actually involved in any corrupt practice or in the conspiracy of the other accused persons a prayer for loan and the recommendation for it or opening of the account were all observed to be in accordance with practice, although a haste on the part of the petitioner was proved. So far as valuation of the property offered as security is concerned, the petitioner had actually hot committed any fraud. He did not overvalue the property. The Central Vigilance Commission having taken note of the fact has held that it was a case of misjudgment rather than a case of conspiracy. The Vigilance Commission also went into the question whether the petitioner was at fault in not making enough inquires about the genuineness of the documents issued by A-3 and others and about the genuineness of the business run by A-3. Yet the Vigilance Commission has given a clean chit to the petitioner although it found the petitioner guilty to the extent of making a faulty judgment in recommending the proposal.” (emphasis supplied). We have deliberately quoted the above paragraph to note that the High court did not bother to examine the charge sheet ad the allegations made 6 therein nor did nit examine the statement of the witnesses and/or the report of the handwritten (sic handwriting) experts which were the part of the charge sheet. In our opinion, the reliance of the high court on the ruling of P.S. Rajya was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here I this case. It is thus evident that the Apex court observed that if incriminating material appears in the charge sheet then it would not be the function of the court to examine the same with a view as to whether the accused could be convicted or not. Para 12 of the judgment reads as follows:- 12. The ruling of P.S. Rajya was considered by this court in State Vs. M. Krishna Mohan wherein this court, after elaborate discussion, found that where the fact situation was different, reliance could not be made (sic placed) altogether on the report of the Central Vigilance Commission. Relying on the ruling of the State of Haryana Vs. Bhajan lal this court reiterated the position that where there could be some material found in the charge sheet, then it would not be the function of the court to examine the charge sheet with a view as to whether the accused could be convicted or not. That would be a premature exercise. It would be relevant to point out here that in the case of State of Orissa Vs D.N.Padhi the Hon’ble Apex Court has held that the materials appearing on the record of the case would be only considered for framing of charge. In other words, this court will 7 not look into materials produced by the defence, if it does not exist on the record. In this criminal prosecution the allegation is of defrauding government money on forged allotment letters in conspiracy with each other between 1990 to 1996. However, in the departmental proceeding the main charges are in respect of procedural illegality. The departmental proceeding started on 19.8.1997 and concluded on 5.11.2004. The criminal case was instituted on 17.12.1996 and charge sheet was submitted on 19.7.2007.It is not the case of the accused that materials coming in course of investigation and departmental proceedings are same. In view of the decisions rendered in the case of State through SPE & CBI, Andhra Pradesh Vs M.Krishna Mohan & anr (supra), CBI Vs. V.K.Bhutiani (supra) and State of Orissa Vs D.N.Padhi, I am of the view that merely because the delinquent has been exonerated in the departmental proceeding, the same cannot ipso fact become a ground for assailing the grant of sanction discharging the accused. The cognizance or charge or sanction is granted on the basis of materials collected in course of investigation, whereas decision in departmental proceeding is based on materials placed before it, which necessarily need not be same and similar as in criminal prosecution. This would be one vital ground as to why it may not be proper to quash a criminal prosecution solely on the ground that one is absolved in departmental proceeding. Further more 8 A.F.R. KHAN the court at this stage would not weigh the pros and cons of the prosecution case, but merely has to see whether there is sufficient material to proceed. The exoneration of the petitioner in the departmental proceeding and materials thereof can be well looked into and considered at the time of trial. The next point raised by the petitioner is that the order granting sanction, dated 27.9.2007 does not specify materials on which the satisfaction is based. Learned counsel submits that approval of sanction has been granted in a mechanical manner. Counsel for the respondents submits that the sanction order is a speaking order and it has taken into consideration the various materials coming on record against the petitioner. He submits that the charge sheet discloses sufficient materials for according sanction against the petitioner. I have perused the impugned order. The order shows that on consideration of relevant materials on record various documents and finding sufficiency of evidence against petitioner and others, sanction was accorded. The police investigation has prima facie substantiated the allegations leveled in the charge sheet for purposes of according sanction. For the reasons stated above, I do not find any merit in this application. It is accordingly dismissed. However, dismissal of the application would not preclude the petitioner from raising all these points at the time of taking cognizance. (S.P.Singh,J) 9