Criminal Misc. No. M-25757 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-25757 of 2008 (O&M) Date of Decision:20.8.2009 Kartar Singh .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. A.S. Kalra, Advocate for the petitioner. Mr. Arshvinder Singh, Deputy Advocate General, Punjab. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Kartar Singh under Section 482 of Cr.P.C for quashing of FIR Annexure P.1 bearing No.32 dated 24.5.1996 registered under Sections 13(1) C read with Sections 7, 13(2) of Prevention of Corruption Act, 1988 (hereinafter to be referred as `the Act'), 409, 465, 466, 471, 120-B of IPC at Police Station Vigilance Bureau, Patiala as also the proceedings including the charge order/ charge-sheets Annexures P2, P3, P3/A P3/B and P3/C passed by the learned Special Judge, Ludhiana on the ground that the petitioner has been exonerated of the charges against him in the departmental inquiry conducted by District Development and Panchayat Officer, Sangrur and approved by Divisional Deputy Director Rural Development and Panchayats, Patiala vide his order dated 21.12.2001 Annexure P.4. In the reply filed by the respondent- State, it has been inter-alia pleaded that in fact the petitioner while working as Panchayat Secretary for Criminal Misc. No. M-25757 of 2008 (O&M) -2- the areas of Village Bonkar Gujran, Dholewal, Machhiyan Khurd and Jhugian Kader falling in Mangat Block had received the grant of Rs.50,000/- for Gram Panchayat Bonkar Gujran, Rs.1,25,000/- for Dholewal, Rs.1,90,000/- for Machhiyan Khurd and Rs.80,000/- for Jhugian Kader in connection with levelling of land under Jawahar Rozgar Yojna to be carried out in District Ludhiana. The said amount was utilised in a bogus way by him. The expenditure was shown in writing for levelling the panchayat land but such work has not been found to have been done or that if done was very little at some places. Under the said scheme, the amount received was misappropriated by preparing forged record with bad intention in connivance with the officers/ employees. After getting information from some reliable sources, the matter was investigated and the FIR in question was registered. The challan was presented in the Court in the year 2000. During the inquiry of this case, 30 witnesses gave statement that no work of levelling the land was done. The payments were also withdrawn from the bank by the accused personally and no payment was made through cheque though it is mandatory in a Government grant. Labourers shown to have been paid were also fake. Muster rolls have also been forged. The trial Court has framed the charges in May, 2002. The case is pending in the Court of learned Additional Sessions Judge, Ludhiana for adjudication. Now the petitioner after 12 years of registration of the said case, has filed this petition on false grounds. Indeed, the petitioner did not use the amount of grant for the purpose it was issued. The Department conducted the inquiry after registration of the case and report was submitted in the year 2001, i..e, after five years of registration of the case. During this long period, the facts can be manipulated and defaults can be rectified. The Criminal Misc. No. M-25757 of 2008 (O&M) -3- persons named in preliminary submissions, in their statements have stated before the Investigating Officer that the funds were misappropriated by the petitioner and his co-accused. Moreover, the departmental inquiries are no ground to quash the FIR. The matter was only relating to the misappropriation of funds by the petitioner by not utilising the same for the purpose, these were granted. The Department took 5 years for concluding the inquiry. Lastly, it has been prayed that this petition may be dismissed. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner submitted with full force that the Inquiry Officer after giving full opportunity to the parties arrived at the conclusion that the petitioner did not embezzle any amount of the grant given to the Gram Panchayat of Bonkar Gujran, Dholewal, Machhiyan Khurd and Jhugian Kader. That the Divisional Deputy Director considered the findings of the Inquiry Officer very minutely and came to the conclusion that the petitioner has been rightly found innocent by the Inquiry Officer and no misappropriation by the petitioner of any government grant was found to have taken place. Thus, the petitioner having been exonerated during inquiry, the FIR in question as well as the subsequent proceedings are liable to be quashed. He further puts that the F.I.R qua the co-accused Davinder Singh has been quashed by this Court vide order dated 20.1.2006 Annexure P5. To buttress this stance, he has sought to place abundant reliance upon the observations rendered in re: V.B. Raikar v. State by Karnataka Lokayukta Police, Madikeri, Kodagu District, 2004(2) Recent Criminal Reports (Criminal) 150, PS Rajya v. State of Bihar, 1996(3) Recent Criminal Reports (Criminal) 261 and Saran Singh Jaggi Criminal Misc. No. M-25757 of 2008 (O&M) -4- v. State of Punjab, 1995(1) Recent Criminal Reports (Criminal) 624. As against this, the learned State Counsel reiterating the averments enshrined in the reply urged that in view of the observations rendered in re: Sat Pal Joshi v. State of Punjab, 2007(3) Recent Criminal Reports (Criminal) 193, this petition is liable to be dismissed. On giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that the contentions raised by learned counsel for the petitioner are unsustainable for the discussion to follow hereunder: It is apt to be borne in mind that the FIR came into being in May, 1996. There is no gainsaying the fact that the Department had conducted the inquiry after registration of the case. The report was submitted in 2001, which is obviously after 5 years of registration of the case. The possibility of manipulations or rectifications of defaults during this interregnum cannot be ruled out. The core issue to be decided herein is as to whether in the wake of exoneration of an employee during inquiry proceedings, the FIR as well as subsequent proceedings can be quashed. Of course, in the authorities relied upon by the learned counsel for the petitioner, it has been held that if an accused is exonerated in departmental proceedings and the charges in the departmental proceedings and the criminal proceedings are one and the same, then nothing remains to be proceeded against him in the criminal proceedings. These authorities and the principles laid down therein are inapplicable to the facts of this case. The powers of proceeding by the High Court under Section 482 of Cr.P.C are very wide and the very plenitude of the power requires great caution in its exercise. The inherent power should not be exercised to stifle a Criminal Misc. No. M-25757 of 2008 (O&M) -5- legitimate prosecution. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with as observed by the Supreme Court in State of Orissa and another v. Saroj Kumar Sahoo, 2006(1) Recent Criminal Reports (Criminal) 324. As per averments in the reply, during the inquiry of this case, as many as 30 witnesses had given statements that no work of levelling the land was done. The payments were also withdrawn from the bank by the accused- petitioner personally and no payment was made through cheque though it is mandatory in a Government grant. The labourers shown to have been paid were also fake. Furthermore, bogus muster rolls have been prepared. Vide order dated 8.5.2002 Annexure P.2, the learned Special Judge, Ludhiana observed that “I am of the opinion that there are sufficient grounds to frame a prima-facie charge against the accused and accordingly a prima-facie charge under Sections 120- B/409/467/471 of IPC and 13-(1)(d) read with Section 13(3) of the Prevention of Corruption Act have been framed to which they did not plead guilty and claimed trial.” Vide Annexures P3, P3/A, P3/B, P3/C, the petitioner along with others has been charge-sheeted. It is the material collected during the investigation and evidence led in Court, which decides the fate of the accused person. During investigation, as noted supra, it was found that the work for which the amount was withdrawn from the bank has not been done. In re: Shyam Sunder Mathur v. State of Rajasthan, 1998 (4) Recent Criminal Reports (Criminal) 819, it has been held that “merely Criminal Misc. No. M-25757 of 2008 (O&M) -6- because the accused has been exonerated in the departmental inquiry is no ground to discharge him in a criminal case registered under the Corruption Act. The finding recorded in the departmental inquiry is not relevant under Sections 40 and 42 of the Evidence Act and such evidence must be regarded as irrelevant.” In the case at hand, as already noticed, the charge has been framed against the petitioner on the basis of the material collected during investigation. The same was submitted to the Court with the report under Section 173 of the Code of Criminal Procedure. In Annexure P.4, it has been observed by the Divisional Deputy Director Rural Development and Panchayat, Patiala that “Therefore, I understand that Sh. Kartar Singh Panchayat Secretary has performed his duty as per rules and no fault of his has been established by the Sarpanches of the concerned panchayats and enquiry officer (District Development and Panchayat Officer, Sangrur). Therefore, it would not be proper to take any action against Sh. Kartar Singh Panchayat Secretary. Therefore, keeping in view no fault of Sh. Kartar Singh on the basis of record annexed with the enquiry report bearing No.734 dated 25.5.2000 received from the investigating officer (District Development and Panchayat Officer, Sangrur) and statements of Sarpanches of Gram Panchayat Rattangarh, Bonkar Gujran, Dholewal, Machhiyan Khurd and Jhugian Kader having appeared as witnesses, regarding finding no fault, the complaint pending against Sh. Kartar Singh Panchayat Secretary, Panchayat Samiti Ludhiana-2 is consigned to the office.” As observed by the Apex Court in re: Pankaj Kumar v. State of Maharashtra & Others, 2008(4) Recent Criminal Reports 890 (S.C.) “It would suffice to state that though the powers possessed by the High Criminal Misc. No. M-25757 of 2008 (O&M) -7- Courts under the said provisions are very wide, but these should be exercised in appropriate cases, ex-debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of Court or that the ends of justice require that the proceedings ought to be quashed.” In the instant case, the facts and circumstances enumerated hereinbefore, reflect that no rarest of rare case for quashing is made out. The litmus test is that if the FIR reveals the commission of crime and the prosecution is not barred by law and continuance of the proceedings would not amount to abuse of process of law, the FIR is not liable to be quashed. On applying this test, no case is made out for quashing of the FIR Annexure P.1 as well as the charge order/ charge sheets, Annexures P2, P3, P3/A, P3/B and P3/C. Coming to Annexure P.5, order dated 20.1.2006 passed by this Court in Criminal Revision No.454 of 2003 – Devinder Singh v. State of Punjab, a glance through the same would reveal that Devinder Singh had posed a challenge to the order dated 8.5.2002 of Special Judge, Ludhiana. It has been observed in Annexure P5 that, “However, from the sanction granted by Director Panchayat Punjab, Chandigarh for prosecution of Devinder Singh, it would come out that this fact was never considered by the Director who appears to have given sanction just at the instance of Vigilance Bureau and after going through their file.” In the present one, the sanction accorded for prosecution is not under challenge. Thus, in my view, Criminal Misc. No. M-25757 of 2008 (O&M) -8- the facts of Devinder Singh's case can be hardly equated with the one in hand. As a sequel of the above discussion, this petition stands dismissed. Disposed of accordingly. August 20, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No