Criminal Misc. No. M-25360 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-25360 of 2008 (O&M) Date of Decision:20.8.2009 Om Parkash .....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 Om Parkash 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 and P3/A 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 2.1.2002 Annexure P.4. 2. In the reply filed by the respondent- State, it has been averred that the petitioner while working as Panchayat Secretary in the area of Criminal Misc. No. M-25360 of 2008 (O&M) -2- Village Miani and Boothgarh received grant of Rs.1,05,000/- for Miani and Rs.50,000/- for Boothgarh 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 in connivance with some officers/ employees and expenditure was shown in writing for levelling the panchayat land, but such work had 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. During the inquiry of this case, 12 witnesses gave statement that no work of levelling of land was done. The payments were also withdrawn from the bank by the said accused personally and no payment was made through cheque as is mandatory in the government grant. Labourers shown to have been paid were also fake. Muster rolls prepared by the Secretary were also forged. Subsequently, the learned trial Court framed the charges in May, 2002. The case is pending in the Court of Shri G.S. Sran, Additional Sessions Judge, Ludhiana and the matter is being adjudicated. The petitioner after 12 years of registration of the said case has filed the present petition on false grounds just to save himself from legal punishment. Lastly, it has been prayed that this petition may be dismissed. 3. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 4. Learned counsel for the petitioner submitted with great eloquence that the petitioner was serving as Panchayat Secretary, whose duty was to maintain the records. It was always the Sarpanch of the Village, who along with panchayat members passed the resolutions, which were Criminal Misc. No. M-25360 of 2008 (O&M) -3- entered into the relevant register by the Panchayat Secretary/ petitioner. To prepare measurement book, it was the duty of Junior Engineer and not that of the Panchayat Secretary. It was also rightly considered by the Inquiry Officer that the release amount of the land had gone up due to the levelling of the same and the Enquiry Officer himself made inspection of the concerned land. All these points were found in favour of the petitioner resulting into his innocence and the Divisional Deputy Director agreed with the findings of the Enquiry Officer and categorically held that the petitioner did not embezzle any government fund and hence, no action against the petitioner would be considered proper. He further argued that Criminal Revision bearing No.454 of 2003 was filed in this Court on behalf of one Davinder Singh Panchayat Secretary who was also one of the accused mentioned in the present FIR. He had sought the quashment of the FIR. The same was allowed vide order dated 20.1.2006 Annexure P5. There was identical allegation against Davinder Singh Panchayat Officer. He was Panchayat Secretary in Machhiwara Block and amount of Rs.60,000/- was given to him for levelling of land in the Village Serian, which was not used by him for that purpose. The regular inquiry had been conducted against him by the Deputy Chief Executive Officer, Zila Parishad, Roopnagar who found him innocent and the inquiry report was approved by the Divisional Deputy Director, Rural Development and Panchayat, Patiala. The case of the present petitioner is also on the identical footing as that of Davinder Singh. Hence, criminal proceedings, i.e., FIR Annexure P.1 and the charge order/ charge sheets Annexure P2, P3 and P3/A deserve to be quashed. To buttress this stance, he has sought to place abundant reliance upon the observations rendered in re: V.B. Raikar v. State by Karnataka Criminal Misc. No. M-25360 of 2008 (O&M) -4- 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 v. State of Punjab, 1995(1) Recent Criminal Reports (Criminal) 624. 5. The learned State counsel has argued that the case was registered after holding inquiry and the allegations levelled against the petitioner were found true and correct during inquiry proceedings. He further puts that as the allegations in the FIR clearly reveals the commission of offence by the petitioner, so, prima-facie, no case is made out for quashing the FIR qua the petitioner. 6. 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: 7. 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 after a long period. 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. Criminal Misc. No. M-25360 of 2008 (O&M) -5- 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 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 12 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 and P3/A the petitioner along with others has been charge-sheeted. It is the material collected during the investigation and evidence led in Court, which Criminal Misc. No. M-25360 of 2008 (O&M) -6- 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 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. 8. In Annexure P-4, it has been observed by the Divisional Deputy Director Rural Development & Panchayats, Patiala as under:- “So, due to this, I understand that Sh. Om Parkash Panchayat Secretary has done his duty as per rules and no fault of him, was pointed out by Sarpanch and enquiry officer (District Development and Panchayat Officer, Sangrur). Due to this, no action would be considered proper against Sh. Om Parkash Panchayat Secretary, Panchayat Samiti Ludhiana-2, on the basis of charge sheet issued. Therefore, the complaint pending against Sh. Om Parkash Panchayat Secretary, Panchayat Samiti Ludhiana-2 is filed, keeping in view the enquiry report of enquiry officer (District Development and Panchayat Officer, Sangrur) received vide No.735 dated 25.5.2000 attached with Criminal Misc. No. M-25360 of 2008 (O&M) -7- record, the Sarpanches cited as witnesses on behalf of the government, having stated no fault of Sh. Om Parkash Panchayat Secretary.” 9. 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 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 and P3/A. 10. 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 Criminal Misc. No. M-25360 of 2008 (O&M) -8- 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, the facts of Devinder Singh's case can be hardly equated with the one in hand. 11. As a sequel of the above discussion, this petition stands dismissed. 12. Disposed of accordingly. August 20, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No