IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.28197 of 2011 ====================================================== Kamla Kant, son of Saryu Prasad, resident of Village Kamalpur, P.S. Dheena, Distt. Chandauli (U.P.) .... .... Petitioner Versus The State of Bihar .... .... Opposite Party ====================================================== Appearance : For the Petitioner/s : Mr. Shakil Ahmad Khan, Sr. Advocate with Mr. Ranjan Kumar Srivastava, Advocate For the Opposite Party/s : Mrs. Anuradha Kumari, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) 3/ 08-09-2011 Heard Mr. Shakil Ahmad Khan, learned Senior Counsel appearing on behalf of the petitioner and learned Additional Public Prosecutor appearing on behalf of the State of Bihar. 2. In a criminal prosecution registered in the year 2003 for the offences under Sections 409, 467, 468, 471 and 420 of the Indian Penal Code, the petitioner has approached this Court for the third time under Section 438 Cr.P.C. for grant of anticipatory bail. During the interregnum period of long eight years, he has successfully remained absconding and successfully delayed disposal of the criminal trial. For the first time, the petitioner along with co-accused Sarju Prasad approached this Court in Patna High Court Cr.Misc. No.28197 of 2011 (3) dt.29-08-2011 2 Cr. Misc. No.56667 of 2007 (Sarju Prasad & Anr. Vs. The State of Bihar) for grant of anticipatory bail. The aforesaid anticipatory bail application of the petitioner was heard along with Cr. Misc. No.53366 of 2007 and Cr. Misc. No.1631 of 2008, which were filed on behalf of other co-accused persons, and all the three applications were rejected by a common, but reasoned order dated 14.05.2008 by a Bench of this Court [Coram : Ghanshyam Prasad, J.]. 3. Despite rejection of his prayer for anticipatory bail, the petitioner did not surrender in the court below seeking regular bail, instead almost after two years, he filed a fresh application under Section 438 Cr.P.C. for grant of anticipatory bail giving rise to Cr. Misc. No. 35992 of 2010. Co-accused Sarju Prasad also filed a separate application once again giving rise to Cr. Misc. No.39689 of 2010. Both the applications were heard together and by a common order dated 26.03.2011, their prayer for anticipatory bail was rejected once again with a direction to surrender in the court below and seek regular bail, if so advised. The relevant portion of order dated 26.03.2011 is reproduced hereinbelow: “The petitioners in both cases, apprehending their arrest in a criminal prosecution registered in the year 2003 for offences under sections 409, 467, 468, 471 and Patna High Court Cr.Misc. No.28197 of 2011 (3) dt.29-08-2011 3 420 of the Indian Penal Code, had earlier approached this Court for grant of anticipatory bail by filing a common petition vide Cr.Misc.No.56667 of 2007, which was heard along with Cr. Misc. No. 53366 of 2007 and Cr. Misc. No. 1631 of 2008 filed by the co- accused persons, but all the aforesaid criminal miscellaneous petitions were rejected by a Bench of this Court by a reasoned and speaking order dated 14.05.2008 (Annexure-1 to the petition). The petitioners, Kamla Kant and Sarju Prasad, were posted and working as Executive Engineer and Junior Engineer, respectively, in Tube-well Division at Sasaram. These two petitioners along with some other Government officials are alleged to have swindled huge amount of government money (Rs. 17.11 lacs) in collusion with the contractor without works having been executed. The materials collected during the course of investigation against the petitioners besides other accused persons, have already been detailed in order dated 14.05.2008 passed by a Bench of this Court, rejecting the prayer made on behalf of the petitioners on earlier occasion for grant of anticipatory bail. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For the reasons recorded above, the Patna High Court Cr.Misc. No.28197 of 2011 (3) dt.29-08-2011 4 prayer for anticipatory bail made on behalf of the petitioners is rejected once again. They must surrender in the court below in connection with Akorhigola P.S. Case No. 29 of 2003 dated 03.05.2003 pending in the court of learned C.J.M., Rohtas at Sasaram and seek regular bail, if so advised, which shall be considered on its own merit without being prejudiced by the present order, rejecting their prayer for anticipatory bail.” 4. In view of the aforesaid order dated 26.03.2011, the petitioner was obliged to surrender in the court below and was entitled to seek regular bail. Apparently, the petitioner has not complied with the aforesaid order and direction, and for the third time, almost on the same materials, he has filed the present petition seeking anticipatory bail. 5. Learned Senior Counsel appearing on behalf of the petitioner has submitted that the petitioner is not named in the First Information Report (Annexure-3) as an accused and for the alleged omission and commission, he was subjected to departmental proceeding. On conclusion of the aforesaid departmental proceeding by an order dated 18.08.2006 (Annexure-5), he has been inflicted a punishment of censure and Rs.57,624/- has been directed to be recovered from him. He has Patna High Court Cr.Misc. No.28197 of 2011 (3) dt.29-08-2011 5 also submitted that the aforesaid amount of Rs.57,624/- has already been recovered from the salary of the petitioner and thereafter, the petitioner has been granted promotion on higher post. Therefore, in his submissions, the petitioner is entitled to have the privilege of anticipatory bail. 6. Learned Additional Public Prosecutor appearing on behalf of the State of Bihar has strongly opposed the prayer made on behalf of the petitioner and has placed reliance on the case of Bharat Chaudhary and Another Vs. State of Bihar and Another [2003 SCC (Cri) 1953] in support of contention that the custodial interrogation of the petitioner may be required. 7. From perusal of the First Information Report (Annexure-3) and other materials available on record, it appears that huge amount of Government fund was given in advance to the contractors for sinking the Government tube well in the district of Rohtas at the relevant time. On papers, it was shown that the entire works as per agreement have been completed by the contractors, but on inspection of the spot, it was found that the works have not been done and public money amounting Rs.17.11 lacs was swindled by the accused persons including the petitioner. Admittedly, at the relevant time, the petitioner was posted as an Executive Engineer. The plea of award of minor punishment in Patna High Court Cr.Misc. No.28197 of 2011 (3) dt.29-08-2011 6 the departmental proceeding by an order dated 18.08.2006 (Annexure-5) was available to the petitioner, when his prayer for anticipatory bail was rejected for the first time on 14.05.2008 and again for the second time on 26.03.2011 (Annexure-2). Therefore, this cannot be treated as a new ground for grant of anticipatory bail to the petitioner. 8. By now, it is a well settled proposition of law that departmental enquiry and criminal trial can proceed simultaneously. The object of departmental enquiry and that of criminal prosecution, works in two different and distinct fields. The criminal prosecution is launched for committing a crime against the society in violation of duty assigned to that person, whereas a departmental enquiry is initiated for maintaining discipline in the service and efficiency of public servant. Award of minor punishment in a departmental proceeding can not be a ground for exoneration in a criminal trial. The materials collected during the course of departmental proceeding can not be the basis of findings in a criminal trial or vice-versa. 9. The conduct of the petitioner is a glaring case of defiance of the orders and directions issued by this Court on previous occasions. He appears to be a man of great resources. Though, he has been absconding in the aforesaid Patna High Court Cr.Misc. No.28197 of 2011 (3) dt.29-08-2011 7 criminal case, yet he claims that he is continuously in service and has been given even promotion to the higher post. 10. In the given facts of the case, the petitioner does not deserve any sympathy and his prayer for anticipatory bail has to fail and is hereby rejected for the third time. Now, he must surrender in the court below within a period of four weeks from today in connection with Akorhigola P.S. Case No. 29 of 2003 dated 03.05.2003 pending in the court of learned Chief Judicial Magistrate, Rohtas at Sasaram and seek regular bail, if so advised. 11. Since the petitioner has been absconding in the present case for more than eight years and if the petitioner does not surrender within the time prescribed by this Court, then the learned Chief Judicial Magistrate, Rohtas at Sasaram would be obliged to take all coercive measures for production of the petitioner in the aforesaid criminal case, so that he is brought to justice. If need be, he may get the warrant of arrest executed against the petitioner by writing and/or issuing the directions and orders to higher police officials/ Government officials. Anjani/- (Birendra Prasad Verma, J)