Criminal Misc. No. M-2281 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-2281 of 2009 (O&M) Date of Decision:20.8.2009 Amarjit 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 Amarjit 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 and P3/B 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 Deputy Chief Executive Officer, Roopnagar and approved by Divisional Deputy Director Rural Development and Panchayat Department, Patiala vide his order dated 31.10.2000 Annexure P.4. Criminal Misc. No. M-2281 of 2009 (O&M) -2- 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 the areas of Village Haidon Bet, Manewal and Ramgarh Taha falling in Machhiwara Block received grant of Rs,90,000/- for Gram Panchayat Haidon Bet, Rs.90,000/- for Manewal, Rs.18,000/- for Ramgarh Taha 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, 19/20 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 The payments were also withdrawn from the bank by the accused personally and no payment was made through cheque as is mandatory in a Government grant. Labourers shown to have been paid were also fake. Muster rolls have also been forged. Subsequently, the trial Court has framed the charges in May, 2002 and now the case is pending in the Court of Mr. A.K. Mehta, Additional Sessions Judge, Ludhiana for adjudication. Now the petitioner after 13 years of registration of the said case, has filed this petition on false grounds just to save himself from the legal punishment.. Indeed, the petitioner did not use the amount of grant for the purpose it was issued. He in connivance with other people withdrew the Criminal Misc. No. M-2281 of 2009 (O&M) -3- said amount of grant and misappropriated it. The amount was shown to have been incurred on certain work in the record, but on the spot no work was got done. The Department conducted the inquiry after registration of the case and report was submitted in the year 2000, i..e, after four years of registration of the case. During this long period, the facts can be manipulated and defaults can be rectified. The departmental inquiries are no ground to quash the FIR. In fact with the passage of time, the petitioner has manipulated the facts. Moreover, the matter is pending before the learned trial Court which will decide as to whether the petitioner deserves exoneration or not. The petitioner has actively participated in the misappropriation of funds. 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 great eloquence that the departmental inquiry initiated against the petitioner was assigned to the Deputy Chief Executive Officer, Zila Parishad, Roopnagar who after giving full opportunity to the complainant as well as the petitioner arrived at the conclusion that the petitioner did not embezzle any amount of the grant given to the Gram Panchayat of Haidon Bet, Manewal and Ramgarh Taha. The Inquiry Officer conducted a detailed inquiry by recording the statements of concerned witnesses/ officials working during the relevant period and also looked into the relevant record. It is only then the petitioner was not found guilty. The charge/ allegation of embezzlement was found to be false. The Inquiry Officer came to the conclusion that the Criminal Misc. No. M-2281 of 2009 (O&M) -4- payment to the tractor owners who had levelled the land, was made through cheques and the same was withdrawn by the tractor owners from the bank. The amount was withdrawn from the bank for making payment to the labourers and the same was distributed amongst them because they were not ready to accept the cheques. The inquiry report of Deputy Chief Executive Officer was submitted to the Divisional Deputy Director, Rural Development and Panchayat Officer, Patiala, who agreed with the report in toto, exonerating the petitioner from the charge of embezzlement. 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. The petitioner was serving as Panchayat Secretary, whose duty was to maintain the records. To prepare measurement book, it was the duty of Junior Engineer and not that of Panchayat Secretary. Davinder Singh, Panchayat Secretary, one of the co-accused in the present FIR had sought the quashment of the FIR. Vide order dated 20.1.2006 Annexure P.5, the same has been quashed. There were identical allegations against Devinder Singh Panchayat Secretary. The case being fully covered with that of Davinder Singh, the criminal proceedings, i.e., the FIR Annexure P.1, charge order/ charge-sheet Annexure P.2 and P.3 deserves to be quashed by this Court to prevent further abuse of process of law. 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 Criminal Misc. No. M-2281 of 2009 (O&M) -5- 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. As against this, the learned State Counsel reiterating the facts 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 the 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 2000, which is obviously after 4 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 and Criminal Misc. No. M-2281 of 2009 (O&M) -6- circumstances 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 19/20 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 P2, P3/A, and P3/B, the petitioner along with others has been charge-sheeted. It is the material collected during the investigation and evidence led in Court, which decides Criminal Misc. No. M-2281 of 2009 (O&M) -7- 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. In Annexure P.4, it has been observed by the Deputy Chief Executive Officer, Zila Parishad, Roopnagar that “Keeping in mind, I have arrived at this conclusion that Gram Panchayats Haidon Bet and Manewal had received grants for levelling of earth which was spent on the work of levelling of earth. This is supported by the statements of tractor owners, statement of defence witnesses and evidence produced by Sh. Amarjit Singh Panchayat Secretary in his favour and the witnesses which have been mentioned in the complaint letter by opposite party. This could not be proved by them regarding levelling of earth grant money has not been embezzled. Employee was found innocent during investigation. Therefore, it is recommended to exonerate the employee and complaint be filed.” As observed by the Apex Court in re: Pankaj Kumar v. State of Maharashtra & Others, 2008(4) Recent Criminal Reports 890 (S.C.) Criminal Misc. No. M-2281 of 2009 (O&M) -8- “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, P3/A and P3/B. 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 Criminal Misc. No. M-2281 of 2009 (O&M) -9- 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. 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