Point of Law : Principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy.

ORDER :

1. Petitioners have been charged under Sections 420, 467, 468, 471 read with Section 120-B of the Indian Penal Code (for short ‘IPC’), in trial in Case No. 4/2 of 2011, titled as CBI Vs. Suraj Kant and others pending before Chief Judicial Magistrate-Special Judicial Magistrate for CBI, Shimla.

2. Petitioners have approached this Court, by way of present petition, being aggrieved by order dated 15.6.2019 passed by the trial Court, whereby an application under Section 311 Cr.P.C., filed on behalf of the accused persons to examine witness, i.e. concerned Clerk from the office of Superintending Engineer alongwith original record of the documents sought to be proved and exhibited by the petitioners/accused persons, has been rejected.

3. In the trial, after closing of evidence of prosecution on 30.6.2016, statements of accused persons under Section 313 Cr.P.C. were recorded on 24.12.2016.

4. On 4.5.2019, counsel for the petitioners had tendered in evidence original copy of Memorandum of Articles of Charge dated 27.6.2011 alongwith Annexures I to IV, certified copy of report of Departmental inquiry dated 25.11.2018 obtained under Right to Information Act, and Letter/Memorandum dated 31.1.2012, on behalf of accused Tilak Raj with request to grant of permission to prove these documents (Mark A to Mark C) in accordance with law. Statement of the counsel, to this effect, was recorded on that day and thereafter vide even dated order, time as prayed for moving appropriate application for further defence evidence was granted, as last opportunity and case was adjourned for 13.6.2019.

5. In furtherance to aforesaid order, petitioners preferred an application under Section 311 Cr.P.C. seeking permission to summon Clerk of the Office of Superintending Engineer alongwith complete record, referred in the application pertaining to the Departmental Inquiry initiated against petitioners with respect to the misconduct for omissions/commission on the basis of which Criminal Case has been launched against the petitioner.

6. The application was opposed by respondent-CBI on the ground that it was filed to delay the trial and further that there was no reference of these documents in the statement of accused recorded under Section 313 Cr.P.C. and further that report of Departmental Inquiry was not relevant for adjudication of criminal proceedings and thus their production, exhibition and proof was not essential for just and fair decision of the case.

7. Accepting the plea of respondent-CBI, learned Magistrate rejected the application of the petitioner, on the ground that Criminal Proceedings were initiated against the petitioner by submitting final report in the Court on 5.1.2011, whereas Departmental Inquiry was initiated on 27.6.2011 and, therefore, outcome of Departmental Inquiry was not relevant to decide the criminal proceedings and thus proposed witness was not necessary and essential to be examined for proper adjudication of the case.

8. To substantiate the view taken by the trial Court, reliance has been placed on State (NCT of Delhi) Vs. Ajay Kumar Tyagi (2012) 9 SCC 685, wherein three Judges Bench of the Supreme Court has held as under:-

“25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy.”

9. Learned counsel for the petitioner has placed reliance upon pronouncement of the Supreme Court on Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EBW, CBI and another, (2020) 9 SCC