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IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Pranay Verma, JJ.
Rajendra Kumar Gautam v. State of M. P.
Miscellaneous Criminal Cases No. 3139 of 2021 and 2603 of 2021(Indore); Decided on 28.9.2021
(1) Prevention of Corruption Act, 1988 -- S.20 -- legal presumption against public servant -- complainant turned hostile or even died -- conviction possible on basis of statements of other witnesses including panch witnesses. (2001) 1 SCC 691 followed. [Para 26
(2) Criminal P. C., 1973 -- S. 482 -- Prevention of Corruption Act, 1988 -- Ss. 7,13(1)(d),13 (2)and 20-Penal Code, 1860 -- S. 120B -- Central Civil Services (Classification, Control and Appeal) Rules, 1965 -- R.14 -- quashing of FIR -- exoneration in departmental enquiry -- whether finding in departmental inquiry can foreclose right of prosecution to proceed with FIRs and criminal cases against applicants -- held -- findings of inquiry report solely based on statement of complainant and another witness -- in criminal case, prosecution in tends to produce 21 witnesses -- cannot be said that proceeding with criminal cases will be futile and chances of conviction in criminal trial involving same facts are totally bleak -- findings mentioned in order of disciplinary authority do not form any legal impediment for proceeding with criminal case -- there was neither any occasion for departmental authorities to examine aspect of violation of provisions of PC Act, presumption clause etc., nor their findings can be read to hold that no contravention of provisions of PC Act is established -- culpability of applicants was examined on touch stone of conduct rules based on limited evidence produced in enquiry -- in criminal case, Court will examine evidence in light of provisions of PC Act -- exoneration in departmental inquiry does not draw such iron curtain on case of prosecution that prosecution cannot be permitted to proceed with criminal case -- no interference warranted. (2012) 9 SCC 685 followed. (2007) 14 SCC667, (2010) 8 SCC 775, (2018) 11 SCC 305 and (2011) 3 SCC 581discussed. (1996) 9 SCC 1 distinguished. No. 5 of 2020 (SC) held per incuriam. [Paras 26, 29, 30 & 34
(3) Court -- duty -- to give effect to existing law wherever applicable and not to pass any order/judgment which runs contrary to law or negatives existing binding statutory provision. [Para 26
(4) Precedent -- judgment of Supreme Court -- cannot be read as statute -- should be understood by keeping factual context in mind
-- little difference in facts, an additional fact or a different statute applicable may make lot of difference in precedential value of decision. (2006) 1 SCC 638, (2016) 3 SCC 762, (2002)3 SCC 533, (2002) 3 SCC 496, (2006) 1 SCC 368 and (2003) 2 SCC 111 followed. 2003(1) MPLJ 513, (2020)4 SCC 1 and (2015)2 SCC 189 referred to. [Paras 31 to 33
¼1½ Òz"Vkpkj fuokj.k vfèkfu;e] 1988 && èkkjk 20 && y¨d lsod d¢ fo#) fofèkd mièkkj.kk && f'kdk;rdrkZ d¢ i{kæ¨gh ;k e`r g¨us ij Òh && iap lk{khx.k lfgr vU; lkf{k;¨a d¢ dFku¨a d¢ vkèkkj ij n¨"kflf) laÒoA ¼2001½ 1 ,l lh lh 691 vuqlfjrA ¼iSjk 26
¼2½ naM çfØ;k lafgrk] 1973 && èkkjk 482 && Òz"Vkpkj fuokj.k vfèkfu;e] 1988 && èkkjk 7] 13 ¼1½ ¼Ä½] 13 ¼2½ rFkk 20 && naM lafgrk] 1860 && èkkjk 120 [k && d¢aæh; flfoy lsok ¼oxÊdj.k] fu;a=.k v©j vihy½ fu;e] 1965 && fu& 14 çFke bfÙkyk fji¨VZ dk vfÒ[kaMu && foÒkxh; tk¡p esa foeqfä && foÒkxh; tk¡p d¢ fu"d"kZ d¢ vkèkkj ij vkosndx.k d¢ fo#) çFke bfÙkyk fji¨VZ v©j nkafMd çdj.k¨a esa vkxs dk;Zokgh djus dk vfÒ;¨tui{k dk vfèkdkj iqj¨cafèkr fd;k tk ldrk gS ;k ugÈ && vfÒfuèkkZfjr && tk¡p çfrosnu d¢ fu"d"kZ d¢oy f'kdk;rdrkZ v©j ,d vU; lk{kh d¢ dFku ij vkèkkfjr && nkafMd çdj.k esa vfÒ;¨tui{k dk 21 lk{kh çLrqr djus dk vk'k; && ;g ugÈ dgk tk ldrk fd nkafMd çdj.k¨a esa vkxs dk;Zokgh djuk fu"Qy g¨xk rFkk mUgÈ rF;¨a ij nkafMd fopkj.k esa n¨"kflf) dh laÒkouk fcYdqy de gS && vuq'kklfud çkfèkdkjh d¢ vkns'k esa mfYyf[kr fu"d"k¨Za ls nkafMd çdj.k esa vkxs dk;Zokgh djus d¢ fy, d¨Ã fofèkd voj¨èk xfBr ugÈ && foÒkxh; çkfèkdkjhx.k d¨ u r¨ Òz"Vkpkj fuokj.k vfèkfu;e d¢ micaèk¨a d¢ vfrØe.k] mièkkj.kk [kaM vkfn d¢ igyw ij fopkj djus dk volj çkIr Fkk] u mud¢ fu"d"kZ dk vFkZ ;g vfÒfuèkkZfjr djus d¢ fy, gh yxk;k tk ldrk gS fd Òz"Vkpkj fuokj.k vfèkfu;e d¢ micaèk¨a dk mYyaÄu fl) ugÈ gqvk && vkosndx.k dh n¨f"krk d¨ tk¡p esa is'k fd, x, lhfer lk{; d¢ vkèkkj ij vkpj.k fu;e¨a dh dl©Vh ij ij[kk x;k Fkk && nkafMd çdj.k esa U;k;ky; Òz"Vkpkj fuokj.k vfèkfu;e d¢ micaèk¨a d¢ vky¨d esa lk{; ij fopkj djsxk && foÒkxh; tk¡p esa foeqfä ls vfÒ;¨tu d¢ i{kdFku ij ,slk vVy iVk{ksi ugÈ g¨rk fd vfÒ;¨tui{k d¨ nkafMd çdj.k vkxs cढ+kus dh vuqefr ugÈ nh tk ldrh && gLr{ksi okaNuh; ugÈA ¼2012½ 9 ,l lh lh 685 vuqlfjrA ¼2007½ 14 ,l lh lh 667] ¼2010½ 8 ,l lh lh 775] ¼2018½ 11 ,l lh lh 305 rFkk ¼2011½ 3 ,l lh lh 581 foosfprA ¼1996½ 9 ,l lh lh 1 çÒsfnrA nkafMd vihy Ø&5 lu~ 2020 ¼mPpre U;k&½ vuoèkkurk ls fu.kÊr vfÒfuèkkZfjrA ¼iSjk 26] 29] 30 ,oa 34
¼3½ U;k;ky; && drZO; && fo|eku fofèk d¨] og tgk¡ Òh ykxw g¨] çÒkoh djuk rFkk ,slk d¨Ã Òh vkns'k@fu.kZ; ikfjr ugÈ djuk t¨ fofèk d¢ çfrdwy tkrk g¨ ;k fo|eku vkc)dj dkuwuh micaèk d¨ udkjrk g¨A ¼iSjk 26
¼4½ iwoZ U;k; && mPpre U;k;ky; dk fu.kZ; && dkuwu eku dj ugÈ iढ+k tk ldrk && rF;kRed lanÒZ è;ku esa j[k dj le>k tkuk pkfg, && rF;¨a esa Fk¨M+s ls varj] fdlh vfrfjä rF; ;k fdlh vU; dkuwu d¢ ykxw g¨us ls iwoZ fu.kZ; d¢ :i esa fofu'p; d¢ ewY; esa cgqr cM+k varj vk tk,xkA ¼2006½ 1 ,l lh lh 638] ¼2016½ 3 ,l lh lh 762] ¼2002½ 3 ,l lh lh 533] ¼2002½ 3 ,l lh lh 496] ¼2006½ 1 ,l lh lh 368 rFkk ¼2003½ 2 ,l lh lh 111 vuqlfjrA 2003 ¼1½ ,e ih ,y ts 513] ¼2020½4 ,l lh lh 1 rFkk ¼2015½2 ,l lh lh 189 fufnZ"VA ¼iSjk 31 ls 33
ORDER
Paul, J. -- 3 M.Cr.C. No.3139/2021 & M.Cr.C. No.2603/2021 These petitions filed u/S.482 of the Code of Criminal Procedure 1973 (for short “Cr.P.C.”) seek to challenge the FIRs and charge sheets on the singular ground that the petitioners, employees of department of CGST and Central Excise were subjected to disciplinary proceedings arising out of a trap/transaction and enquiry officer exonerated both of them which finding got stamp of approval from the disciplinary authority. Hence, FIR and criminal case founded upon the same transaction/trap are liable to be axed.
2. Draped in brevity, the relevant facts as pleaded are that the petitioner Rajendra Kumar Goutam was working as Inspector, CGST, Ujjain whereas other petitioner Ishaq Khan was working in the same department as Head Constable. It is averred in the petition that as per prosecution story, on 31.5.2016, complainant Vikas Sharma submitted a written complaint in the Lokayukta Office, Indore stating that he is Manager of LNR Global Trading Company, Sendhwa and a letter dated 27.5.2016 was issued by the Custom House to CGST office, Indore through fax served on 30.5.2016 for the purpose of conducting office verification of the complainant’s office. In relation to this fax communication, complainant came to CGST office, Indore for the verification where he met Rajendra Kumar Goutam and in turn Goutam called other petitioner Ishaq Khan who told the complainant that said letter had not reached their office. As per prosecution story, the petitioner Rajendra Kumar Goutam told the complainant that he would require a taxi for travelling in order to conduct office verification and in addition, complainant will have to give him Rs.30,000/- for getting the verification done. Thereafter, the petitioner introduced the complainant to Superintendent of the said department Shri.R.K. Jain who also demanded a taxi and Rs.30,000/- for conducting the abovementioned verification. During this conversation, petitioner Ishak Khan was also standing there. The complainant desired that petitioners and co-accused persons should be caught red handed.
3. Acting upon the said written complaint dated 31.5.2016, a trap was conducted and Inspector S.P.S Raghav has handed over a recorder with memory card to the complainant for recording the demand of bribe by the accused persons. The complainant along with constable Kanchan Singh (shadow witness) went to the office where petitioners were working by keeping the voice recorder in “ON” mode secretly. The complainant met Shri R.K. Jain, Superintendent (co-accused) in the said office. During the conversation, complainant requested said Shri Jain to reduce the amount of bribe and complainant offered Rs.15,000/- for completion of said work. As per prosecution story, Shri. Jain agreed. After said conversation was recorded, voice recorder and memory card were submitted to Lokayukta Office, Indore. The shadow witness constable Kanchan Singh was standing in gallery while conversation was being recorded by the complainant. The complainant brought the recorded conversation along with Rs.8000/- to Inspector, Lokayukta, Indore. As per prosecution’s case, the recorded conversation revealed that coaccused R.K. Jain has agreed that verification process will be conducted on receiving Rs.15,000/- as bribe. In turn, Inspector S.P.S Raghav asked to provide two gazetted officers as “panch witnesses”. Letter dated 31.5.2016 was sent for this purpose and in turn, panch witnesses were made available.
4. The trap team along with shadow witnesses conducted the trap. The hands of petitioners and co-accused persons were held from their wrists. The petitioner Goutam’s hands were put in Sodium Carbonate solution. The solution turned pink. The samething happened with coaccused Ishak Khan. The bribe money was found on a table beneath papers. The concerned Inspector seized Rs.7000/- from the table of Rajendra Kumar Goutam and Rs.1000/- from the table of Ishaq Khan.
5. This incident resul
Exoneration in a disciplinary proceeding does not automatically terminate criminal prosecution; both proceedings are governed by different evidentiary standards.
The court ruled that if a petitioner is exonerated in a departmental inquiry on merit, the same allegations cannot be prosecuted further in criminal proceedings due to the higher standard of proof re....
If the exoneration in the departmental proceedings is on merits and the allegations are found to be not sustainable, the criminal prosecution on the same set of facts cannot be allowed to continue.
At the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the materi....
Point of law : If allegations in the departmental inquiry could not be proved on merit and the person is held to be innocent, criminal prosecution on the said facts cannot be permitted to be continue....
Exoneration in departmental proceedings on merits can lead to the quashing of criminal proceedings based on the same allegations, as the higher standard of proof in criminal law makes it unlikely tha....
Exoneration in departmental proceedings on merits can bar the continuation of criminal proceedings based on the same allegations due to the differing standards of proof required in criminal law.
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