Ajay Kumar Tyagi vs State

Kailash Gambhir, J.—The present petition filed u/s 482 of the Criminal Procedure Code seeks quashing of the criminal proceeding arising from FIR No. 51/2001 dated 1/10/2001 u/s 7/13 of the Prevention of Corruption Act, 1988 registered with the anti-corruption wing of the Delhi Police, and pending before the Special Judge, Delhi.

Before delving on the contentions of the parties it would be relevant to refer to the conspectus of facts of the instant case, which is reproduced below:

The complainant Sh. Surinder Singh, a constable with the Delhi Police applied for a water connection on 28/01/2000 in the name of his wife Smt. Sheela Devi in the premises bearing No. 432-A, Gali No. 2, Village Mandoli, Delhi. On 22/08/2000 the file of the complainant was cleared by the Assistant Engineer. It was alleged that Sh. Ashok Kumar, clerk sent the file to the petitioner in April 2001 after holding it back for 3-4 months. Sh. Ajay Kumar Tyagi the petitioner herein, a Junior Engineer with Delhi Jal Board was given charge of ward No. 85, Village Mandoli while he was posted at Nandnagri, Shahdara Office in November 2000. On 1/10/2001 the complainant lodged a complaint with the Anti Corruption Branch complaining that the petitioner demanded bribe of Rs. 2,000/- for clearing the file with the condition that initially Rs. 1,000/- shall be paid and remaining Rs. 1,000/- shall be paid after the clearance of file. Trap was laid and as per the case of prosecution the petitioner demanded and accepted the bribe of Rs. 1,000/- and an FIR No. 51/2001 u/s 7/13 of the Prevention of Corruption Act, 1988 was filed against him. On 10/10/2001, the Executive Engineer (W) SHD-I issued a note that the petitioner was forcefully trapped. In January 2002 the petitioner was served with the Articles of Charges for the Departmental Proceedings. On 19/09/2002 Charge sheet in the criminal case was filed. On 24/1/2004 charges were framed by the Special Judge and on 20/3/2006 the Enquiry Officer, Sh. Arun Kumar made his report exonerating the petitioner in the Departmental Proceedings. However, copy of the said report was not given to the petitioner, therefore, in September 2006, the petitioner applied under Right to Information Act and then a copy of the said report was obtained. The principal contention raised by the counsel for the petitioner is that since the petitioner has been exonerated in the disciplinary proceedings on same very charges by a detailed speaking order, therefore, the entire criminal proceeding in FIR No. 51/2001 dated 1/10/2001 u/s 7/13 of the Prevention of Corruption Act, 1988 registered with the anti-corruption wing of the Delhi Police, need to be quashed. The counsel contended that the law laid down by the Hon''ble Apex Court in P.S. Rajya v. State of Bihar 1996 SCC (CrI.) 897; V.K. Bhutiani v. Central Bureau of Investigation in Crl. Rev. No. 945/203 decided on 20/04/2005 and in Surkhi Lal Vs. Union of India (UOI), squarely covers the present case. The counsel urged that since on the same set of facts, allegations and charges petitioner has been exonerated after the full-fledged departmental enquiry was held against him, therefore, it is quite unlikely that the same charges could be proved, by the prosecution in criminal proceedings requiring much stringent standard of proofs. The counsel finally submitted that the continuation of criminal proceedings on same charges which formed basis for the departmental proceeding and where the petitioner has been given a clean chit, would be futile exercise and gross abuse of the process of court and thus, the same should be quashed.

Per contra, Mr. Manoj Ohri, APP refuted the said contentions of the counsel for the petitioner and contended that merely because the petitioner has been exonerated in the departmental proceedings it cannot be said that it is quite unlikely that the same charges could not be proved in criminal proceedings. The counsel urged that the present petition filed by the petitioner is an abuse of the process of the court and the same should be dismissed.

I have heard learned Counsel for the parties at considerable length. As regards exercise of power u/s 482 CrPC, while relying on its earlier decision in State of Karnataka Vs. L. Muniswamy and Others, the Apex Court has held in the case of B.S. Joshi v. State of Haryana 2003 CBC 393 (Supreme Court) that it would not be expedient to allow a lame prosecution to continue and the ends of justice are higher than the ends of mere law. In this connection the following extract from paragraph 10 of the aforesaid case in B.S. Joshi is pertinent.

In State of Karnataka v. L. Munniswamy and Ors. considering the scope of inherent power of quashing u/s 482, this Court held that in the exercise of this wholesome power, the High court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature.

Also, it is no more res integra that the standard of proof required in criminal proceedings is higher than that required before the disciplinary authority, therefore if an accused is exonerated before the disciplinary authority then criminal proceedings on same set of facts and charges cannot be allowed to continue against him.

The settled law as noticed and summarised by this Court in Sunil Gulati v. RK Vohra 2007 [1] JCC 220 is that where there is a complete exoneration on merits in the adjudication proceedings, the continuation of criminal proceedings on the same set of facts cannot be sustained. In Sunil Gulati''s case (supra), A.K. Sikri, J. of this Court relying on the judgment of the Supreme Court in Standard Chartered Bank and Ors. v. Directorate of Enforcement and Ors. 2006 (1) JCC 488 has held as under:

...In fact, various cases of the Supreme Court, note whereof is taken above, deal with different situations. The principles which can be culled out from the aforesaid judgments, when all these judgments are read out harmoniously, would be the following:

On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously. For initiating criminal proceedings one does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature.

The findings in the departmental proceedings would not amount to res judicata and initiation of criminal proceedings in these circumstances can be treated as double jeopardy as they are not in the nature of ``prosecution''`.

In case adjudication proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the Tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal court by producing necessary evidence.

In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused with criminal liability when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any act.

From a perusal of the Sunil Gupta''s case (supra), it is apparent that a distinction has been drawn where exoneration in an adjudicating proceeding on a given set of facts and evidence is on merits vis-a-vis where exoneration in adjudicating proceeding is either not on merits or criminal proceeding is based upon different set of facts and evidence.

Therefore, to ascertain the effect of the exoneration in the adjudication proceedings on the criminal proceedings, in a given case it has to be seen whether:

(i) The criminal prosecution is based on same set of facts/allegations and evidence which was before the adjudicating authority or not; and

(ii) Whether exoneration by the adjudicating authority is on merits or not.

It is a settled legal position that an ``acquittal on merits''` is an acquittal after trial on a consideration of the facts duly proved as per rules of evidence as distinguished from the acquittals occurring due to technical defects such as want of sanction, facts not proved as rule of evidence not followed, benefit of doubt etc. To put it differently, an acquittal is said to be on merits when it is based on a positive finding of innocence of the accused. On the flip side, if the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings.

In P.S. Rajya Vs. State of Bihar, apart from departmental proceedings against the appellant for owning assets disproportionate to his known sources of income, proceeding were launched to prosecute him under the Prevention of Corruption Act, 1947. Thereafter, the appellant was completely exonerated in the departmental enquiry. While holding that the pending criminal proceedings were unsustainable in law, the Supreme Court explained the rationale in para 17 as under:

At the outset we may point out that the learned Counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the values one wonders what is there further to proceed against the appellant in criminal proceedings. In the backdrop of the aforesaid legal position, it has to be seen as to whether in the instant case the exoneration of the petitioner by the adjudicating authority passes the test of exoneration on merits. It is not in dispute that both the proceedings, i.e. criminal and adjudication are based upon the same set of facts/allegations. The standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. In the instant case the charge in the departmental proceedings and in the criminal proceedings is one and the same. If the charge which is identical could not be established in a departmental proceedings then one wonders what is there further to proceed against the appellant in criminal proceedings. The conclusion as a result of the above position is that the criminal proceedings against the petitioner in the instant case cannot validly continue. The Respondent has itself exonerated the petitioner in the adjudication proceedings on merits and its order has attained finality. The continuation of criminal proceedings on identical facts and requiring a higher degree of proof cannot be justified. Consequently, criminal proceedings on same set of facts cannot be allowed to continue against the petitioner.

At this juncture it would be worthwhile to reproduce charges as framed in the Departmental Enquiry and also in the criminal case, the same are reproduced as under:

I, P.K. Bhasin, Special Judge, Delhi hereby charge you Ajay Kumar Tyagi s/o Shri Shiv Raj Singh Tyagi as follows:

Firstly, that you while being employed as a Junior Engineer, Civil Delhi Jal Board as a public servant in discharge of your official duties demanded Rs. 2000/- on 24.9.2001 which you agreed to accept in two instalments of Rs. 1000/- and then on 1.10.2001 you obtained first instalment of Rs. 1000/- from the complainant Surinder Singh s/o Shri Ram Bhajan at about 1.30 P.M. at the office of J.E. Nand Nagri, Jal Board, as a motive or reward in consideration for making a report in water connection file of his wife Smt. Sheela Devi and thereby you committed an offence punishable u/s 7 of Prevention of Corruption Act, 1988 and within my cognizance.

Secondly, you on 1.10.2001 on the aforesaid time and place being public servant employee as aforesaid obtained Rs. 1000/- from the complainant above named as pecuniary advantage for yourself by corrupt or illegal means or otherwise by abusing your position as such public servant and thereby you committed an offence of criminal misconduct as specified u/s 13(1)(d) and punishable u/s 13(2) of the Prevention of Corruption Act, 1988 and within my cognizance.

And I hereby direct that you be tried by this Court for the aforesaid offences. Spl. Judge/Delhi

The above charges are read over and explained to the accused who is questioned as under:

Q. Do you plead guilty or claim trial?

Ans. I plead not guilty and claim trial.

RO and AC Spl. Judge/Delhi

24.1.2004

ARTICLE OF CHARGE AGAINST SH. AJAY KUMAR TYAGI S/O SH. SHIV RAJ SINGH TYAGI (C )

C/O E.E. (W) SHD I, DELHI JAL BOARD

On 1.10.2001 Shri Ajay Kumar Tyagi s/o Shri Shiv Raj Tyagi r/o Village hissoli, P.O. and P.S. Murad Nagar, U.P. while as J.E., Delhi Jal Board, Nand Nagari Office, being a Public Servant in discharge of his official duties by corrupt and illegal means or otherwise, abusing his official position, demanded, accepted and obtained Rs. 1,000/- (One thousand) as illegal gratification other than legal remuneration from Shri Surinder Singh s/o Shri Ram Bhajan r/o H. No. 432-A, Gali No.2, 80 Sq. Yards, Village Mandoli, Delhi in consideration for giving a report on the water connection application.

The above act on the part of Shri Ajay Kumar Tyagi, J.E. Delhi Jal Board, reflects lack of integrity and devotion to duty and conduct unbecoming of a Govt. Servant and thus violating Rule 3 of the CCS (Conduct) Rules, 1964.

(S.K. Srivastava)

MEMBER (ADMINISTRATION)

In view of the above, there is not even an iota of doubt that the charges framed in both the proceedings are the same. Considering the foregoing discussion, I am of the view that if the departmental proceedings end in a finding in favour of the accused in respect of allegations which also form basis for criminal proceedings then departmental adjudication will remove very basis of criminal proceedings and in such a situation continuance of criminal proceedings will be a futile exercise and an abuse of the process of Court. I find that the charge in the present case is based on the same allegations which were under consideration before the Enquiry Officer of the Delhi Jal Board. If the charge could not be proved in the departmental proceedings where the standard of proof was much lower it is very unlikely that the same charge could be proved in a criminal trial where the standard of proof is quite stringent comparatively. Thus, the prosecution of the petitioner in criminal proceedings would only result in his harassment. In this backdrop, the petition is allowed. The criminal proceeding in FIR No. 51/2001 dated 1/10/2001 u/s 7/13 of the Prevention of Corruption Act, 1988 registered with the anti-corruption wing of the Delhi Police, which is pending before the Special Judge, Delhi is quashed. The petitioner is discharged. With these directions, the present petition is disposed of.