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Judgment
Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the first respondent â€" State and as well the
learned counsel appearing for the second respondent herein. Perused the records.
The petitioners have sought for quashing of the registration of the FIR in Crime No.27/2010 (PCR No.1729/2010) on the basis of the Reference
order passed by the VI Addl. CMM, Bengaluru, for the alleged offences punishable u/ss.468, 471, 168, 109, 202, 176, 177, 201, 120B, 420 of IPC.
Before adverting to the grounds urged in the petition and as well the arguments addressed by the learned counsels in detail, it is just and necessary
for this court to bear in mind the factual matrix of this particular case.
The second respondent has filed a private complaint stating that he is a practicing Advocate in Bengaluru by profession and he is a watch dog and
in the interest of general public, the complaint is filed as the media evinced interest over the Narco analysis and brain mapping on criminals by the first
petitioner â€" Dr.S. Malini, Assistant Director, in the department of Forensic Science Laboratory Bengaluru.
The complainant has stated that the petitioner No.1 herself has tampered the documents to gain the employment in the Forensic Psychology
Department of Forensic Laboratory, Bengaluru. It is the clear case of the complainant that the first petitioner though was appointed as a Lie-
Detection Technician in FSL, Bengaluru, on contract basis from July 1999 to 2007 her employment was renewed yearly basis. In the year 2007, the
department refused to extend her services on the basis of the Government Rules and Supreme Court decisions. The Government in fact has notified
calling applications for the post of Assistant Director, Forensic Psychology Division, Forensic Science Laboratory by framing Special Rules in the year
2006. For the said post, the first petitioner has applied and she has produced certain documents before the authorities, wherein the first petitioner has
produced a false, forged S.S.L.C. marks card and work experience certificate and thereby cheated the Government to get the employment. It is
alleged in the complaint that the petitioner No.1 had furnished her Date of Birth as 12.5.1964 enclosing her SSLC Certificate which was concocted
and fake document, showing her Date of Birth as 1964. But according to the original marks card and other documents her Date of Birth was
12.5.1960.
 It is alleged that she has not only produced the SSLC Marks card, but she has also produced the degree marks card and also Masters degree marks
card and certificates before the authorities. On comparison of the Degree Certificates and the Master’s Degree certificates, it is clear that she
has produced a fake, concocted and created SSLC marks card showing her Date of Birth as 12.6.1964. It is further alleged that she has passed Three
years B.Sc., course in the year April, 1980 and passed the Masters degree in the year April, 1992. If the concocted Date of Birth in the SSLC marks
card is juxtapose compared with the above said two degree certificates that would show that she has completed her degree within 16 years and
Masters degree within 18 years which is highly impossible and it is against to the recognized limitation of age under law and fixation of the age limit for
completing those educational qualifications.
It is further categorically alleged that a confidential enquiry was conducted by the higher Police officials and found that the Date of Birth of the first
petitioner was fake and actual Date of Birth was 1960. The said fake certificate was actually attested by her own husband i.e., petitioner No.2
knowing fully well that the said documents were fake and in order to play fraud joined hands with his wife in attesting those documents with the
knowledge that the said documents are created documents for the purpose of getting appointment. Secondly, it is contended that even after joining the
service, she has been attending private nursing homes and in order to cheat the Government she has extended her services to the private nursing
homes which is against and violation of the Conduct Rules and accordingly, considering all these things, the department has recommended for her
discharge and ultimately she was discharged from service but yet, the above said offence committed by her along with her husband has not been
unearthed by the Government. The matter also went to the Lokayuktha for their grave criminal acts. The complainant has preferred complaint before
the Ulsoor gate Police Station and also to the Commissioner of Police, but in spite of that no action has been taken. Therefore, inevitably in order to
un-earth the above said offences committed by the petitioners, the respondent No.2 has filed a private complaint and Reference has been made by the
Police for investigation and report. When the Police are investigating the matter, it appears the court has granted stay and the investigation is now
stand still.
Making above said allegations specifically with regard to the tampering and creating of the SSLC marks card and giving false statement before the
authorities in order to get the job and thereafter cheated the Government in serving the other private institutions though she was a Government
servant, a private complaint has been lodged against the petitioners.
Bearing in mind the above said factual aspects, it is worth to refer here the grounds urged by the learned counsel before this court elaborating his
arguments with reference to the averments in the petition. It is specifically contended by the learned counsel for the petitioner that the complaint has
been filed with a malafide intention by the respondent No.2 in order to defame the petitioners in the public view. It is also contended that the
allegations made in the complaint do not attract or constitute any offences. Even if the entire complaint averments translate into evidence, it reveals
that only due to vengeance, a false complaint has been lodged.
It is the specific contention of the learned counsel for the petitioners that the petitioners in fact on the above said allegations, made by the
complainant and also certain inquiries by the Police and competent authorities, the petitioner No.1 was discharged from her duties vide order dated
28.2.2009 by the Government. The said order was challenged before the Karnataka Administrative Tribunal and in fact, the Karnataka Administrative
Tribunal has confirmed the said discharge order. In the body of the said order, the allegations made in the complaint have been in detail considered and
a finding has been given by the Karnataka Administrative Tribunal that petitioner No.1 has committed such misconduct. However, it is said that the
discharge order was simplicitor in nature. Therefore, no interference was called for. Hence, the Karnataka Administrative Tribunal has dismissed the
petition filed by the first petitioner.
It is further argued that, being aggrieved by the said order of the Karnataka Administrative Tribunal, the petitioners have approached this court in
Writ Petition No.23406/2010 and the Division Bench vide judgment dated 15.4.2013 has by a detailed judgment set aside the order of the Karnataka
Administrative Tribunal and discharge order passed by the Government discharging the first petitioner was set aside and in fact, in the Writ Petition,
the Division Bench in detail considered the allegations made against the petitioners, in the complaint and consequently held that the order of discharge
was illegal and therefore, set aside the said order.
On the basis of the above aspects, the learned counsel submitted that in the departmental proceedings virtually, the petitioner No.1 has been
exonerated by a detailed considered order passed in the Writ Petition. Therefore, the same cannot be agitated by way of a private complaint. The
matter has been concluded by a judicial order, therefore, such facts cannot be gone into once again by a criminal court.
Secondly, the learned counsel has submitted that the petitioner has not filed any affidavit stating that he has exhausted the remedy by approaching
the Police and thereafter, he has approached the court and to that effect, he has not filed any affidavit as contemplated in the ruling of the Hon'ble
Apex Court reported in (2015) 6 SCC 287 between Priyanka Srivastava & another Vs. State of UP & Others. For all these reasons, the learned
counsel has pleaded for allowing of the petition and for quashing of the private complaint and consequential reference order and registration of FIR
against the petitioners herein.
Per contra, the learned counsel for the respondent No.2 strenuously contended that the complaint averments clearly indicates that it is a serious
allegation made with regard to concoction and tampering of the Government documents particularly a fake SSLC Marks card was given in order to
grab the Government job by cheating the Government. It is contended that previous to filing of the complaint, a Police Officer of the Rank of
Commissioner has virtually enquired into the matter and found that the said documents were fake and submitted his confidential report to the
Government and there was hue and cry in the legislative assembly by the opposition leader Mr. M.C. Nanaiah and in that context due to the political
pressure, the Government considered the confidential report and discharged the accused. But the offence committed by the petitioners have not been
dealt with hitherto by any court of law or by the Police. Therefore, the complaint is very well maintainable and the order passed by the learned
Magistrate in referring the matter is proper and correct.
Secondly, the learned counsel for the second respondent contended that, though the Karnataka Administrative Tribunal and this court have decided
the matter, but no where in the above said decisions, any finding has been given with regard to the commission of the offence by the petitioners. Only
on the technical ground as to whether, the said discharge order was simplicitor or it casts any stigma on the petitioners or not, considering that aspect,
this court has set aside the discharge order on the finding that a detailed departmental enquiry is required and without following the procedure as
contemplated under the CCA Rules, such discharge order could not have been passed. Therefore, no findings on merits with regard to the allegations
made against the petitioners have been given. Therefore, that has to be unearthed by way of proper and correct investigation by the police and truth
should be found out by the courts of law. Hence, he pleaded for dismissal of the petition.
The main bone of contention of the learned counsel for the petitioners is that the accused virtually exonerated by the order of the High Court in
Writ Petition No.23406/2010 by the Division Bench considering all the allegations made against the petitioners. Therefore, there cannot be any
criminal proceedings against the petitioners. In this background, the learned counsel has extensively relied upon the judgment of the Karnataka
Administrative Tribunal in Application No.1010/2009 and the observations made in the Writ Petition No.23406/2010.
Now, let me examine whether the first petitioner accused has been totally exonerated from the allegations made against her in the said
proceedings. As could be seen from the judgment of the Karnataka Administrative Tribunal, the Karnataka Administrative Tribunal has formulated
three important points for its consideration which are:
(1) Whether the order of discharge dated 28.2.2009 discharging Dr. Malini is an order simplicitor or punitive in nature;
(2) Whether the services of the applicant could be declared as satisfactorily completed in view of her continuance of service for 9 long years;
(3) Whether the applicant is entitled for an opportunity of being heard prior to her discharge from service by an order dated 28.2.2009 and any enquiry
is needed either under KCSRs. Or under Rule 7 of the Probation Rules.
As could be seen from the tenor of the judgment of the Karnataka Administrative Tribunal, the Karnataka Administrative Tribunal has in detail
discussed the confidential report submitted against the first petitioner and other materials available on record in comparison with the discharge order
and thereafter, gave a finding that the order of discharge was simplicitor in nature and it will not cast any stigma on the petitioner No.1. Therefore, it
was held that, no enquiry is needed and further, she is not entitled for any declaration as satisfactorily completed her probation period, holding in such
manner the Karnataka Administrative Tribunal has dismissed the petition holding that the discharge order was simplicitor in nature.
The said order was challenged before this court in Writ Petition No.23406/2010 (S-KAT), the Division Bench of this court has in fact again in
detail considered and formulated a point for consideration in the following manner:
“Whether the impugned order passed by the respondents is an order of discharge simplicitor or stigmatic in nature?
This Court has extensively considered again the allegations made against the petitioner No.1 and confidential report submitted by the Police and
also the Karnataka Administrative Tribunal order juxtapose considering the same with the discharge order and it came to the conclusion that, when the
discharge order is based on serious allegations made against the petitioner No.1, then without conducting the departmental enquiry, the order should
not have been passed. Therefore, though the discharge order on plain reading on the face of it, appears to be an order simplicitor, but it is followed by
stigmatic allegations against the petitioner. Only to that extent, having come to such conclusion, the Writ Petition was allowed and the discharge order
was set aside and thereafter, the order of reinstatement was passed specifically holding that the discharge order was not simplicitor in nature.
Therefore, it is crystal clear from the above said two judgments that none of the courts above have given any finding with regard to the culpability
or otherwise of the petitioner with reference to the allegations made against the petitioners. Therefore, it cannot be said that the courts have
considered the allegations against the petitioner and by means of giving finding exonerated first petitioner from the allegations made against her. What
is evident from the above said judgments are that, without following the procedure and following a disciplinary enquiry, there cannot be any such order
of discharge, only on such technical ground, this court has set aside the discharge order. Therefore, it remains for consideration of this court that
whether the allegations made in the complaint are true or false that can only be in my opinion, unearthed by way of thorough investigation by the
competent Police.
Even otherwise, if a person is exonerated from disciplinary enquiry even after holding a detailed enquiry, even in such circumstances, also criminal
proceedings ipso-facto cannot be stopped or stalled.
It is worth to mention here a decision of the Hon'ble Apex Court in the case of State of NCT of Delhi Vs. Ajay Kumar Tyagi in Criminal Appeal
No.1334/2012 dated 31.8.2012, the Hon'ble Apex Court has discussed with regard to the same important aspect formulating a point for consideration:
“Whether the prosecution against an accused, notwithstanding his exoneration on the identical charge in the departmental proceeding could
continue or not?
 After discussing in detail, relying upon various other decisions, the Hon'ble Apex Court has observed that â€
“In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e., exoneration in departmental proceeding
ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of
proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter
criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only
after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the
report of the Inquiry Officer based on those evidence.
 We are, therefore, of the opinion that the exoneration of the departmental proceeding ipso facto would not result into 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.â€
 Looking to the above said judgment of the Hon'ble Apex Court, it is clear that even after a detailed departmental enquiry, if a person is exonerated,
then also the criminal proceedings will not be ipso facts or automatically terminated.
In this particular case, as I have already observed, the discharge order was only technically set aside by this court holding that the said discharge
order cast stigma on the petitioner No.1 and it is not an order of simplicitor. The said order of discharge was not passed after holding a detailed
enquiry by the concerned department. Therefore, it cannot be said to be an order exonerating the petitioner by the disciplinary authority after following
the due procedure. Therefore, under the above said circumstances, the argument of the learned counsel is not tenable and on that ground, the criminal
investigation cannot be stalled.
The argument of the learned counsel for the petitioners is that the trial Court has not followed the procedure as contemplated in the recent decision
of the Hon'ble Apex Court in the case of Priyanka Srivastava and another Vs. State of UP & Others reported in (2015) 6 SCC 287, cited supra.
First of all, I am afraid to apply the said principle because of the simple reason that when the private complaint was filed and the case was
referred to Police for investigation, the said ruling was not in force. Even otherwise, if the said ruling is applied, in the said ruling, the Hon'ble Apex
Court has said that, before approaching the court, the party has to approach the Police u/s.154(1) of Cr.P.C. and if the Police does not take any
action, he has to approach the competent higher officer u/s.154(3) of Cr.P.C. and even then if he failed to get any remedy, then only he can approach
the court and in that eventuality, the court can refer the matter to Police for investigation u/s.156(3) of Cr.P.C.
On careful perusal of the complaint averments, it is categorically stated by the complainant at paragraph 20 of his complaint that the complainant
has brought to the notice of the department, that aggrieved by the fact that no charges are leveled against any of them either by the department or by
the Lokayuktha for their grave criminal acts, the complainant filed a complaint to the SHO of Ulsoor gate Police Station on 5.6.2009 and that he has
produced the copy of the same and also he has approached the Commissioner of Police, but all those efforts were went in vain. The Police have
neither registered any complaint nor given any case number and they have not set the criminal law into motion. It is also stated that when the matter
being raised in the legislative assembly, the DG & IGP has in fact given a confidential report to the department, on which basis, the discharge order
was passed earlier. Therefore, it is very much clear from the above said averments made in the complaint which are in fact verified by the
complainant is sufficient to comply with the direction of the Hon'ble Apex Court. Therefore, I do not find any strong reasons that this can be a good
ground to quash the proceedings.
The counsel has also contended that there are no allegations which can constitute the offences as alleged in the complaint. But as could be seen
from the over all reading of the complaint averments, which I have already culled out in the preamble of this judgment, it clearly indicates that there is
a serious allegation made against the petitioners and that they have colluded with each other in concocting, creating and forging the SSLC marks card
with reference to the Date of Birth of the first petitioner and using that particular document, for the purpose of getting a job in the Government and
thereby, they have cheated the Government.
At the stage, when a private complaint or an FIR is filed before the Police, the court should not always expect that the complainant has to
meticulously describe everything and produce all the materials at once to the court.
On overall reading of the complaint, if the court is of the opinion that there are materials even broadly to constitute the offences, then the truth or
falsity of the allegations have to be un-earthed during the course of investigation. Therefore, in my opinion, the above said allegations made in the
complaint at this stage are sufficient to hold that they constitute the offences as alleged, ultimately the Police have to examine during the course of
investigation as to the offences that have been committed by the petitioners and for which of the offences, they have to submit the charge sheet or if
no offence is made out during the course of investigation, the Police can file appropriate report to the court. Therefore, it is the exclusive domain of
the Police to investigate such matter and file appropriate report. Normally, the court should not interfere with the jurisdiction of the Police. Hence, this
is also not a ground for quashing of the proceedings.
Last but not least, the learned counsel for the petitioners tried to convince this court that only due to vengeance the complainant has filed the
complaint at the instigation of some of the ill-wishers of the petitioners.
On careful perusal of the Memorandum of Petition, there is no such allegations of that serious nature against the complainant who has filed the
complaint. The complainant claims that it has come to his knowledge from other source about the illegal activities of the petitioners. Therefore, in
order to bring them into books, he has taken such a stand as a responsible citizen of the country. There is no private vengeance alleged and pleaded, in
what manner the respondent No.2 has got any vengeance against these petitioners. Therefore, in the absence of any specific plea and proof with
regard to the existence of any malafides or any vengeance on the part of the complainant, it is not safe to quash such proceedings merely on bald
allegations. Even otherwise the alleged vengeance or malicious act of the complainant if any also requires to be investigated by the Police. If the
Police finds during the course of investigation that the allegations are blatantly false and no material is available, in such an eventuality, as I have
already expressed that the Police can file appropriate report to the court. When the investigation is at the threshold and when the investigation has to
be done for the purpose of un-earthing the truth or falsity of the allegations and there is no malice or unfairness available on record and if the
complaint averments is not so frivolous or vexatious, it cannot be simply quashed for the reason that the discharge order passed by the accused has
already been quashed.
Under the above said circumstances, I do not find any strong reasons to interfere with the order passed by the learned Magistrate in referring the
complaint to the Police for investigation.
As could be seen from the order sheet, the complaint was lodged in the year 2010 and the order impugned was passed on 29.1.2010 and since
then, the investigation is pending. Therefore, it is just and necessary to direct the Investigating Officer to expedite the investigation and complete the
same as expeditiously as possible and submit appropriate report to the court in accordance with law.
With the aforesaid observation, the Petition is dismissed.