Fazal Ahmed vs State of Jammu & Kashmir and Another

Y.P. Nargotra, J.—The petitioner has filed this petition u/s 561-A Cr.P.C. seeking quashing of FIR No. 23/2002 registered on 22.5.2002

against him in Police Station Crimes & Railways Jammu for commission of offences under Sections 420, 467, RPC, read with Section 5(2) of

Prevention of Corruption Act 2006. The petitioner was serving as a Patwari in the Revenue Department of the Government. The Government

initiated an enquiry in respect of mutation No. 1472 of village Deoli, Tehsil and district Jammu. The Inquiry Officer came to the conclusion that

there was no co-relation between parti-i-patwar and part-i-sarkar of mutation No. 1472. The petitioner was found to be involved in fabricating the

basic mutation alongwith others who have either died or retired.

The Government vide Govt. order No. Rev(S)85 of 2002 dated 22.2.2004 ordered:-

1- I.G. Crime and Railways shall investigate fake and fraudulent mutation No. 1472 of village Doeli;

2- Shri Fazal Ahmad Patwari (presently on deputation to Forest Department) is placed under suspension with immediate effect. He shall be

attached with Deputy Commissioner Jammu;

3- Revenue Attorney with the Divisional Commissioner Jammu shall immediately file a revision petition seeking cancellation of fake and fabricated

mutation which have been attested on the basis of fake mutation No. 1472;

4- The Dy. Commissioner Jammu and Settlement Officer Jammu shall ensure that no further mutation and sale in respect of land involved in the

survey No. quoted above takes place.

Pursuant to the aforesaid directions FIR No. 23/2002 has come to be registered against the petitioner-accused and is at the investigational

stage. In the meanwhile accused petitioner has also been served with a charge sheet in a departmental enquiry vider order No. Rev(S)44/2002

dated 26.7.2002. Statement of articles of charges framed against the petitioner makes the following allegations:-

1- That Sh. Fazal Ahmed Patwari while functioning as Patwari during the year 1989 illegally entered mutation No. 1472 in the relevant revenue

record of village Deoli, District Jammu;

2- That during the aforesaid period and while functioning in the aforesaid position the said Fazal Ahmed illegally entered and reported on mutation

No. 1472 against the facts and position obtaining on the ground;

3- That during the aforesaid period and while functioning in the aforesaid office the said Shri Fazal Ahmed Patwari has acted without applying mind

while reporting on the mutations of village Deoli.

The accused has submitted his reply to the charge sheet The Government vide Govt. order No. Rev(S)173/2002 dated 3.9.2002 has accorded

sanction and thereby appointed Director Land Record as Inquiry Officer in the matter. Tehsildar Settlement Jammu has been appointed as

Presenting Officer and pending enquiry the petitioner has been reinstated in service.

The case of the petitioner is that departmental enquiry and criminal investigation on the same allegations cannot go together under law and

continuation of two different proceedings with regard to the same allegations is going to cause difficulty in the matter of investigation as the Inquiry

Officer and the Investigating Officer has to enquire into the same area on the basis of the same record. The petitioner therefore seeks quashment of

the criminal proceedings/ the FIR registered against him.

The respondents have not filed any objections. However, with the consent of learned counsel for the parties the petition has been taken up for

final disposal. I have heard the learned counsel for the parties.

Mr. Sethi, learned counsel for the petitioner has vehemently argued that under law departmental enquiry and criminal investigation cannot

proceed together and therefore the FIR deserves to be quashed. In support of his contention he has relied upon State of Rajasthan Vs. B.K.

Meena and others, , P.S. Rajya Vs. State of Bihar, and AIR 1998 SC 221. Mr. Salathia learned AAG, has argued that both the proceedings can

go together under law and in support of his submission he relies upon AIR 1992 SC 649.

So the vital question arising for determination in this case is whether departmental enquiry and criminal proceedings can be initiated together on

identical allegations. In State of Rajasthan Vs. B.K. Meena and others, , their lordships have observed as follows:-

There is no legal bar for both proceedings disciplinary and criminal to go on simultaneously, however, in certain situations, it may not be 'desirable'

or 'appropriate', to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary

proceedings is a matter to be determined having regard to the facts and circumstances of a given case and no hard and fast rules can be enunciated

in that behalf. The only valid ground for staying the disciplinary proceedings is ""that the defence of the employee in the criminal case may not be

prejudiced"". This may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but

that the case must involve complicated questions of law and fact. Moreover, 'advisability','desirability' or 'propriety' as the case may be has to be

determined in each case taking into consideration all the facts and circumstances of the case. One of the contending considerations is that the

disciplinary enquiry cannot be-and should not be-delayed unduly. So far as criminal cases are concerned, it is well known that they drag on

endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly

ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from courts. If a criminal case is unduly delayed that

may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage.

The interests of administration and good government demand that these proceedings are concluded expeditiously.

From the aforesaid observations of their lordships it is obvious that departmental proceedings and criminal proceedings can proceed together,

however, it is only in certain situations that departmental enquiry may be stayed. The approach and the objective in the criminal proceedings and

disciplinary enquiry is altogether distinct and different. In the disciplinary proceedings the question to be considered by the Inquiry Officer is

whether the delinquent official is guilty of such conduct which would merit awarding of a punishment under service rules by which he is governed

whereas in the criminal proceedings the question involved is whether the offences registered against the accused are established and if established

what sentence should be imposed upon him. The standard of proof, mode of enquiry and the rules governing the enquiry and trial are entirely

distinct and different. The scope of the two proceedings being different criminal proceedings cannot be stopped by the High Court by invoking its

inherent jurisdiction vested in it u/s 561-A Cr.PC because holding of criminal proceedings in such a situation cannot be said to be an abuse of

process of law simply on the ground that departmental enquiry is also being initiated simultaneously with the criminal proceedings against a person.

None of the authorities relied upon by learned counsel for the petitioner support the contention that criminal investigation cannot be launched

against a person against whom departmental enquiry has been initiated. In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, ,

order of dismissal already passed before the decision of the criminal case was held to be liable to be set aside when the employee stood already

acquitted in the criminal case. This authority is not applicable because here only FIR has been registered and even prosecution of the Case is yet to

be launched. In P.S. Rajya Vs. State of Bihar, , the appellant was appointed as Inspector in the Income Tax Service in the year 1961. His wife

was also a teacher. She was allotted a plot in the year 1980 by the Steel Authority of India. As per terms and conditions imposed by SAIL shops

in the ground floor and residence at the first floor were constructed by the appellant with his earnings as well as the earnings of his wife. The

construction was strictly under the supervision and on the drawings supplied freely by SAIL township authority. Subsequently the building was

valued by SAIL township engineer at Rs. 4.75 lakhs. The appellant in the meanwhile got promotion and was functioning as Income Tax Officer.

CBI filed a charge sheet against the appellant on 31.7.1995 and the main basis for this charge sheet was the valuation of the appellant's house

which the CBI fixed at Rs. 7,69,300/- as against earlier valuation of Rs. 4.67 lakhs. The Engineer who prepared the valuation report for the

income tax purposes also prepared the report for the CBI and there was no indication as to why there was no difference in the value of the

property. In the departmental enquiry conducted by the Central Vigilance Commissioner the commission submitted reoport exonerating the

appellant of all the charges. The department forwarded the report of the Central Vigilance Commission for opinion of the Central Union Public

Service Commission. By a long report the Union Public Service Commission concurred with the conclusion of exonerating the appellant of all the

charges. Accepting the report of the Union Public Service Commission, the President passed the final order in favour of the appellant. The

appellant moved the High Court u/s 482 Cr,.PC for quashing the cognizance of charge as mentioned above. The High Court dismissed the petition

holding that the issues raised before it have to be gone into in the final proceedings and those cannot be raised at the preliminary stage. On appeal

their lordships of the Supreme Court held:-

The standard of proof required to establish the guilt in a criminal case is fat 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 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.

Their lordships further held that the High Court was not right in taking the view that the issues raised had to be gone into the criminal

proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would

not conclude the criminal case against the appellant.

The facts in the above case are quire different than the facts of the present case. In the present case even departmental enquiry has not been

completed against the accused. The accused petitioner thus cannot say that on report of the Inquiry Officer, as was the case in P.S. Rajay's case

(supra) he stands exonerated. In petitioner's case FIR is yet to be investigated and criminal proceedings are yet to be launched. Therefore, above

said authority is not applicable at all.

The other authority i.e. AIR 1998 SC 221 relied upon by counsel for the petitioner is not on the point in issue being a case pertaining to the

provisions of Urban Land Ceiling Regulation Act. Therefore the submission of Mr. Sethi that criminal proceedings cannot proceed parallel to the

departmental proceedings is without any merit.

In R.S. Raghunath Vs. State of Karnataka and another, their lordships of the Supreme Court after considering almost all earlier decisions have

given the guidelines relating to exercise of extra-ordinary jurisdiction under Article 226 of the constitution or inherent powers u/s 482 Cr.PC for

quashing the FIR or the complaint, by observing as follows:-

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by

this court in a series of decision relating to the exercise of the extra-ordinary power under Article 226 or the I inherent powers u/s 482 of the Code

which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be

exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down

any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of

cases wherein such power should be exercised.

(1) Where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do

not prima facie constitute any offence or make out a case against the accused;

(2) Where the allegations in the first information report and the materials if any accompanying the FIR co not disclose cognizable offence, justifying

an investigation by the police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the

Code;

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused;

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code;

(5) Where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can

ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned,

providing efficacious redress for the grievance of the aggrieved party;

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive

for wreaking vengeance on the accused and with a view to spit him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should beexercised very sparingly and with

circumspection and that too in the rarest of rate cases; hat the court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent power do not confer an

arbitrary jurisdiction on the court to act according to its whim or caprice.

Applying the guidelines laiddown by their lordships to the present case, in my considered opinion the case in hand does not call for invoking of

jurisdiction u/s 561-A Cr.P.C. and writ petition of the petitioner, as such, is dismissed. The case diaries are returned to Mr. Salathia. The

investigating agency shall proceed with the investigation of the case.