Gurnam Singh vs State of Haryana

R.L. Anand, J.

S/Shri Gurnam Singh and five others mentioned in the head note of the present petition have filed the present petition under Section 482 Cr.P.C. for the quashment of the FIR No. 327 dated 26.8.1993 under Sections 8, 9, 13 and 14 of the Prevention of Corruption Act, police station City Jind and quashing of the report/challan dated 17.2.1995 under Section 173 Cr.P.C. mainly on the ground that the allegations of the FIR are nothing but an abuse of the process of law and that on the departmental side the allegations of the complainant as well as other persons had already been inquired into and these allegations have been found to be false and still the submission of the chargesheet under Section 173 Cr.P.C. was an act towards the abuse of the process of law.

One Shri Sat Narain resident of Jind vide Annexure P.2 submitted an application before the Addl. Deputy Commissioner Jind in which he complained that he made an application for loan of Rs. 25,000/ for hosiery which was duly sanctioned by the District Industries Centre. In spite of the fact that the loan was sanctioned to him he was not disbursed with the loan and he had been visiting the office several times in order to get the loan. One day when he was taking tea outside the Primary Land Development Bank, Jind, he discussed the matter with the teawala namely Shri Kishan, who told the complainant that there was one person by the name of Shri Vijay Kumar, who is in a position to get the loan disbursed as the said Vijay Kumar is the agent of the relevant persons. Accordingly, the complainant met Shri Vijay Kumar, who told the complainant that he would charge Rs. 5,000/ for the work. Ultimately the bargain was struck at Rs. 4,000/. It may be mentioned here that Shri Sat Narain complainant did not part any money either to Shri Kishan or to Shri Vijay Kumar. Shri Sat Narain further stated in his complaint Annexure P.2 that he still waited for two months and had been frequently visiting the bank but to no effect. Finally he met the Additional Deputy Commissioner on 13.8.1993 and the Additional Deputy Commissioner assured him to approach him after 15.8.1993. The complainant thus made an application Annexure P.2 before the Additional Deputy Commissioner, Jind on 21.8.1993.

The allegations of the complaint were inquired into and finally the FIR Annexure R.1 was registered vide D.D.R. No. 28 dated 26.8.1993 in police station City Jind under Sections 8, 9, 13 and 14 of the Prevention of Corruption Act, 1988. It may also be stated here that the opinion of the prosecution agency was also taken with regard to the forwarding letter which was sent by the Additional Deputy Commissioner, Jind for the registration of the case. The Deputy District Attorney, Jind vide his opinion dated 24.8.1993 gave the following opinion :

"Keeping in view the fact that there is no direct evidence regarding demand, acceptance or recovery of the illegal gratification from any of the aforesaid persons, chances of success of the case in the Court are very bleak. This case, however, needs thorough investigation by a police officer not below the rank of the Deputy Superintendent of Police, as prescribed under Section 17 of the Prevention of Corruption Act.

Sd/

Deputy Distt. Attorney Jind.

24.8.1993''''

After the registration of the case the department also initiated a departmental inquiry which was entrusted to District Manager, HPLDS, Jind, who wrote a letter dated 3.2.1995 to the Managing Director. The allegations of the complaint were inquired into. In para No. 2 of the application it was stated by the Inquiry Officer as follows :

"The complainant Shri Satya Narain states that he applied a loan under N.F.S. for establishing a hosiery unit through D.I.C., Jind. My application was sent to PADB, Jind. He visited 34 times in the bank but could not got processed his application. He met Sh. Vijay Singh middleman in the Bank, who told him to give him Rs. 5,000/ to get his loan released. He gave him Rs. 2,000/ but in spite of many visits his work could not be done. So he met and made complaint to the Addl. D.C., Jind. He stated that he did not meet any LVO Manager of the bank and has no complaint against the said employee. He also got back Rs. 2,000/ from Sh. Vijay Singh.''''

The above para would again show that so far as the parting of Rs. 2,000/ is concerned it was missing from the allegations subjectmatter of Annexure P.1.

The letter dated 3.2.1995 further shows that this officer also inquired into the allegations of other complainants such as Balwan Singh and Ramphal. After the conclusion of the inquiry the Inquiry Officer came to the conclusion that it was a difficult job for him to reach on a clear conclusion that the charge of illegal gratification was not proved against Shri Parkash Chander, LVO as the benefit of doubt goes in favour of alleged person. Suffice to say that in this departmental inquiry which was conducted at the level of District Manager, Jind, who examined the main complainant as well as other persons allegedly aggrieved by the acts of the petitioners has gone in favour of the petitioners.

In the reply which has been submitted by the State it has been stated that during investigation of this case there were sufficient evidence against all the accused and as such the report under Section 173 Cr.P.C. was correctly and rightly prepared and the challan was sent to the Court which is now fixed in the Court of Special Judge, Jind. The reply is, however, barren with regard to the prima facie circumstances and evidence which have been collected by the investigating agency against the petitioners. The attempt is being made on behalf of the State to defeat the petition mainly on the ground that since the challan has already been presented before the Special Judge and that the allegations of the prosecution are under the gauge of the Court of competent jurisdiction, therefore, the petition is liable to be dismissed and in this regard reliance is being placed by the State on judgment of the Hon''ble Supreme Court State of Bihar v. P.P. Sharma, AIR 1991 SC 1260.

I have heard Shri R.S. Kundu, Advocate on behalf of the petitioners and Shri J.S. Ahlawat, Advocate on behalf of Haryana State and with their assistance have gone through the record of this case.

In this case the entire proceedings started with the allegations of the complainant Shri Sat Narain and further two more complainants namely Shri Balwan Singh and Ramphal were added. The grouse of all the complainants is similar to the effect that loans were sanctioned but they were not disbursed with the loans and they contacted one Vijay Kumar who is stated to be a man of confidence of the petitioners Nos. 1 to 6. On the departmental side also the allegations of the main complainant and the two other complainants were inquired into and nothing concrete was found against the petitioners Nos. 1 to 6.

Now the point for determination is whether in these circumstances when the employees have already been exonerated on the departmental side and no changeable evidence has been collected in departmental inquiry and still they are being prosecuted under the charges of corruption, whether in such state criminal proceedings should be allowed to continue or not. It has been brought to the notice of this Court by the learned counsel for the respondent that the findings of the Inquiry Officer have been set aside are not approved by the higher authorities. In P.S. Rajya v. State of Bihar, 1996(3) Recent C.R. 261, the Hon''ble Supreme Court was pleased to lay down that when the officers were proceeded against departmentally and the charges against them in departmental proceedings and the criminal proceedings were one and the same and that the office had exonerated the officer in the departmental proceedings on the basis of Central Vigilance Commission which report was accepted by Union Public Service Commission and thus nothing remained there to proceed against the officer in criminal proceedings. It was further laid down by the Supreme Court that standard of proof required to establish the guilt in criminal case is far higher than the standard of proof required to establish guilt in departmental proceedings. In the present case also when the petitioners Nos. 1 to 6 had been exonerated at the departmental level and no lighter (higher ?) proof is available against them, it cannot be accepted that the prosecution will be able to get conviction on the judicial side where the prosecution is supposed to prove the charges beyond reasonable doubt. The statements of the complainant and two other complainants who joined later on were discussed by the District Manager, Jind and he had come to the conclusion that the departmental charges against the petitioner Nos. 1 to 6 are not established. Meeting with the legal submission which was raised from the side of the State that since the challan has already been presented against the petitioners, in these circumstances the proceedings under Section 482 Cr.P.C. cannot be allowed. The submission of the learned counsel for the respondent cannot be made an universal rule. Of course, with the submission of the chargesheet under Section 173 Cr.P.C. the allegations came under the gauge of the Court. The Hon''ble Supreme Court in these circumstances states that ordinarily the High Court should not invoke the provisions under Section 482 Cr.P.C. However, there is exception to the rule if the attempt on the part of a person is nothing but an abuse of the process of law. Then the ratio of the Hon''ble Supreme Court reported in State of Haryana and others v. Bhajan Lal, 1991(1) RCR (Crl.) 393 : 1992 Supp.(1) SCC 335. is applicable. The Hon''ble Supreme Court approved the following seven categories of cases wherein such powers could be exercised :

"(1) Where the allegations made 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 allegation in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 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 noncognizable offence, no investigation is permitted by a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or 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 concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, 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 spite him due to private and personal grudge.''''

The present case can be brought under categories 3 and 5 without any difficulty. In this view of the matter I am inclined to invoke the provisions of Section 482 Cr.P.C. in the present case fully realising that the petitioners Nos. 1 to 6 are being prosecuted without any basis.

So far as Vijay Kumar is concerned, he is not a public servant.

Resultantly, the present petition is hereby allowed and FIR No. 327 dated 26.8.1993, police station City Jind under Sections 8, 9, 13 and 14 of the Prevention of Corruption Act is hereby quashed with all the consequential proceedings including the chargesheet dated 17.2.1995. Directions are now given to the Special Judge not to prosecute the petitioners. With the quashment of the proceedings against petitioners Nos. 1 to 6, the proceedings even cannot continue against Shri Vijay Kumar, who is admittedly not a public servant.