LawforAll

advocatemmmohan

My photo
since 1985 practicing as advocate in both civil & criminal laws

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - SHARE THE KNOWLEDGE

Saturday, September 2, 2017

where the charge in both the proceedings is the same and Delinquent Officer is exonerated therefrom in the departmental proceeding which concludes earlier in point of time, that the criminal prosecution on the same set of facts and circumstances ought not to be allowed to continue more particularly in view of the prescription of higher standard of proof in criminal cases. However, exoneration in the departmental proceeding on a technical ground would not be a bar for the criminal prosecution to continue.

1
ITEM NO.34                 COURT NO.12               SECTION II
                S U P R E M E  C O U R T  O F  I N D I A
                        RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).  6241/2012
(Arising out of impugned final judgment and order dated  13/03/2012
in SBCRM No. 332/2009 passed by the High Court Of Rajasthan At
Jodhpur)
MANA RAM                                           Petitioner(s)
                                 VERSUS
SOHAN LAL AND ANR.                                 Respondent(s)
Date : 04/05/2017 This petition was called on for hearing today.
CORAM :
          HON'BLE MR. JUSTICE ARUN MISHRA
          HON'BLE MR. JUSTICE AMITAVA ROY
For Petitioner(s)  Mr. Manoj Prasad, Sr. Adv.
 Mr. Ashutosh Dubey, Adv.
 Mr. Sadashiv Gupta, Adv.
                      Mr. Rohit Singh,Adv.                    
For Respondent(s)  Mr. Rishabh Sancheti, Adv.
                      Mr. T. Mahipal,Adv.
   Mr. Rahul Verma, Adv.
                      Ms. Ruchi Kohli,Adv.
                   
           UPON hearing the counsel the Court made the following
                              O R D E R

Leave granted.
Appeal is allowed in terms of the signed order.
    (NEELAM GULATI)  
    COURT MASTER         (TAPAN KR. CHAKRABORTY)
             COURT MASTER
(Signed order is placed on the file)

1
IN THE SUPREME COURT OF INDIA
  CRIMINAL  APPELLATE JURISDICTION
CRIMINAL APPEAL NO.    893      OF 2017
[ARISING OUT OF S.L.P.(CRL.) NO.6241 OF 2012]
MANA RAM      …APPELLANT
VERSUS
SOHAN LAL AND ANOTHER             …RESPONDENTS
O R D E R
Leave granted
2. The impugnment is of the decision of the High Court contained in
the   judgment   and   order   dated   13.03.2012   rendered   in   S.B.   Criminal
Miscellaneous   Petition   No.332/2009   thereby   discharging   the
respondent   No.1   from   the   charge   of   offence   under   Section   167   India
Penal Code (for short hereinafter referred to as the “IPC”). Thereby, the
order   of   the   learned   Trial   Court   framing   charge   under   the
aforementioned   section   of   law   and   the   dismissal   of   the   revision
petition   questioning   the   same   by   the   jurisdictional   Sessions   Court,
have been set aside.

2
3. We have heard Mr. Manoj Prasad, learned senior counsel for the
appellant,   M/s.   Rishabh   Sancheti   &   Mr.   Rahul   Verma,   learned
counsel for the respondents No.1 & 2 respectively.
4. The essential facts need be outlined at the outset. The appellant
had   filed   a   complaint   in   the   Court   of   the   Chief   Judicial   Magistrate,
Sriganganagar, Rajasthan against the respondent No.1 and one Shera
Ram   under   Sections   166,   167,   420,   466,   120B   IPC   to   the   effect   that
following   an   agreement   for   sale   of   an   agricultural   land   admeasuring
12 bigha, 5 biswa of Murrabba No.37, Kila No.13 to 25 with the owner
Shera   Ram   (respondent   No.2   therein)   and   on   payment   of
Rs.2,52,000/-   had   taken   over   possession   thereof.   According   to   the
appellant/complainant   since   thereafter,   he   had   been   cultivating   the
land and in continuation of the process of sale, he on 21.07.1990 paid
a   further   amount   of   Rs.10,000/-   to   Shera   Ram   against   which   the
latter executed a receipt. Thereafter, the appellant instituted a suit for
specific   performance   of   the   contract   in   the   Court   of   the   District   and
Sessions Judge, Sriganganagar wherein the Trial Court, as prayed for,
also passed an order of injunction directing maintenance of status quo
of   the   land   involved.   The   appellant/complainant   has   stated   that   the
factum of the order of injunction granted by the Trial Court was duly
communicated   to   the   respondent   No.1   who   at   the   relevant   time   was

3
the   Patwari   of   the   region   concerned.   Reiterating   that   the   appellant
thus was in possession of the land since 15.04.1987 and his name on
the   basis   of   such   possession   and   cultivation   thereof   was   entered   in
Canal   Girdavari   he   asserted   that   irrigation   slips   were   also   issued   by
the   concerned   Patwari   from   time   to   time.   He   also   annexed   to   the
complaint,   the   said   documents.   The   appellant/complainant   averred
that   the   respondent   No.1   (in   the   complaint)   was   in   the   capacity   of
Patwari, fully aware of his possession and cultivation of the land since
15.04.1987 so much so that he issued receipts in endorsement of this
fact   after   collecting   the   land   revenue.   This   was   as   late   as   on
12.08.2005.
5. The  appellant/complainant  alleged  that  in  spite  of  the  above,  as
Shera Ram, his vendor nursed a malicious intention of selling the land
again   for   pecuniary   gains,   be   colluded   with   the   respondent   No.1   and
in furtherance of the conspiracy between the two, got prepared a false
report  by   the respondent  No.1  that  the land  was  in possession  of  the
Shera Ram. According to the appellant/complainant this was effected
by making false entries in the revenue records.

6. Having   come   to   learn   of   this   fraud,   the   appellant/complainant
lodged a complaint with the District Collector, Sriganganagar following

4
which   the   S.D.M.   (Revenue)   did   visit   the   spot   along   with   the   Patwari
on 28.10.2005  and  submitted a  report affirming   that  the  land was  in
his   (appellant/complainant)   cultivating   possession.   A   copy   of   the
report was also annexed to the complaint. The appellant/complainant
thus   alleged   that   the   respondent   No.1   in   making   the   false   entry   and
issuing   a   report   on   the   basis   thereof   grossly   misused   his   official
position as a public servant and thus sought for the prosecution of the
respondents under the above-mentioned sections of law.
7. As  the  records  reveal,  following  an  investigation by  the  police  as
ordered   by   the   Court,   charge-sheet   was   submitted   against   the
respondent   No.1   and   the   Trial   Court   took   cognizance   of   the   offences
alleged   and   fixed   the   case   for   framing   of   charge.   At   that   stage   the
respondent   No.1   filed   an   application   under   Section   197   Cr.P.C.,
questioning his prosecution sans necessary sanction thereunder.
8. The   learned   Trial   Court   after   hearing   the   parties   and   on   a
thorough   consideration   of   the   allegations   made   in   the   complaint   and
the   statements   of   the   appellant/complainant   and   the   witnesses
rejected the objection and framed charge against the respondent No.1
under   Section   167   IPC   by   order   dated   10.12.2008.   Significantly,   the
learned   Trial   Court   while   rejecting   the   respondent   No.1's   objection
based on 197 Cr.P.C. did take note of the documents furnished by the

5
appellant/complainant   in   support   of   the   accusations   and   concluded
that   having   regard   to   the   allegations   made,   the   respondent   No.1   was
not entitled to the protection under Section 197 Cr.P.C.
9. The charge as framed by the Trial Court is extracted hereunder:
“ That on or around dated 22.09.2005 while working at the
post   of   Patwari   Halqa   11,   L.N.P.   as   public   service,   you
prepared a false report about possession and cultivation of
accused Bheraram on the land comprising Murabba No.37,
Kile No.13 to 25 area 12 Bigha 5 Biswa as a public service
while   you   had   got   the   knowledge   that   complainant
Manaram   has   been   enjoying   possession   on   the   said   land.
You indulged in such act with the intentions or knowingly
well   that   it   would   cause   loss   to   complainant   Manaram.
Thus,   your   act   amounts   to   offence   punishable   under
section 167 Cr.P.C. and is under my cognizance .”
10. The   revision   petition   filed   by   the   respondent   No.1   against   the
above   decision   of   the   Trial   Court   was   dismissed   by   the   Sessions
Judge,   Sriganganagar   by   his   order   dated   10.02.2009.   The   challenge
before the High Court was laid thereafter.
11. Parallelly   however,   acting   on   the   complaint   lodged   with   the
District   Collector,   Land   Revenue,   Sriganganagar   a   departmental
enquiry   was   conducted   against   the   respondent   No.1   on   the   following
charge:
“ That   while   working   at   Patwari   Division   11,   L.N.P.   sale
certificate   of   land   comprising   Kila   No.13   to   25   total   area
12.05   Bigha   of   Murabba   no.37   of   Chuk   11   L.N.P.   on
22.09.05.  Instead of submitting report of Point No.1, 3 & 7
on   the   basis   of   the   factuality,   one   of   the   parties   was
unlawfully benefitted and from which unnecessary dispute

6
arose.   Thus,   you   kept   the   higher   officers   misconceived   by
acting   contrary   to   your   responsibility   which   was   contrary
to the responsibility entrusted to you .”
12. The   record   attest   that   such   enquiry   under   Rule   16(4)   of   the
Rajasthan   Civil   Services   (Classification,   Control   &   Appeals)   Rules,
1958 was attended to by the respondent No.1 and the Enquiry Officer
after   hearing   the   parties   and   on   a   detailed   consideration   of   the
evidence   adduced,   held   that   the   charge   levelled   against   him   stood
proved. Qua the testimony of the Tahsildar, Ganganagar who deposed
that   as   and   when   proposals   are   sought   from   Patwari   for   issuing   a
Sanad, the relevant Rules required that statement of the neighbours at
the   site   be   recorded   and   a   true   report   be   submitted,   the   Enquiry
Officer observed that no such record had been maintained with regard
to   the   report   of   possession   and   cultivation   and   that   the   Delinquent
Officer   ought   to   have   inspected   the   site   and   thereafter   should   have
submitted   the   report   instead   of   doing   so   only   on   the   basis   of   the
jamabandi. The Enquiry Officer was thus unmistakably clear that the
respondent   No.1   had   issued   the   report   in   question   without   either
visiting   the   site   or   making   any   enquiry   with   regard   to   the   actual
possession of the land and the cultivation thereon.
13. The   Disciplinary   Authority   i.e.   the   District   Collector   (LA),
Sriganganagar   by   its   order   dated   21.04.2009,   on   a   consideration   of

7
this   report   and   other   materials   available   on   record   accepted   the
finding in support of the charge and awarded the penalty of stoppage
of   two   annual   increments   of   the   respondent   No.1   with   cumulative
effect.
14. In   the   appeal   filed   by   the   Delinquent   Officer,   the   Divisional
Commissioner,   Bikarner   Division,   Bikaner,   by   his   order   dated
19.05.2010  however  exonerated  him  of   the  charge.   A  plain  perusal  of
this   order   would   reveal   that   the   Appellate   Authority   was   of   the   view
that   the   report   having   been   issued   by   the   respondent   No.1   on   the
basis   of   the   available   records,   the   charge   had   remained   unproved.
Noticeably   in   arriving   at   this   conclusion,   the   Appellate   Authority
disregarded   the   requirement   of   the   Rules,   as   noted   by   the   Enquiry
Officer of the visit to the site and an enquiry at the spot, by recording
the statements of the neighbours as the indispensable essentials to be
complied with before issuance of a report as was submitted.
15. In the above backdrop Mr. Manoj Prasad, learned senior counsel
for   the   appellant   has   emphatically   urged   that   as   the   charge   framed
against   the   respondent   No.1   on   the   basis   of   the   allegations   in   the
complaint   and   the   evidence   in   support   thereof   is   distinctly   different
from the one enquired into in the departmental proceedings, the High
Court   was   in   error   in   contemplating   otherwise   and   in   quashing   the

8
criminal   prosecution.   The   charges   in   the   two   proceedings   being
patently   different   and   the   scope   of   scrutiny   relatable   thereto,
apparently   distinguishable,   the   impugned   order   if   allowed   to   stand
would be a travesty of justice, he urged.
16. Per   contra,   Mr.   Rishabh   Sancheti   &   Mr.   Rahul   Verma,   learned
counsel for the respondents has insistently argued that a bare perusal
of   the   two   charges   would   demonstrate   the   absolute   identicalness
thereof   and   thus   as   rightly   held   by   the   High   Court,   continuance       of
the   criminal   prosecution   against   the   respondent   No.1   would   be   an
abuse of the process of Court.
17. We   have   devoted   our   focused   consideration   to   the   rival
contentions.   In   our   estimate,   a   bare   perusal   of   the   charge   in   the
departmental enquiry does not permit a deduction that it is absolutely
identical to the one framed by the Trial Court in the case registered on
the complaint filed by the appellant. Whereas the imputation enquired
into   in   the   departmental   enquiry   was   limited   to   the   submission   of
incorrect   report   on   point   1,   3   and   7   thereby   acting   contrary   to   the
responsibility   entrusted   to   the   respondent   No.1,   the   charge   for   the
criminal   trial   encompasses   the   additional   dimension   of   his   sustained
knowledge   of   the   appellant’s   possession   of   the   land   involved   while
submitting  a  false  report to the  contrary  with  the  dishonest  intention

9
of  causing loss to him. Thus allegations of guilty mind and dishonest
intention   are   the   additional   facets   engrafted   in   the   charge   framed   by
the  Trial  Court  for   the  prosecution   of   the  respondent   No.1  which   can
by   no   means   be   even   inferred   to   be   same   or   similar   to   the   allegation
enquired   into   in   the   departmental   proceeding.   Most   significantly   as
well,   the   finding   of   the   Enquiry   Officer   and   affirmed   by   the
Disciplinary   Authority   that   as   per   the   prevalent   Rules,   the   report   in
question ought to have been submitted following a visit to the site and
an enquiry thereat by recording the statements of the neighbours, has
not   been   reversed   by   the   Appellate   Authority   in   the   departmental
appeal.   There   is   neither   any   finding   to   the   effect   that   the   respondent
No.1 did visit the site and conduct the procedure as prescribed by the
Rules   prior   to   the   submission   of   the   report.   In   this  premise,   the   very
foundation   of   the   challenge   to   the   order   of   framing   of   charge   by   the
Trial Court against the respondent No.1 and the affirmation thereof by
the Revisional Court is rendered non est.
18. We   do   not   wish  to   heap   the   narration   with   the   pronouncements
of   this   Court   qua   the   permissibility   of   simultaneous   departmental
proceedings   and   criminal   prosecution   on   the   same   charge   or
accusation.   Suffice   it   to   refer   to   the   decision   rendered   in   Radhey
Shyam   Kejriwal   Vs.   State   of   West   Bengal   and   another   –   (2011)   3
SCC 581 wherein this Court, following a survey of the decisions on the

10
issue  has  underlined  that   the  two  are  independent  of   each  other   and
can   be   launched   and   proceeded   with   simultaneously.   It   is   only   when
and   in   a   case   where   the   charge   in   both   the   proceedings   is   the   same
and   Delinquent   Officer   is   exonerated   therefrom   in   the   departmental
proceeding which concludes earlier in point of  time, that the criminal
prosecution   on   the   same  set  of   facts  and   circumstances  ought  not   to
be allowed to continue more particularly in view of the prescription of
higher   standard   of   proof   in   criminal   cases.   However,   exoneration   in
the departmental proceeding on a technical ground would not be a bar
for the criminal prosecution to continue.
19. In   the   attendant   facts   and   circumstances,   having   regard   to   the
dissimilarity  in the charges as is  apparent on the face  of  the  records,
we   are   of   the   unhesitant   opinion   that   the   High   Court   had   erred   in
holding   otherwise   and   in   essence,   quashing   the   criminal   prosecution
against the respondent No.1. The impugned judgment and order of the
High  Court  is thus  set  aside  and  the  matter   is  remanded  to  the  Trial
Court  to be proceeded with in  accordance with law.   We make  it clear
that   the   observations   made   hereinabove   are   strictly   limited   to   the
adjudication on the issue raised before this Court and do not have any
bearing on the merit of the charge and the learned  Trial Court  would

11
decide   the   case   as   per   law   without   being   in   any   way   influenced
thereby.  
…........................................J.
[ARUN MISHRA]
…........................................J.
[AMITAVA ROY]
NEW DELHI;
MAY 04, 2017.