TMI Blog2022 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of Section 7 of P.C. Act - Section 20 of P.C. Act creates legal presumption where public servant accepts any undue advantage. Upon fulfilling certain requirements by the prosecution, a legal presumption is created against the government servant - The heading of section itself suggests that a presumption is created by law makers against public servants accepting gratification other than legal remuneration. Upon considering the provisions of P.C. Act, it cannot be held that chances of conviction of petitioners in the criminal trial involving the same facts are totally bleak. We are unable to hold that the nature of findings mentioned in the order of disciplinary authority forms any legal impediment for proceeding with the criminal case. It cannot be held that exoneration of petitioners in the departmental inquiry draws such an iron curtain on the case of prosecution because of which prosecution cannot be permitted to proceed with the criminal case. Hence, no interference is warranted on the FIRs and on the criminal cases by this Court. It is deemed proper to clarify that discussion made was aimed to decide the question whether finding in the departmental inquiry can fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the abovementioned verification. During this conversation, petitioner Ishak Khan was also standing there. The complainant desired that petitioners and co-accused persons should be caught red handed. 3. Acting upon the said written complaint dated 31/5/2016, a trap was conducted and Inspector S.P.S Raghav has handed over a recorder with memory card to the complainant for recording the demand of bribe by the accused persons. The complainant along with constable Kanchan Singh (shadow witness) went to the office where petitioners were working by keeping the voice recorder in ON mode secretly. The complainant met Shri R.K. Jain, Superintendent (co-accused) in the said office. During the conversation, complainant requested said Shri Jain to reduce the amount of bribe and complainant offered ₹ 15,000/- for completion of said work. As per prosecution story, Shri. Jain agreed. After said conversation was recorded, voice recorder and memory card were submitted to Lokayukta Office, Indore. The shadow witness constable Kanchan Singh was standing in gallery while conversation was being recorded by the complainant. The complainant brought the recorded conversation along with ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be allowed to continue on the underlined principle that criminal case needs higher standard of proof than the departmental enquiry. In such circumstances, the trial of person concerned shall be an abuse of process of court. 7. Shri Arpit Singh, learned counsel for petitioner placed heavy reliance on certain paragraphs of the enquiry report which were considered by disciplinary authority in the order dated 23/9/2020 (Annexure P/2). It is urged that the complainant did not support the prosecution story before the enquiry officer. Other witness Jagdish Chandra Marmat also did not support the prosecution story. The amount was not recovered from personal possession of this petitioner. 8. Similarly, Shri Shahdab Khan for the other petitioner submits that as per prosecution story, the bribe money was found on a table which alleged to be of the charged officer. However, disciplinary authority categorically recorded that as per the practice prevailing in the department, the Sepoys, Havildars and Head Havildars are not assigned independent tables. The colouring of hands of charged officer alone cannot be a reason for establishing the charge. It is urged by Shri Shadab Khan, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Governor, State of Orissa through Chief Engineer). The contention of Shri Raghuvanshi is that the judgment of P.S. Rajya (supra) did not have any precedential value and judgment of Radheshyam Kejrival (supra) does not help the petitioners. During the course of arguments, Shri Raghuvanshi, learned counsel for petitioner strenuously contended that prosecution has serious doubts on the date of report allegedly sent/dispatched a day before the date of trap. By leading evidence, prosecution will be able to establish that the defence is based on fabricated/doctored documents. The prosecution cannot be deprived from prosecuting the petitioners by leading cogent evidence. 12. Parties confined their arguments to the extent indicated above. 13. We have heard the parties at length and perused the record. 14. Indisputably, in the judgment of Ashoo Sundarnath Tiwari (supra), the Apex Court placed reliance on its previous judgments delivered in the case of P.S. Rajya (supra) and Radheshyam Kejrival (supra). It is noteworthy that judgment of P.S. Rajya (supra) was cited before the Supreme Court along with another judgment on the same subject matter i.e. Kisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed . 20. It is well settled that the decision is an authority for what it actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra), this Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground . (emphasis supplied) 16. In para 21 of the judgment of Ajay Kumar Tyagi (supra), it was poignantly held that the decision in P.S. Rajya (supra) was referred on peculiar facts obtaining therein. Reliance was placed on the judgment of Supreme Court in State vs. M. Krishna Mohan (2007) 14 SCC 667 . The relevant portion reproduced of judgment of Ajay Kumar Tyagi (supra) referring about P.S. Rajya (supra) reads as under:- 33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial . ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered its another previous judgment in the case of Radheshyam Kejrival (supra). In this case, there was cleavage of opinion amongst the judges. The majority view was taken by Prasad and Bedi, J.J. whereas minority view was taken by P. Sathasivan, J. , who dissented with majority view substantially. We will be failing in our duty if we wouldn't take into account the argument of Shri Raghuvanshi that numerical strength of judges in a judgment which took a particular view is a relevant consideration. This contention is advanced to bolster the point that the judgment of Radheshyam Kejriwal (supra) must be treated as a judgment of two judges (in view of dissent by one judge) as against the judgment of Ajay Kumar Tyagi (supra) delivered by a 03 judge bench taking unanimous view. It is seen that this interesting conundrum came up for consideration before Supreme Court in (2018) 11 SCC 305 (Shanti Fragrances vs. Union of India Ors.) . The Apex Court has already referred this question for determination to a larger bench. Since matter is pending consideration before larger bench, we refrain ourselves to deal with this aspect in this matter. 20. We deem it pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), although the appellant therein was initially charged for committing offence under the P.C. Act, the Special Judge by order dated 27.06.2012 found that no sanction was taken under the P.C. Act against the appellant therein and, therefore, he was discharged from the offences under the P.C. Act. The Apex Court discharged the appellant from the offences under the Penal Code. 26. The provision aforesaid of P.C. Act is differently worded and creates a presumption against the accused. Even in cases where accused person has turned hostile or even died, conviction of a person is possible on the basis of statements of other witnesses including panch witnesses. This aspect was considered by Apex Court in N. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 . In the said case, both the complainants and even panch witnesses had turned hostile. The argument of accused persons that prosecution can succeed in establishing the demand only when complainant supports their case was repelled by considering the expression 'shall presume' employed in Section 20(1) of the said Act. Direct evidence is held to be only one of the modes through which a fact can be proved. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra). It was clearly held that as per the facts of the case, the chances of conviction in a criminal trial involving the same facts appear to be bleak. On this basis, the interference was made by Supreme Court. 29. The Apex Court in Radheshyam Kejrival (supra) in para 38 opined that the finding in adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. The nature of finding of inquiry officer/disciplinary authority in the present cases shows that the whole finding is based on the statement of complainant and Shri Mimrot. The prosecution in the criminal case has based its case on various other witnesses including 'panch' witnesses etc. Thus, upon considering the provisions of P.C. Act mentioned herein above, we are unable to hold that chances of conviction of petitioners in the criminal trial involving the same facts are totally bleak. We are unable to hold that the nature of findings mentioned in the order of disciplinary authority forms any legal impediment for proceeding with the criminal case. Thus, in our view, even the judgment of Radheshyam Kejrival (supra) and Ashoo Sundarnath Tiwari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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